Ruby v. Clark

• Decision Date: 12 January 1948
• Docket Number: 40214
• Citation: 208 S.W.2d 251,357 Mo. 318
• Parties: Leary Ruby, Administratrix of the Estate of Sam Samples, Deceased, Appellant, v. O. C. Clark
• Court: Missouri Supreme Court

208 S.W.2d 251

357 Mo. 318

Leary Ruby, Administratrix of the Estate of Sam Samples, Deceased, Appellant, v. O. C. Clark

No. 40214

Supreme Court of Missouri

January 12, 1948

Rehearing Denied February 9, 1948.

Appeal from Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.

Reversed and remanded.

J Grant Frye and Gerald B. Rowan for appellant.

(1) The court will consider all the evidence of plaintiff as true and give the plaintiff the benefit of every inference of fact which can be reasonably drawn therefrom, in passing on the sufficiency of the evidence to make a submissible case. Nash v. Normandy State Bank, 201 S.W.2d 299. (2) Appellant made a case for the wrongful death of deceased due to excessive speed of the automobile driven by defendant. Secs. 8383, 8401 (g), 8401 (f), R.S. 1939; Bramblett v Harlow, 75 S.W.2d 626; McCloskey v. Renne, 37 S.W.2d 950, 225 Mo.App. 810; Nash v. Peoples Motorbus Co., 20 S.W.2d 570; Cox v. Reynolds, 18 S.W.2d 575; Burton v. Phillips, S.W.2d 712; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; Goff v. St. Louis Transit Co., 98 S.W. 49; Yongue v. Railroad Co., 112 S.W. 985; Buesching v. Gaslight Co., 73 Mo. 219; Knight v. Gosselin, 12 P.2d 454; Tomlinson v. Kiramidjian, 24 P.2d 559; Hala v. Worthington, 31 A.2d 844; LeBlanc v. Pierce Motor Co., 30 N.E.2d 684, 307 Mass. 535; Williams v. State, 155 A. 339. (3) The facts necessary to make a submissible case are virtually all shown by circumstantial evidence, but the fact that there were no eyewitnesses and that the case of appellant depended upon circumstantial evidence, is not grounds for sustaining a demurrer to the evidence, when all the evidentiary facts necessary to make a case are shown. Payne v. Reed, 59 S.W.2d 43, 332 Mo. 343; Van Brock v. 1st Natl. Bank in St. Louis, 161 S.W.2d 258, 349 Mo. 425; Hasenjaeger v. M.-K.-T.R. Co., 53 S.W.2d 1083, 227 Mo.App. 413. (4) Plaintiff was not required to prove that decedent was exercising due care at the time he was killed. Stotler v. Chicago & A. Ry. Co., 98 S.W. 509, 200 Mo. 107; Glaser v. Rothschild, 120 S.W. 1, 221 Mo. 180; State ex rel. Mo. Public Utilities Co. v. Cox, 250 S.W. 551, 298 Mo. 427. (5) A general demurrer to the evidence should be overruled if plaintiff makes a case on any assignment of negligence in the petition. Benzel v. Anishanzlin, 297 S.W. 180.

Finch & Finch and Ward & Reeves for respondent.

(1) This action is bottomed upon specific acts of negligence. There were no eyewitnesses to indicate the manner in which the fatal injury occurred. There was no proof that the defendant was operating a motor vehicle which may have struck and killed the deceased. The mere proof that the deceased was found on the side of the highway fatally injured wholly fails to establish any of the grounds of negligence charged in the petition, and the trial court correctly sustained defendant's motion for directed verdict. Darby v. Henwood, 328 Mo. 59, 145 S.W.2d 376; Warner v. Railway Co., 178 Mo. 125; Miller v. Wilson, 288 S.W. 997; Davis v. Railroad, 155 Mo.App. 312; Roundtree v. Fountain, 203 N.C. 381, 166 S.E. 329. (2) It is a recognized principle of law that a verdict must not be based upon speculation, nor by piling one inference upon another. The proof in this case is wholly lacking in necessary facts to create a jury question upon circumstantial evidence. State ex rel. v. Cox, 298 Mo. 427, 250 S.W. 551; Hamilton v. Railroad, 318 Mo. 123, 300 S.W. 787; State ex rel. v. Cox, 310 Mo. 367, 276 S.W. 869; Pointer v. Construction Co., 269 Mo. 104, 189 S.W. 805; Strother v. Railroad, 188 S.W. 1102; State ex rel. v. Bland, 313 Mo. 246, 281 S.W. 690; State ex rel. v. Trimble, 12 S.W.2d 727; Kane v. Railroad, 251 Mo. 13; Swearingen v. Railroad, 221 Mo. 644; Harper v. Railroad, 187 Mo. 575; Yarnell v. Railroad, 113 Mo. 570; O'Malley v. Railroad, 113 Mo. 319; Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282. (3) The burden of proof in this case was upon the plaintiff to establish by the greater weight or preponderance of the evidence some one or more of the grounds of negligence alleged in her petition. As a matter of law, this burden was not sustained and the trial court was correct in so ruling. Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Conley v. Coach Co., 348 Mo. 1243, 159 S.W.2d 281; State ex rel. v. Trimble, 18 S.W.2d 4; Winter v. Van Blarcom, 258 Mo. 418; Hartman v. Railroad, 261 Mo. 279; Wecker v. Ice Cream Co., 31 S.W.2d 974; Evans v. Construction Co., 343 Mo. 632, 122 S.W.2d 924.

OPINION

Bradley, C.

Action to recover $ 10,000 for the alleged wrongful death of plaintiff's son. The trial court directed a verdict for defendant; verdict was returned as directed and judgment for defendant entered thereon. Plaintiff's motion for a new trial was overruled and she appealed.

Plaintiff alleged that deceased was struck and killed by an automobile driven by defendant and that she was the administratrix of his estate. It is alleged that deceased was killed on the night of January 29, 1944; that he left surviving no wife or child, natural born or adopted, and that plaintiff was dependent upon him; that deceased, when struck and killed, was walking across highway 61 at the intersection of said highway and 4th street in Portageville; that the death of deceased was caused by the negligence of defendant as follows: (1) That he drove said motor vehicle at a high and dangerous rate of speed under the circumstances; (2) that he failed to keep a lookout for other persons using said highway; (3) that he failed to keep his motor vehicle under control so as to be able to stop the same upon the reasonable appearance of danger; (4) that he drove said motor vehicle while drunk and while under the influence of intoxicating liquor; (5) that he drove said motor vehicle with the brake appliances in defective condition; (6) that after striking deceased he dragged his body approximately 100 feet along the highway giving deceased further injuries directly contributing to and accelerating his death; (7) that he failed to stop his motor vehicle and summon aid for the deceased who was wounded and permitted him to lie unattended along and on the highway when prompt and dutiful attention by the defendant and the securing of aid would have increased the probability of deceased surviving such injuries; and (8) that defendant saw deceased walking on said highway oblivious of the approaching motor vehicle of defendant and at such a distance from deceased that deceased was unable to get out of the path thereof but was in a position of imminent peril of being struck thereby at a time when defendant saw deceased in such position and circumstances and could have slowed down his motor vehicle, stopped the same, or turned it aside, but failed so to do. Except as to the admission that plaintiff was the administratrix of her son's estate, the answer was a general denial.

About 12:15 A.M., January 30, 1944, Sam Samples, age 45, was discovered mortally injured about 10 feet west of highway 61 in Portageville, New Madrid County, Missouri. He died shortly thereafter without making any statement. There was upon the back of the coat he wore an imprint indicating that the imprint was made by the grill of a 1937 model Chevrolet car. A small piece of a 1937 Chevrolet radiator ornament was found in the coat of deceased, and another piece of a 1937 Chevrolet radiator ornament was found 455 feet north of the place where deceased was found.

About 5 P.M., January 29, 1944, defendant borrowed Dee Wilson's two-seated, black, 1937 Chevrolet; about 11:30 that night he was at the home of Watt Espy about 4 miles north and 5 miles west of Portageville; he was driving, so Espy testified, a two-seated, dark colored car. Espy, with a team of horses, pulled the car defendant was driving out of the ditch. Defendant left Espy's about midnight; went east towards Conran, on highway 61, about 5 miles east of Espy's, and about 4 miles north of Portageville. Espy said defendant was drunk when at his house. Shortly before deceased was found Bill Fisher was locking the door to the place where he worked on the east of highway 61 and the north side of Main Street in Portageville, and a block south of the place where deceased was found, and on the opposite (east) side of highway 61. While locking his door Fisher "heard something hit down there" (north). Then Fisher saw a car coming from the north on highway 61; this car turned west on Main Street at about 45 miles per hour.

Lyman Pemberton, whose wife is defendant's sister, lived about 4 1/2 miles west of Portageville on the Pole road which is a continuation of Main Street. The 1937 Chevrolet that defendant was driving that night quit functioning about 3 miles west of Portageville and when it stopped it was facing west. Pemberton, with an International pick-up truck, pulled the Chevrolet to defendant's cotton gin which was about 2 1/2 miles west and about 4 1/2 miles south of the point where the Chevrolet stopped. Pemberton had no time piece, but said it was "in the early part of the night" when defendant came to his house; that it was "between 8 o'clock and midnight." He said he was gone about 2 1/2 hours and got back home before his wife had looked after the chicken brooder, and that she regularly did that about midnight. However, Clarence Hawkins, who lived about a half mile west of Pemberton, testified that he was up about 1 o'clock that night; that he heard a horn blowing out in front and went to the door; that he "saw a car and a pick-up truck"; that these were close together facing west, the truck in front; that they went on west. On the way to the cotton gin they saw a white rabbit and defendant, or defendant and Pemberton, ran it down and took it along. Pemberton pulled defendant and the...