Ruehling v. Pickwick-Greyhound Lines

• Citation: 85 S.W.2d 602,337 Mo. 196
• Parties: Hugo Ruehling v. Pickwick-Greyhound Lines, Incorporated, Appellant. Hugo Ruehling, Appellant, v. Pickwick-Greyhound Lines, Incorporated, and Melville Dahncke
• Decision Date: 09 July 1935
• Court: United States State Supreme Court of Missouri

85 S.W.2d 602

337 Mo. 196

Hugo Ruehling v. Pickwick-Greyhound Lines, Incorporated, Appellant. Hugo Ruehling, Appellant, v. Pickwick-Greyhound Lines, Incorporated, and Melville Dahncke

Supreme Court of Missouri

July 9, 1935

Motion for Rehearing Overruled July 9, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge.

Reversed and remanded.

Wilton D. Chapman for Pickwick-Greyhound Lines, Incorporated.

(1) The cause of action being predicated wholly upon the negligence of appellant's employee, and the jury having found that the negligent acts alleged were not the proximate cause of plaintiff's injuries, the verdict should be reversed outright. McGinnis v. Ry. Co., 200 Mo. 347; Michely v. Miss. Valley Struc. Steel Co., 299 S.W 830; So. Ry. Co. v. Harpin, 68 S.E. 1103; Williams v. Hines, 86 So. 695; Loveman v Bayless, 160 S.W. 841; Pangborn v. Buick Motor Co., 105 N.E. 423; Doremus v. Root, 63 P. 572; Indiana Nitroglycerine Co. v. Lippincott Glass Co., 75 N.E. 649; Railroad Co. v. Jopes, 142 U.S. 18; Hobbs v. Ill. Cent., 152 N.W. 40; Simple v. So. Pac., 177 P. 871; Bardwell v. Shelton, Jr., Store Co., 4 S.W.2d 479. (2) The court erred in permitting the jury to consider the voluntary statement of witness that her case had been settled by appellant. Distlar v. Life Ins. Co., 206 Mo.App. 263, 227 S.W. 133; Scharff v. Standard Tank Car Co., 214 Mo.App. 658, 264 S.W. 56. (3) When an unfair and untruthful inference is raised in the mind of the jury by insinuations of plaintiff's counsel, defendants should be permitted to refute that inference. Mann v. Weiss, 185 Mo.App. 345. (4) Plaintiff's Instruction 2 should not have been given, as it permitted the jury to find against appellant without considering the contributory negligence, if any, of plaintiff. (5) The verdict was grossly excessive.

Gallant & Hannigan and Robert L. Aronson for Hugo Ruehling.

(1) Instruction 4 was erroneous because the theory of contributory negligence which was set forth therein had not been pleaded in the answer of defendants. Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Lyons v. Wells, 270 S.W. 129; Bullmore v. Beeler, 33 S.W.2d 161; Benson v. Smith, 38 S.W.2d 749; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788; Abbott v. Ry. Co., 83 Mo. 271. (2) Instruction 3 was defective in failing to require that defendants exercise the highest degree of care to avoid collision under the humanitarian doctrine of negligence. Sec. 7775, R. S. 1929; Robinson v. Ross, 47 S.W.2d 122; Bruce v. East Side Packing Co., 6 S.W.2d 986; Hults v. Miller, 299 S.W. 35; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Martin v. Fehse, 55 S.W.2d 440; Payne v. Reed, 59 S.W.2d 43, 332 Mo. 343; Niehaus v. Schultheis, 17 S.W.2d 603; Roark v. Stone, 30 S.W.2d 647, 224 Mo.App. 554. (3) It was error for the court in this case to give and deliver to the jury four forms of verdict, since the liability of the employer for the acts of the employee had been conceded by counsel for defendants, and there was no issue of agency nor of independent liability. 64 C. J., pp. 1062-63, sec. 870. (4) It is proper to interrogate a witness on cross-examination as to prior inconsistent statements for the purpose of impeaching him and of affecting his credibility. State v. Allen, 183 S.W. 329, 267 Mo. 49; St. Louis v. Worthington, 52 S.W.2d 1003, 331 Mo. 182.

Gallant & Hannigan and Robert L. Aronson for respondent.

(1) Ground of motion for new trial, charging that judgment was against the law and the evidence, is not sufficiently specific to preserve question for appellate review. Bond v. Williams, 214 S.W. 202, 279 Mo. 215; Lynch v. Ry. Co., 106 S.W. 68, 208 Mo. 1; De Maria & Janssen v. Baum, 52 S.W.2d 418, 227 Mo.App. 212; Whitehead v. Liberty Natl. Bank, 56 S.W.2d 833; Belcher v. Haddix, 44 S.W.2d 177; Williams v. Jenkins, 32 S.W.2d 580, 326 Mo. 722; Greer v. Carpenter, 19 S.W.2d 1046. (2) An assignment of error that verdict is against the law is insufficient for indefiniteness and presents no question. Matthews v. Karnes, 9 S.W.2d 628; Pfotenhauer v. Ridgway, 271 S.W. 50, 307 Mo. 529; State ex inf. Barrett ex rel. McCann v. Parrish, 270 S.W. 688, 307 Mo. 455; Harmon v. Irwin, 219 S.W. 392; McCahon v. Quick Service Laundry Co., 263 S.W. 238; Howlett v. Randol, 39 S.W.2d 463; State ex rel. Ward v. Trimble, 39 S.W.2d 372, 327 Mo. 773; Campbell v. Campbell, 20 S.W.2d 655. (3) Appellant cannot complain of statements by a witness elicited by the cross-examination of appellant's counsel. The matter of declaring a mistrial for alleged prejudicial remarks of a witness rests within the discretion of the trial court. Scharff v. Standard Tank Car Co., 264 S.W. 56; Distler v. Columbian Natl. Life Ins. Co., 227 S.W. 133; Plannett v. McFall, 284 S.W. 850. Cases under point 1. (4) The appellant was not entitled to rehabilitate its witness Felhaber after successfully objecting to his impeachment. Kent v. Miltenberger, 15 Mo.App. 480. (a) Former statements not under oath are not admissible to corroborate a witness. State v. Creed, 252 S.W. 678, 299 Mo. 307; Radler v. Ry. Co., 51 S.W.2d 1011, 330 Mo. 968. (b) The trial court properly excluded from evidence the conclusions and opinions of the witness. (c) The scope of cross-examination and of redirect examination are largely within the discretion of the trial court. (5) Any possible deficiency in Instruction 2 by omission of reference to the issue of contributory negligence is cured and supplied by defendants' Instructions 3, 4 and 5 on that issue; the entire charge must be read together. Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Johnson v. Boaz-Kiel Const. Co., 22 S.W.2d 881; Smith v. Gately Stores, 24 S.W.2d 200; Allison v. Dittbrenner, 50 S.W.2d 199; Kaiser v. Jaccard, 52 S.W.2d 20; Mitchell v. Ry. Co., 69 S.W.2d 290; Davis v. Independence, 49 S.W.2d 101, 330 Mo. 201. (6) The verdict is not excessive. Beebe v. Kansas City, 34 S.W.2d 57, 327 Mo. 67; Morris v. Atlas Portland Cement Co., 19 S.W.2d 865; Snyder v. American Car & Foundry Co., 14 S.W.2d 603; Wheeler v. Ry. Co., 18 S.W.2d 494; Trussell v. Wright, 285 S.W. 114; Haberman v. Kuhs, 270 S.W. 399; Farley v. Lehrack, 272 S.W. 987. (7) Plaintiff's judgment against respondent should not be ordered retried as to amount merely because plaintiff is successful on his appeal in the companion case.

Wilton D. Chapman for Melville Dahncke.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Plaintiff was injured when an automobile he was driving and a bus, owned and operated by the corporate defendant Pickwick-Greyhound Lines and in charge of the defendant Melville Dahncke, collided on Missouri State Highway 61 at or near the intersection of that highway and State Highway No. 25. Plaintiff brought this action for damages for the injuries so sustained. The petition alleges that the defendant Pickwick-Greyhound Lines is a corporation owning and operating motorbusses over Missouri State Highway 61 and that defendant Dahncke "was at all times mentioned the agent and chauffeur of the defendant Pickwick-Greyhound Lines." It is then alleged that the collision was caused by the negligent manner, in several specified respects, in which Dahncke drove the bus predicating the liability of the Pickwick-Greyhound Lines, the corporate defendant, wholly and solely upon the rule or doctrine of respondeat superior. Plaintiff asked damages in the sum of $ 40,000. Defendants filed a joint answer, a general denial followed by allegations to the effect that "whatever injuries, if any" plaintiff received "were directly due to or were contributed to by plaintiff's own negligence and carelessness" in the manner stated. Plaintiff's replication was a general denial. Upon a trial in the Circuit Court of the City of St. Louis the jury returned the following verdict: "We, the jury in the above entitled cause, find the issues herein joined in favor of the plaintiff and against defendant Pickwick-Greyhound Lines, Inc., a corporation, and we assess plaintiff's damages at the sum of $ 7500 (seventy-five hundred dollars) and we further find in favor of defendant Melvin Dahncke." The motion of the Pickwick-Greyhound Lines for a new trial was overruled as was plaintiff's motion for new trial as to defendant Dahncke and judgment entered in conformity with the verdict from which both plaintiff and the Pickwick-Greyhound corporation appealed.

While any party to the action considering himself aggrieved may appeal from the judgment cross-appeals or separate appeals in the same case are not received and treated as separate cases in the appellate court but "the case retains its unity throughout the appeal" and is "properly only one case in that appellate court which has jurisdiction." [Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839; Morton v. Southwestern T. & T. Co., 280 Mo. 360, 217 S.W. 831; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390.] As each appellant has separately perfected an appeal and each has been separately docketed here (Pickwick-Greyhound Lines' appeal as No. 32959, and plaintiff's appeal as No. 32960) we make the foregoing observation and proceed to a consideration of the two appeals as one case. In view of the cross-appeals the amount in dispute is such as to give this court jurisdiction. [See cases cited supra.]

Pickwick-Greyhound Corporation, as appellant, submits that the verdict and judgment in this case cannot stand since under the pleadings the corporate defendant's liability, if any, is wholly dependent upon a finding by the jury that the alleged negligent acts of its employee caused plaintiff's injuries and the servant having been exonerated by the verdict of the jury it follows that there can be no liability on the part of the...