Sakowski v. Baird

• Citation: 69 S.W.2d 649,334 Mo. 951
• Parties: Mollie A. Sakowski v. M. S. Baird, Doing Business as Webster-Kirkwood Bus Line and De Luxe Bus Line, Appellant
• Decision Date: 14 March 1934
• Court: United States State Supreme Court of Missouri

69 S.W.2d 649

334 Mo. 951

Mollie A. Sakowski v. M. S. Baird, Doing Business as Webster-Kirkwood Bus Line and De Luxe Bus Line, Appellant

Supreme Court of Missouri

March 14, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Jerry Mulloy, Judge.

Reversed and remanded (with directions).

Allen Moser & Marsalek for appellant.

(1) The court's action in giving defendant's Instruction 2 was proper, and consequently the court erred in granting the plaintiff a new trial because of the giving of said instruction. (a) The plaintiff having offered no instructions for the jury's guidance, save on the measure of damages the defendant was entitled to have the jury clearly instructed as to the issues and the defense. Rath v Knight, 55 S.W.2d 684. (b) Defendant was entitled to an instruction affirmatively submitting his theory of the case. Collins v. Ranken Farms, 180 S.W. 1054; Jennings v. Cooper, 230 S.W. 328. (c) Even though the plaintiff's case was bottomed on the res ipsa loquitur theory, defendant's Instruction 2 was correct in telling the jury that they were not warranted in finding in favor of plaintiff unless they found and believed from the evidence that the defendant was negligent, and that such negligence was the proximate cause of her injury, if any. Steffen v. Bell Tel. Co., 56 S.W.2d 51; McCloskey v. Koplar, 46 S.W.2d 564; Mackler v. Barnert et ux., 49 S.W.2d 247; Sanders et ux. v. Carthage, 51 S.W.2d 533; Duggan v. St. Louis Pub. Serv. Co., 56 S.W.2d 626. (d) It is presumed that all reasons assigned in the motion for a new trial except the ground on which the new trial was granted were properly overruled by the trial court. Porter v. Railroad Co., 325 Mo. 391.

T. Joseph Byrth, Barak T. Mattingly and Green, Henry & Remmers for respondent.

(1) The trial court was right in sustaining plaintiff's motion for a new trial. Instruction 2, given at the request of the defendant, is palpably erroneous. Glasco Elec. Co. v. Union Elec. L. & P. Co., 61 S.W.2d 958; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Steffen v. Bell Tel. Co., 56 S.W.2d 51. (2) In determining whether or not a new trial was properly granted the appellate court is entitled to consider not only the specified ground on which the new trial was granted, but also other assignments of error contained in the motion for a new trial. Cole v. Ry. Co., 61 S.W.2d 347. (3) Instruction 5, given at the request of defendant, is erroneous. An instruction upon the subject of accident should not be given unless an accident be both pleaded and proven. Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 711; Wise v. St. Louis Transit Co., 198 Mo. 560, 95 S.W. 902. (4) Defendant cannot complain that plaintiff's instructions were only upon the subject of the measure of damages, as no objection was made and no exception taken to plaintiff's failure to more fully instruct. Freeman v. Berberich, 60 S.W.2d 396.

Ferguson, C. Sturgis, C., concurs in result; Hyde, C., concurs.

OPINION

FERGUSON

Action for damages for personal injuries. Defendant owned and operated motor busses as a common carrier of passengers for hire, in St. Louis County, under the name of "Webster-Kirkwood Bus Line" and "De Luxe Bus Line." Plaintiff was injured on August 27, 1929, while a passenger on one of defendant's busses when, as plaintiff's petition alleges and proof shows, "one of the rear wheels of the said motor bus was broken off and detached therefrom and one corner of the said motor bus was let down violently upon the ground, causing plaintiff to be thrown against the floor and seats" inflicting the injuries complained of. Damages in the sum of $ 25,000 are asked. The answer was a general denial. The petition invokes the res ipsa loquitur doctrine and concededly under the petition and evidence on the part of the plaintiff that doctrine applies. It is a typical res ipsa case. The plaintiff did not offer or request any instructions except one on the measure of damages which was given. Four instructions, numbered 2, 3, 4, and 5, requested by defendant, were given. The verdict of the jury was for defendant but the court sustained plaintiff's motion for, and granted, a new trial, the sole ground therefor specified of record being that error was committed in the giving of instruction numbered 2 at the request of the defendant. Said instruction is as follows:

"The Court instructs the jury that although you believe and find from the evidence that the plaintiff in this case was injured, this fact alone, regardless of how serious such injuries to her person may be, will not warrant you in finding in favor of the plaintiff for any sum unless you further find and believe from the evidence that the defendant was negligent and that such negligence, if any, was the proximate cause of such injury, if any."

The defendant appealed from the order granting a new trial and contends here that the court erred in granting a new trial on the ground assigned.

As the instruction states the fact that plaintiff sustained injuries to her person in itself and alone did not warrant the jury "in finding in favor of the plaintiff;" but a verdict for plaintiff required that the jury not only find from the evidence that she sustained an injury but also that the defendant was in some way negligent and that such negligence was the proximate cause of the injury. The defendant was not liable as an insurer but only for failure to exercise the proper care in the inspection, maintenance and operation of his bus. Plaintiff did not see fit to offer or request any instructions defining her theory or advising what finding by the jury would warrant a verdict in her favor and so far as the plaintiff was concerned the jury were left without any guidance whatsoever. In the absence of any direction from the court as to the law governing defendant's liability, if any, and how same should be determined or arrived at the jury might have supposed or conceived the theory that defendant was liable as an insurer and that regardless of whether the defendant was in some way negligent and such negligence the proximate cause of the injury the fact alone that plaintiff sustained an injury while a passenger on defendant's bus made defendant liable. Under these circumstances it was not amiss for the court, upon defendant's request, to advise the jury that defendant should not be held liable unless the jury believed, from the evidence, that he was in some manner negligent and that such negligence was the proximate cause of plaintiff's injury. The instruction in question does not touch or infringe upon the right of the jury in arriving at a verdict to weigh the inference of negligence arising from the occurrence and the evidence offered by defendant to explain the accident, but merely tells the jury that they must find and believe from the evidence that defendant's negligence was the proximate cause of plaintiff's injury. It was plaintiff's right in the first instance to submit clear, full and explicit instructions setting forth the matters which the jury might properly consider and the scope, extent and legal effect thereof but she elected not to do so and is not in a position to complain that defendant did not do so for her. Having neglected to offer instructions outlining her right to recover under the res ipsa loquitur doctrine, plaintiff cannot complain that defendant's instructions did not do so. The principal argument respondent makes, in her brief, against the instruction is that it denies plaintiff the benefit of "the presumption of negligence arising from the happening of the extraordinary event detailed in evidence" citing and quoting from our decision in Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W.2d 955. We do not understand how the instruction deprives the plaintiff of that inference or presumption of negligence that arises upon proof of the happening of the event which results in a plaintiff's injury under conditions and circumstances which make the res ipsa rule applicable. It merely states an essential requirement to recovery in every case founded upon negligence whether it be a res ipsa or ordinary negligence case. The res ipsa rule supplies a substitute for specific proof or proof of specific negligence and a method by which plaintiff may prove the negligence charged but to tell the jury, under circumstances such as exist in this case, that to hold defendant liable for plaintiff's injury they must believe defendant was negligent and that such negligence was the proximate cause of the injury does not go to the manner or method by which plaintiff may show such negligence on the part of the defendant and if, as we have said, plaintiff wished to have the jury informed as to the theory upon which she relied for recovery she should have prepared and offered proper instructions. Plaintiff not only did not offer such instructions but made no objection and saved no exception to the giving of any of the instructions offered by defendant. Coming now to Glasco Electric Co. v. Union Electric Light & Power Co., supra, upon which respondent relies we note that the verdict and judgment there was for defendant and the plaintiff appealed. The petition charged general negligence. Defendant claimed plaintiff's "evidence tends to show specific negligence" and for that reason the doctrine of res ipsa loquitur did not apply. Having held that under its pleading and proof plaintiff was entitled to the benefit of, and to rely upon, the res ipsa loquitur doctrine we ruled as follows upon an instruction offered by defendant and given by the court and held the giving thereof was error:

"With the view we have of this case, we think the trial court erred in giving instruction numbered 4, offered by defendant, as follows: 'The cou...