Schubert v. St. Louis Public Service Co.

• Decision Date: 16 December 1947
• Docket Number: No. 27309.,27309.
• Citation: 206 S.W.2d 708
• Parties: SCHUBERT v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

206 S.W.2d 708

SCHUBERT v. ST. LOUIS PUBLIC SERVICE CO.

No. 27309.

St. Louis Court of Appeals. Missouri.

December 16, 1947.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Elizabeth A. Schubert against St. Louis Public Service Company for injuries suffered by bus passenger. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Transferred to Supreme Court.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwartz, all of St. Louis, for appellant.

Everett Hullverson, of St. Louis (Orville Richardson of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Elizabeth A. Schubert, while a passenger on a bus owned and operated by defendant, St. Louis Public Service Company. The jury, by a unanimous verdict, awarded plaintiff the sum of $4,500. Judgment was rendered accordingly; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper steps has caused the case to be transferred to this court for our review.

Plaintiff, a widow sixty-one years of age, was employed at the time of the accident in the stock room of Stix, Baer & Fuller, a department store in the City of St. Louis. On the morning of the accident, which occurred on January 7, 1946, she had taken one of defendant's Gravois buses on her way to work. The accident happened on Seventh Street, some little distance south of Lucas Avenue, opposite the employees' entrance to the store. As the bus proceeded northward across Washington Avenue, plaintiff signaled for the stop at Lucas Avenue, and then started back through the aisle towards the exit door, holding on to the seats because of the fact that the bus was going "very fast." Suddenly the bus gave a "terrific jerk," throwing plaintiff forward and swinging her body completely around so that her left hip struck against a seat near the spine, producing what was afterwards found to be a fracture of the ramus pubis, one of the bones composing the pelvis.

In her petition, which counted upon the doctrine of res ipsa loquitur, plaintiff alleged that the bus suddenly and violently jerked, jarred, and jolted in an extraordinary, unusual, and unexpected manner as the direct result of the carelessness and negligence of defendant, causing her to be thrown against the seat and injured.

Defendant's answer was in effect a general denial, coupled with a plea that on January 9, 1946, plaintiff had executed and delivered to defendant a written release for the consideration of $10, whereby she had forever released and discharged defendant from any and all liability on account of the accident in question.

For her reply plaintiff averred that she had no knowledge of having executed such release, but that if she did so, it was done either through mistake or fraud on the part of defendant's agent who was discussing the matter with her; that she was under the impression, fraudulently induced by defendant, that the paper she signed was a receipt for the advancement of $10 for the purpose of having X-ray pictures taken; that defendant fraudulently stated that the $10 was for such purpose; that at no time did she intend to execute a release of her cause of action; that at the time in question she was in serious pain, and had visited defendant's office for the purpose of securing medical assistance, and not for the purpose of settling her claim; that the release pleaded by defendant was fraudulently and wrongfully procured by defendant as aforesaid; and that the same, under the circumstances, did not constitute a settlement or release of her cause of action.

She further alleged that the consideration stated in such release was so inadequate as to be unconscionable, and that the sum referred to could not be proper compensation.

Defendant argues as a matter of chief insistence that the court erred in refusing to direct a verdict in its favor for the reason that the release executed by plaintiff was valid as a matter of law.

Plaintiff suggests that the court's refusal of a directed verdict is not properly here for our review because of the generality of defendant's motion, which merely set up as the basis for the action which defendant desired the court to take that "under the law and the evidence plaintiff is not entitled to recover."

We appreciate the fact that under the new code a party who moves for a directed verdict must make known to the court the ground or grounds upon which he relies (Oganaso v. Mellow, Mo.Sup., 201 S.W.2d 365); and by analogy it would seem that such language as was employed in defendant's motion would be too indefinite, in and of itself, to satisfy this requirement, where the plaintiff's right to go to the jury involves more than a single issue. Muegler v. Crosthwait, Mo.App., 179 S.W.2d 761.

But while the Supreme Court held in Oganaso v. Mellow, Mo.Sup., 201 S.W.2d 365, that a party moving for a directed verdict must make known to the court "his grounds therefor," Laws 1943, p. 389, sec. 122, Mo.R.S.A. § 847.122, it did not hold that the grounds must in all events be stated in the motion itself, but indicated that the code provision would be sufficiently complied with whether the grounds were actually incorporated in the motion, or whether the record recited that they were orally brought to the court's attention at the time. It particularly commended the practice which prevails in trial courts of affording counsel an opportunity to be heard orally when a motion for a directed verdict is made.

In the case at bar it is true that the record shows no oral argument on the motion for a directed verdict at the close of the whole case. The record does show, however, that at the close of plaintiff's case, the motion was "duly argued" in connection with its submission to the court. Despite the generality of the motion itself, the court was therefore apprised of the particular respects in which defendant challenged plaintiff's right to have the case submitted to the jury. Even though not argued, the motion at the close of the whole case necessarily presented the same questions as the motion which had been argued at the close of plaintiff's case, save only as plaintiff's case may have been aided by any favorable evidence which had come from defendant's side of the case. It would appear, therefore, that there was a substantial compliance with the requirements of Section 122, and that the action of the court in denying defendant's motion for a directed verdict is properly here for our review.

In considering the proposition of whether the evidence was legally sufficient to make an issue for the jury upon the question of the validity of the release, defendant appreciates the fact that the evidence must be viewed most favorable from plaintiff's standpoint, taking her own evidence as true and disregarding defendant's evidence except as it may aid her case, and giving her the benefit of all reasonable inferences on all the proof.

Plaintiff testified that immediately after the accident, she went up to the driver and told him, "You should be careful how you drive this bus, you hurt my back." The driver's testimony was in effect the same — that plaintiff came up to him "right away" and told him that "she had been thrown up against one of the seats by a jerk." According to the driver, "she didn't know whether she was hurt or not" (meaning, of course, substantially injured); and when he advised her to give him her name and address, "she said it would be a good idea in case something would turn up later on." The significance of this testimony is that it shows an attitude on plaintiff's part from the very outset corresponding with that she claims to have had in her subsequent dealings with the claim adjuster at the time her signature was obtained to the alleged release. The driver took her name and address, and at the end of the trip turned in a report to the company with the names of two witnesses who were passengers on the bus.

After leaving the bus plaintiff went on to work because she "had to work," and continued on her job all day. She testified, however, that she "felt awful bruised up and very nervous," and that her back pained hen so that when she walked she "would have to hold on things."

Plaintiff resided with a sister, and when she returned home at the close of the day's work, her sister rubbed her back with liniment and assisted her to bed. The sister testified that her assistance was required because of the fact that plaintiff "couldn't lift her leg to get into bed" and "couldn't turn in the bed."

Plaintiff "didn't sleep hardly all night," but nevertheless went to work the second day. It is to be kept in mind that she had no knowledge of the fracture, and so far as objective evidence of injury was concerned, was only aware of a black and blue area between the hip and the spine about the size of her hand.

She "felt worse that night" and "didn't sleep well"; and while at work on the third day (which was the second day after the accident), she decided to call up defendant and ascertain where its office was located. With respect to the purpose she had in mind, she testified: "I wanted to report the case and see if it had been turned in, and I wanted to get their doctor to examine me."

Defendant referred plaintiff to the Buder Building, where an office is maintained by the Transit Casualty Company which "now handles the claims of Public Service Company." The Buder Building is located at Seventh and Market Streets, a distance of six blocks from Stix, Baer & Fuller, where plaintiff was employed. Defendant undertook to make much of the fact that plaintiff walked the distance of six blocks instead of taking a bus as she might have done. Dr. Ambrose testified that plaintiff could have walked the distance with the fracture she had, but that it was undoubtedly painful for her to do so.

At noon pl...