Scott v. Club Exchange Corp.

• Decision Date: 05 December 1977
• Docket Number: No. 28738,28738
• Citation: 560 S.W.2d 289
• Parties: Myrtle L. SCOTT, Respondent, v. CLUB EXCHANGE CORPORATION, Attorney in Fact for the Automobile Inter Insurance Exchange, Appellant.
• Court: Missouri Court of Appeals

Page 289

560 S.W.2d 289

Myrtle L. SCOTT, Respondent, v. CLUB EXCHANGE CORPORATION, Attorney in Fact for the Automobile Inter Insurance Exchange, Appellant.

No. 28738.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

Application to Transfer Denied Feb. 8, 1978.

Max Von Erdmannsdorff, Von Erdmannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for appellant.

Snowden, Crain & DeCuyper, Joseph Y. DeCuyper, Hsiang-Lin Lee, Kansas City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for Myrtle L. Scott in action under uninsured motorist coverage for damages for death of her husband sustained when his automobile, northbound on Interstate 29, came into collision with the wreckage in his right of way of an automobile theretofore also operated northbound on I-29 by one Jessie Virginia Malcolm who perished in the wreckage of her vehicle prior to the Scott collision. The questions are whether the res ipsa loquitur doctrine is available to plaintiff in the unusual circumstances of this case; and, if so, whether her action fails for failure to comply with notice provisions of her policy. Affirmed.

The doctrine applies when the occurrence resulting in injury was such as does not ordinarily happen if those ¹ in charge use due care, the instrumentalities 2 involved were under the management and control of the defendant, and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Furlong v. Stokes, 427 S.W.2d 513, 517(2) (Mo.1968).

Appellant contends that plaintiff was not entitled to submit her case under the res ipsa loquitur doctrine, asserting: that there has been no showing that the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; that the case is not one in which the instrumentalities involved were under the management and control of defendant; that defendant does not possess superior knowledge or means of information as to the cause of the occurrence; and that plaintiff failed to prove lack of contributory negligence on the part of her decedent.

On January 2, 1973, Raymond E. Scott, age 57, in good health, was living at 5056 Tarkio Northeast, Kansas City, Clay County, Missouri, with Myrtle L. Scott to whom he had been married for 32 years. Mr. Scott was a superintendent for Garney Construction Company on a waterline job in Rulo, Nebraska. He had been on that job for three or four months during which he would be away from home during the week and at home weekends. On January 2, 1973, he arose at his home around 3:00 A.M., had his breakfast, and left the house at approximately 4:00 A.M. His normal route to Rulo was by way of northbound Interstate 29. Mrs. Scott did not go back to sleep and heard of an accident on I-29. "I didn't know it was him. Then I got a call shortly after from the hospital * * * to go where his car was, and I went there, and then directly from there to the hospital."

John Blankenship, an over-the-road truck driver of 10 years' experience and a driver for Consolidated Freightways, left its terminal in Kansas City, Missouri, around 3:30 A.M., January 2, 1973, driving a two-trailer and tractor rig on a regular run to North Platte, Nebraska. His route also was by way of northbound I-29, and at approximately three-tenths of a mile north of the 92 spur on I-29 near Platte City, Missouri, he came upon a vehicular accident. At that location, "you kind of go around the corner there to the right, and kinda on an uphill grade, kind of in a blind spot in the road is what I would call it, * * * you can't get a clear vision of what's on down the road ahead of you there until you get a little higher. * * * it seems to me like where the accident happened was * * * like you'd be driving up the road and you'd get a clear vision of what was ahead of you you'd be on top of the accident." Mr. Blankenship's first knowledge of the casualty "was a Yellow Transit truck ahead of me * * * he had a pretty hard time getting stopped and I think he ended up more in the left lane than he did in the right lane * * * kind of stopped at an angle * * * like he was kind of undecided whether he was going to get stopped or not." Mr. Blankenship went up to the first vehicle "which was the Scott vehicle, and the man was sitting in there behind the wheel * * * the other car * * * was laying there upside down in the highway and the top was all smashed down on it * * * I walked around to the north side of the car and I seen this lady's * * * arm sticking out from underneath the top of the car." He did not see any lights on the lady's car, and did not recall any headlights burning on the Scott car. "(H)is taillights might have been on * * * the lady's car was laying upside down facing the west and the Scott vehicle was still facing northbound about in the driving lane or maybe just a little bit to center of it * * * she was pretty much in the driving lane * * * she pretty well had the highway * * * blocked." The radiator was steaming on the Scott car. He did not see the lady; he detected no odor of alcohol on the man. "(I)t looked to me like that she had ran off the road and ran into one of those highway signs * * * she had one of these big highway signs completely wrapped around the front of her car where she had ran over it." Her car was "just smashed flat on top * * * and then where * * * he ran into the side of her was buggered up." He talked with Mr. Scott. "He just said he came upon it and there it was, said he didn't have time to do anything hardly." He observed where "she ran off the road and hit the sign and came back on the highway * * * upside down." He "wouldn't want to be driving down the highway at the speed limit and just run up there and try to get around * * * if you was already stopped and you already knew * * * that you had room enough to get around you might try it, but if I was coming down the road in that truck and I ran up on this accident I sure wouldn't * * * try to drive around it. * * * I would have tried to have gotten stopped, but * * * you just can't run upon something and just run off the road."

Trooper James Dale Morrison of the Missouri State Highway Patrol was about 20 miles south of the casualty scene when he received a call to investigate. He fixed the time of the casualty at 4:35 A.M. The casualty occurred in the northbound lane of I-29, approximately three-tenths of a mile north of 92 spur overpass. I-29 at the scene is a four-lane highway with two northbound and two southbound lanes separated by a median. The traveled portion of the northbound lanes is 23 feet wide. There is a 6-foot shoulder on the west or median side and a 10-foot shoulder on the east or ditch side. He observed "one car upside down pointing toward the west, this was in the driving lanes of 29, the second vehicle a few feet south of that car on its wheels." The latter was headed generally northeast, and its driver identified himself as Raymond Edward Scott. "I wrote down his estimated speed at 70, and his injuries, he complained of chest injuries and he told me he was wearing a 'lap belt.' " Mr. Scott was lucid and alert and made some statements about the occurrence but the trooper did not write them down and could not recall them. The other driver, Mrs. Malcolm, "had partial ejection out of the driver's window and the car was resting on her head and neck." She had already expired. With respect to the path of Mrs. Malcolm's car south of the scene, "there were tire tracks leaving the driving lane, or the right hand lane, on the right shoulder. The tire tracks were visible for 153 feet. There the vehicle apparently struck a highway sign * * * the tracks continued, the left wheels were on the shoulder, and the right wheels were on the dirt edge of the shoulder. There was an indentation in the dirt embankment where car one (Malcolm) had apparently struck this embankment causing it to overturn on its top * * * there were metallic marks on the pavement * * * from the top of the car when it overturned, and pieces of driver number one's body was found in this area, along with the skid marks." The Malcolm car traveled 85 feet after striking the sign and up to the embankment, after which there were the metallic scuff marks and blood in a trail 96 feet northwest from the embankment to where the car "stopped or was struck by number two (Scott)" when number one was crosswise or upside down in northbound I-29. One hundred one feet of skid marks leading southward from the Scott vehicle also ended there, and such point of impact was marked with glass and pieces of chrome from the grill of the Scott car. At that point Mrs. Malcolm's vehicle "kind of spun in a counter-clockwise direction, it was knocked for an additional forty-seven feet." The Scott vehicle, a 1969 Ford two-door, was damaged across its front end which was not pushed up to the driver's seat, i. e., "not that much force." The Malcolm vehicle, a 1967 Chevrolet two-door, was demolished. "The top of the car was caved in." Trooper Morrison estimated the speed of both vehicles to have been at 70 miles per hour. He did not detect any odor of alcohol on either driver, and stated the speed limit as 70 miles per hour.

Mr. Scott was taken by ambulance to Spelman Hospital in Smithville, Missouri, where he was found to be in acute distress. He continued downhill and died January 6, 1973, of "shock lung syndrome, rib fractures, pneumothorax and * * * " as a result of injuries sustained in the accident.

Defendant stood on a motion for directed verdict at the end of plaintiff's case. Plaintiff's case was submitted as a res ipsa loquitur case in the form of MAI 31.02(1). Defendan...