Sculley v. Rolwing

• Decision Date: 03 December 1935
• Docket Number: No. 23383.,23383.
• Citation: 88 S.W.2d 394
• Parties: SCULLEY v. ROLWING.
• Court: Missouri Court of Appeals

88 S.W.2d 394

SCULLEY v. ROLWING.

No. 23383.

St. Louis Court of Appeals. Missouri.

December 3, 1935.

Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.

"Not to be published in State Reports."

Suit by Dave Stout against Ben Rolwing. Judgment for plaintiff, and defendant appeals, and the cause was revived in the name of Mark Sculley, administrator, on plaintiff's death pending the appeal.

Reversed and remanded.

Dearmont, Spradling & Dalton, of Cape Girardeau, and Haw & Haw, of Charleston, for appellant.

Frank K. Ashby and W. Clifton Banta, both of Charleston, for respondent.

HOSTETTER, Presiding Judge.

On the same day this case was argued and submitted the death of Dave Stout was suggested, and Mark Sculley, having been duly appointed his administrator, entered his appearance as such and the cause was revived in his name.

This suit originated in the circuit court of Mississippi county by the filing of a petition on September 23, 1933. The venue was changed and the case sent to the Cape Girardeau court of common pleas.

The following is the pertinent portion of the petition:

"Plaintiff for his cause of action states that on the ____ day of September, 1933, while plaintiff was standing about two (2) feet from the curb on the east side of Franklin street, about ten (10) feet south of the south line of Commercial street, at the intersection of Commercial street and Franklin street in the city of Charleston, Missouri, defendant, Ben Rolwing, was then and there driving an automobile west on the north side of Commercial street. Suddenly and without warning, defendant swerved his car negligently south around the corner of Commercial and Franklin streets on the left and east side of the center line of Franklin street, over, upon and into the plaintiff, Dave Stout. Defendant negligently and unlawfully failed to sound his horn and negligently and unlawfully steered and guided his car on the wrong side of the street without warning onto and into said plaintiff."

It was further alleged in the petition that by reason of said collision plaintiff sustained divers injuries, including permanent injuries to his back, stomach, and lungs, which would prevent him from ever performing any gainful occupation. He asked for $10,000 actual and $10,000 punitive damages.

The answer contained a general denial coupled with a plea of contributory negligence on the part of plaintiff by "jay-walking" across Franklin street near the line of its intersection with Commercial street at a place where he knew there was much traffic by automobiles and other vehicles, and failing to keep any watch for such traffic and by negligently and carelessly turning back and stepping in front of defendant's approaching automobile, when, but for such act, defendant's car would have passed safely behind him.

It was further set out in the answer that defendant had put on his brakes and brought his car almost to a stop before it struck plaintiff and that very little, if any, injury was done plaintiff and that his own negligence directly contributed to such injuries as he did actually receive.

The reply was a general denial.

The first trial, in the last-mentioned court, resulted in a verdict for the plaintiff, which the trial court, on motion of defendant for a new trial, set aside and the second trial was had on June 15 and 16, 1934, which resulted in a verdict for plaintiff in the sum of $4,500, and, after an unavailing motion for a new trial, the defendant brings the cause to this court, by appeal, for review.

Plaintiff was thirty years old at the time of the accident.

In respect to the accident, the evidence disclosed that Commercial street was an east and west street and Franklin street a north and south street, and that defendant was driving west on Commercial street on the right-hand or north side, of the street in his Model T Ford car and as he approached the intersection between Commercial and Franklin streets he saw another car coming east on Commercial street about one-half or three-quarters of a block away from the intersection and with the idea that he would keep out of the way of the approaching car he cut to the left and entered Franklin street on the left-hand or east side of that street at a moderate rate of speed and that plaintiff, about that time, started diagonally across Franklin street going slightly in a southwesterly direction and that after plaintiff had gotten some distance into the street, he, becoming confused, started back, and defendant, holding as close as possible to the east side of Franklin street after he saw plaintiff starting across the street, claimed that he would have missed him had plaintiff continued on and not turned back.

All the testimony showed that the plaintiff was not knocked down, but that he caught onto the car and held on until it was stopped.

The testimony of plaintiff, and of witnesses produced by him, was to the effect that when he started across the street he was only 10 feet, or slightly more, south of the line of Commercial street, whereas, the defendant's testimony showed him starting across the street further south and out of the line of travel regularly used by pedestrians.

The plaintiff's version of the accident is substantially as follows: That he stepped off of the curb onto the street and started to make another step when defendant came around the corner; that he turned around in time to grab the car and that he was hit in the stomach and that he got his right hand under the fender and his left hand on the hood and was dragged backward between 60 and 65 feet and got off on the corner of the alley; that defendant was going 15 or 20 miles an hour; that there was a red streak across his abdomen, both knees skinned, and that there was a cut across one finger and another finger was torn off by his weight mashing down on the car; that he was hit in the ribs; that when he got off the car that he walked around to the barrel, which set near the corner of the alley, and said to defendant, "My God, you killed me," and that defendant replied, "Didn't you see I was trying to knock that other car?" that he later said to Mr. Townsend, deputy sheriff, "My God, catch that man, he has killed me"; that subsequently Mr. Townsend took him in a car to Dr. Marshall's office where he was treated; that he stayed in bed about three months and then he went to Barnes Hospital in St. Louis and stayed there five days while he was being treated.

The testimony given by Dr. A. H. Marshall, who first treated him, was that he had some skinned places on his finger, reddish mark across his abdomen and an abrasion on one of his knees and a little bruised place on his shoulder and that one of his fingers was a little roughed up; that he made a thorough examination at the time and did not regard plaintiff's injuries as serious; that at the time of the accident he had chronic gastritis, due from the booze he had been drinking, and that he had tuberculosis; that that was what he treated him for; that he advised him to go to bed and stay there until his fever was all gone and he would probably get well; that he gave him tonics and builders; that there was no need for him to go to bed on account of the accident; that he later advised him to go to St. Louis and be X-rayed because he had a collapsed lung, which was practically a dead lung; that this condition was not from any injury.

No witness corroborated plaintiff as to one of his fingers having been torn off.

It also appeared from the testimony that plaintiff had been out of work for some months before the accident and that he had done very little work during the spring and summer except some gardening and trimming of trees and making a few minor repairs such as tacking on screening on the house in which he lived. Prior thereto he had done part-time work for a construction company and later put in truck patches, trained dogs, hunted coons, and, as he stated, did anything he "could get to do to make a living."

It was also shown in evidence, in fact, admitted by plaintiff, that he had been afflicted with gonorrhea, which was contracted some time in 1929. It also appeared that in July prior to the accident that plaintiff sought one of the associate judges of the county court of Mississippi county and told him that his health had gone bad on him and he had not been able to work and had no funds and had been having a doctor and was not able to pay him any more and asked the county to furnish him aid and that he had had tuberculosis for some time and was not able to support himself and asked to be sent to Dr. Vernon, the county physician for examination and treatment.

Defendant complains of the action of the trial court in permitting plaintiff's counsel to interrogate defendant as to his wealth. Plaintiff called defendant to the stand during the making out of his case in chief and subjected him to a detailed examination as to the extent of his property holdings, which proved to be quite extensive, and also developed the fact that defendant was a seventy-three year old bachelor, consequently, having no prospective heirs except collateral kindred. Objections were made to this testimony and overruled by the court, plaintiff's counsel contending that the testimony was proper on the question of punitive damages. The trial court, before the case was closed, evidently reached the conclusion that the admission of this testimony was improper and prejudicial to defendant, and directed the jury to disregard it, by instruction, evidently basing the change in the ruling on the ground that the petition did not contain any charge of malice on the part of defendant or of intentionally, wantonly, or willfully running his car so as to strike and injure plaintiff, and that the facts in respect to the collision, as shown by the testimony, did not justify the assessment of punitive damages, commendably did the best it could to repair the damage done to defendant...