Sharp v. National Biscuit Co.

• Decision Date: 10 February 1904
• Citation: 179 Mo. 553,78 S.W. 787
• Parties: SHARP et ux. v. NATIONAL BISCUIT CO.
• Court: Missouri Supreme Court

78 S.W. 787

179 Mo. 553

SHARP et ux. v. NATIONAL BISCUIT CO.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

APPEAL—CONFLICTING EVIDENCE—REVIEW— NEGLIGENCE—DEATH OF MINOR—DAMAGES— STATUTES—INSTRUCTIONS — CONSTITUTION— JURIES—SELF-EXECUTING PROVISIONS.

1. A verdict on conflicting testimony will not be disturbed on appeal.

2. Rev. St. 1899, § 2866, provides that, in an action for the death of a minor, the jury may give such damages as they may deem fair and just to the surviving parties who may be entitled to sue. In an action by parents for the death of a child, the court instructed that the measure of damages was what the child would

have earned until he became 21, minus the cost of his support, clothes, and maintenance. Held, that inasmuch as, under the statute, the parents were entitled to damages for the loss of the comfort, society, and love of the child, which they were not given by the instruction, it was more favorable to defendant than it was entitled to.

3. Acts 1899, p. 382, amending Const. art. 2, § 28, provides that a jury in courts not of record may consist of less than 12 men, as may be prescribed by law; that a two-thirds majority of such number prescribed by law may render a verdict; that, in the trial by jury of civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that a grand jury shall consist of 12 men, 9 of whom may find an indictment. Held, that the provision was self-executing, in so far as it applied to grand juries and juries in courts of record in civil cases, but not self-executing as applicable to juries in courts not of record.

Appeal from Circuit Court, Jackson County; Edw. P. Gates, Judge.

Action by Elijah P. Sharp and wife against the National Biscuit Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Harkless, O'Grady & Crysler, for appellant. Latshaw & Latshaw and S. S. Gunlack, for respondents.

MARSHALL, J.

This is an action under the statute for damages caused to the plaintiffs by the death of their infant son, George Calvin Sharp, five years of age, by being run over by one of defendant's wagons on July 18, 1899, on Sixth street, between McGee and Oak streets, in Kansas City. The plaintiffs recovered a judgment for $1,500, and the defendant appealed.

The negligence charged in the petition is that the driver of the wagon compelled the child to jump from the wagon, and in consequence he was run over and killed. The answer is a general denial, with special pleas of contributory negligence of the child, and of the parents, the plaintiffs, in allowing the child to be on the street, and of trespass by the child upon the defendant's wagon. The reply is a general denial.

1. The accident occurred on July 18, 1899, on Sixth street, near Oak street, and nearly in front of the stores of High and Lutz. The wagon was a heavy bread wagon. The body of the wagon was raised about three feet above the ground, and had doors on each side, with steps extending toward the ground. The driver's seat was near the front, and had a hood over it, with glass windows on each side. The driver was delivering bread, and stopped in front of the stores aforesaid. Sixth street runs east and west, and he stopped his wagon on the south side of the street, with the team fronting west. He was in the stores quite awhile, and while there a number of boys were climbing on the wagon. Some neighbors ordered the boys to get off, which they did, but afterwards climbed on it again. When the driver came out of one of the stores to go into the other, he saw the boys on the wagon, and he said to one of them—Freddie Lutz—"Get off, or I will kick you off." The driver knew that the boys were in the habit of climbing on the wagon, and the testimony for the defendant is that he carried a whip to drive the bigger boys off of the wagon, but did not use it on the small boys. When the driver came out of the store, he got on the wagon and drove off. When he had gotten about ten steps, the deceased fell off of the wagon, and was run over. The evidence is conflicting as to whether the deceased was on the step on the north side of the wagon at the time the driver got on the wagon, or whether he got on the step after the driver got on the wagon. It is also conflicting as to whether the driver knew that the deceased was on the step or not. The evidence on behalf of the plaintiff is that the child was on the step, and that the driver knew it, and said to him, "Get off, or I will knock you off," and that the child answered, "Wait a minute, and I will," but that, instead of waiting, the driver immediately started the team, and cut back once or twice with the whip at the child, and that the child dodged the blow and fell. The evidence for the defendant is that the child got on the step after the driver got on the wagon, and that the driver did not know he was there, and, by reason of the construction of the wagon, and the hood over the driver's seat, he could not see the child, and that he did not say anything to the child, and that he did not strike at him. The defendant's evidence is conflicting as to whether he had a whip that day. By consent of the parties, the wagon was brought to the courthouse, and the jury permitted to examine it, and to test whether the driver could see the child on the step or not. There was likewise a sharp conflict in the evidence as to whether the parents permitted the child to play in the street, and as to his proclivity to climb upon wagons. Nine witnesses testified for the plaintiffs, and thirteen for the defendant, exclusive of character witnesses. Most of them were eyewitnesses to the accident. Their testimony is as conflicting as it is possible for testimony to be. To draw it mildly, somebody was mistaken. The jury believed the plaintiffs' witnesses. Under such circumstances, their finding of fact is conclusive on this court. James v. Insurance Co., 148 Mo. 1, 49 S. W. 978.

2. The defendant contends that the plaintiffs' instruction as to the measure of damages is erroneous, and bases the contention upon Hennessy v. Bavarian Brewing Ass'n, 145 Mo. 104, 46 S. W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554, which defendant says changed the law in this state. The instruction told the jury that the measure of the plaintiffs' damages was what their son would have earned until he became 21 years old, minus the cost of his support, maintenance, and clothes. It is claimed that the logic of Hennessy v. Bavarian Brewing Association supra, is that this is not the proper measure of damages, but that the true rule is stated in Nagel v. Railroad, 75 Mo., loc. cit. 665, 42 Am. Rep. 418—such amount as the jury deem fair and just. The language of the statute (section 2866, Rev. St. 1899) which transmits the right to the parents in such cases is that "the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default." The case of Hennessy v. Brewing Ass'n, supra, did not involve the question of the measure of damages at all. The only question involved or decided in that case was, who is entitled to maintain an action under the statute for the death of a...