Sollenberger v. Kansas City Public Service Co.

• Citation: 202 S.W.2d 25,356 Mo. 454
• Decision Date: 21 April 1947
• Docket Number: 40061
• Parties: Mildred Sollenberger v. Kansas City Public Service Company, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 25

356 Mo. 454

Mildred Sollenberger v. Kansas City Public Service Company, Appellant

No. 40061

Supreme Court of Missouri

April 21, 1947

Rehearing Denied May 12, 1947.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

Charles L. Carr, R. Carter Tucker; John Murphy, William H Wilson and Tucker, Murphy & Wilson for appellant.

(1) The court erred in refusing to sustain defendant's motions for directed verdicts in the nature of demurrers, because plaintiff's action was brought and based upon Section 3652, R.S. Mo. 1939, which this defendant contended and still contends was and is null, void, invalid and of no force or effect because said Section 3652 was and is unconstitutional first, because it violates the provisions of Section 13, Article II, of the Constitution of the State of Missouri, 1875, and particularly that part providing: "When any person shall be killed by casualty there shall be no forfeiture by reason thereof." So that said section of the statute was at all times invalid because it provides for a "forfeiture" in violation of the provisions of the Constitution of 1875 and, secondly, that said Section 3652 aforesaid was and is null, void, invalid and of no force or effect because said Section 3652, R.S. 1939, was and is a violation of and prohibited by the similar Section 30, Article I of the Constitution of the State of Missouri which became effective March 30, 1945. Grier v. Kansas City, Clay County & St. Joseph Ry. Co., 286 Mo. 523, 228 S.W. 454; State ex rel. Williams v. Buzard, 190 S.W.2d 908; State ex rel. Thompson v. Harris, 195 S.W.2d 645; Helvering, Commisioner, v. Owens, 95 F.2d 318; Hines v. Hooks, 338 Mo. 114, 89 S.W.2d 52; Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. (2) The court further erred in refusing to sustain defendant's motion for a directed verdict at the close of plaintiff's case, to which action of the court in refusing to sustain said motion defendant at the time duly objected and excepted and still objects and excepts because under plaintiff's own evidence no submissible case was made and there was no question of fact to be passed on by the jury; no humanitarian case was made. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. Ziegelmeier v. East St. Louis & Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Jordan v. St. Joseph Ry., L.H. & P. Co., 38 S.W.2d 1042; Hutchison v. Thompson, 167 S.W.2d l.c. 103; Mahl v. Terrill, 111 S.W.2d 162; Armstrong v. Croy, 176 S.W.2d 852. (3) The court erred by refusing to sustain defendant's motion for a directed verdict at the close of the entire case, to which action of the court in refusing to sustain said motion defendant at the time duly objected and excepted and still objects and excepts because under the entire evidence no submissible case was made by the plaintiff and there was no question of fact to be passed on by the jury and no humanitarian case was made. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Ziegelmeier v. East St. Louis & Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Jordan v. St. Joseph Ry., L.H. & P. Co., 38 S.W.2d 1042; Mahl v. Terrill, 111 S.W.2d 162; Hutchison v. Thompson, 167 S.W.2d l.c. 103. (4) Instruction 1 erroneously misdirected the jury and erroneously authorized it to return a verdict against defendant under the humanitarian rule if it found defendant's operator could "have sufficiently changed the course of said bus to the right and thereby have avoided said collision" (said instruction being in the disjunctive) because there was no competent evidence upon which it could be based and because the instruction gave the jury a roving commission, there being no evidence and no facts to guide the jury. Putnam v. Unionville Granite Works, 122 S.W.2d 389; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (5) The court further erred in giving Instruction 1 because said instruction erroneously submitted the case to the jury under the humanitarian rule though plaintiff failed to make a case for the jury on such evidence and such theory was not supported by the evidence. Putnam v. Unionville Granite Works, 122 S.W.2d 389; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (6) The court erred by refusing to grant defendant's motion for a mistrial because of highly prejudicial arguments made by counsel in his closing argument. Walsh v. Terminal Ry. Assn. of St. Louis, 355 Mo. 458, 182 S.W.2d 607; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Brown v. Walter, 62 F.2d 798; Jackman v. St. Louis & H. Ry. Co., 206 S.W. 244; Deibler v. Wright, 6 P.2d 344; Dodd v. Missouri-Kansas-Texas Railroad Co., 353 Mo. 799, 184 S.W.2d 454; Carpenter v. Kurn, 345 Mo. 877, 136 S.W.2d 997; Better Roofing Materials Co. v. Sztukouski, 183 S.W.2d 400; Monroe v. Chicago & A.R. Co., 297 Mo. 633, 349 S.W. 644. (7) The court erred in permitting plaintiff, over the objection of the defendant to interrogate police officer Evans and other police officers regarding Exhibit 13, a police vehicular accident report and erred in permitting same to be paraded before the jury over defendant's objection because said police vehicular report was not competent or proper evidence and was not admissible in the case and said gestures were made solely for the purpose of creating prejudice in the minds of the jury against the defendant and placed the defendant in a position where it was forced to make numerous objections to said incompetent evidence in the presence of the jury and thereby to sow the seed of suspicion and the thought that defendant, through some legal technicality, was improperly keeping and concealing damaging evidence from the jury. White v. Hasburgh, 124 S.W.2d 560; Walsh v. Terminal Ry. Assn. of St. Louis, 353 Mo. 458, 182 S.W.2d 607; Rogers v. Kansas City Ry. Co., 204 S.W. 595; Gilday v. Smith Bros., Inc., 32 S.W.2d 118; Illinois Power & Light Corp. v. Hurley, 49 F.2d 681; Better Roofing Materials Co. v. Sztukouski, 183 S.W.2d 400.

A. H. Osborne, Duke W. Ponick, E. E. Thompson, and J. H. Greene, Jr., for respondent.

(1) The trial court did not err in refusing to sustain defendant's motions for directed verdicts at the close of plaintiff's case and at the close of the whole case because Sec. 3652, R.S. 1939, is constitutional and it does not violate Sec. 13, Art. II, of the Constitution of the State of Missouri, 1875, nor Sec. 30, Art. I, of the Constitution of the State of Missouri, which became effective March 30, 1945. Robinson v. Kansas City Pub. Serv Co., 345 Mo. 764, 137 S.W.2d 548; Webb v. Baldwin, 165 Mo.App. 240, 147 S.W. 849; Sloan v. Polar Wave Ice & Fuel Co., 323 Mo. 363, 19 S.W.2d 476; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 764; Wright v. Quattrochi, 330 Mo. 173, 49 S.W.2d 3; Zeis v. Brewing Assn., 104 S.W. 102, 205 Mo. 638; Gill v. Fugate, 117 Ky. 257, 78 S.W. 188; Ennis v. Fourth St. Bldg. Assn., of Clinton, 102 Iowa 520, 71 N.W. 426; Anthony v. Karbach, 64 Neb. 509, 90 N.W. 243; Banker's Mut. Casualty Co. v. First Natl. Bank, 131 Iowa 456, 108 N.W. 1046; Bouvier's Law Dictionary -- Rawle's 3rd Ed.; Webster's New International Dictionary. (2) Plaintiff made a submissible case under the humanitarian doctrine. Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167; State ex rel. Kansas City Pub. Serv. Co., v. Bland, 191 S.W.2d 660; Cameron v. Howerton, 174 S.W.2d 206; Teague v. Plaza Express Co., 190 S.W.2d 254; Bowman v. Standard Oil Co. of Indiana, 350 Mo. 958, 169 S.W.2d 384; Hutchison v. Thompson, 175 S.W.2d 903; Bootee v. Kansas City Pub. Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Bresler v. Kansas City Pub. Serv. Co., 186 S.W.2d 524; Perkins v. Terminal R. Assn., of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472; Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 653. (3) Plaintiff's given Instruction 1 was proper because there was competent evidence that defendant's operator could "have sufficiently changed the course of said bus to the right and thereby have avoided said collision." Marczuk v. St. Louis Pub. Serv. Co., 196 S.W.2d 1000; Rule 3.21 of the Supreme Court of Missouri; Allen v. Kessler, 64 S.W.2d 630; Heitz v. Voss Truck Lines, 175 S.W.2d 583; Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Bootee v. Kansas City Pub. Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; Lowry v. Mohn, 195 S.W.2d 652. (4) The court did not err in refusing to grant defendant's motion for a mistrial because of statements made by plaintiff's counsel in his closing argument, to-wit. Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Evans v. Trenton, 112 Mo. 390, 20 S.W. 614; Paul v. Dunham, 214 S.W. 263; Bishop v. Brittain Inv. Co., 229 Mo. 699, 129 S.W. 668; Gann v. Chicago, R.I. & P. Ry. Co., 349 Mo 214, 6 S.W.2d 39; (5) The court did not err in refusing to declare a mistrial upon request of defendant by reason of statements made by plaintiff's counsel in his closing argument which are not prejudicial nor improper. Bain v. M.-K.-T.R. Co., 141 S.W.2d 577; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54. (6) The court did not err in refusing to declare a mistrial by reason of statements of plaintiff's counsel because such statements were proper and not prejudicial. Cases under Point IV; Lefever v. Stephenson, 193 S.W. 840; Torreyson v. United Rys. Co., of St. Louis, 164 Mo.App. 366, 145 S.W. 106; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Leingang v. Geller, Ward & Hassner Hardware Co., 335 Mo. 549, 73 S.W.2d 256; Gary v. Averill, 12 S.W.2d...