State ex rel. Banks v. Hostetter

• Citation: 125 S.W.2d 835,344 Mo. 155
• Decision Date: 07 March 1939
• Docket Number: 35444
• Parties: State of Missouri at the relation of J. W. Banks, Relator, v. J. D. Hostetter et al., JJ
• Court: United States State Supreme Court of Missouri

125 S.W.2d 835

344 Mo. 155

State of Missouri at the relation of J. W. Banks, Relator, v. J. D. Hostetter et al., JJ

No. 35444

Supreme Court of Missouri

March 7, 1939

Record quashed.

Strubinger Tudor & Tombrink and Russell Garnett for relator.

(1) The opinion of the St. Louis Court of Appeals in holding that Instruction 12 on measure of damages under count one of petition which permitted plaintiff to recover loss of earnings in greater sum than alleged in petition, although erroneous, did not materially affect merits of case, is in direct conflict with prior decisions of this court in following cases: Rosenzweig v. Wells, 273 S.W. 1078 308 Mo. 640; Radtke v. St. Louis Basket & Box Co., 129 S. W., 513, 229 Mo. 19; Findley v. United Rys Co., 141 S.W. 868, 238 Mo. 15; Smoot v. K. C., 194 Mo. 522. (2) Said opinion in holding that the humanitarian instruction submitting failure to swerve the truck with safety to said truck and occupants, without further submitting that truck could have been swerved with safety to others on highway, was not prejudicially erroneous in view of positive testimony of witness Mathews that an automobile coming towards truck was near center line and driver swerved as far as he could to avoid this approaching car, is in direct conflict with controlling decisions of this court in following cases: Spoenemann v. Uhri, 332 Mo. 830, 60 S.W.2d 13; Borgstede v. Waldbauer, 88 S.W.2d 377, 337 Mo. 1205. (3) Said opinion in holding that the said humanitarian instruction submitting failure to slacken speed of truck, although such submission could have been omitted, is not erroneous and did not materially affect merits of case, is in direct conflict with controlling decisions of this court in the following cases: Sevedge v. K. C., St. L. & C. Ry. Co., 331 Mo. 320, 53 S.W.2d 287; Driscoll v. Wells, 29 S.W.2d 51; Burow v. St. L. Pub. Serv. Co., 100 S.W.2d 269. (4) Said opinion in holding Instruction 13 on measure of damages not erroneous, where instruction submits mitigating or aggravating circumstances attending negligence of defendant and where evidence did not disclose such circumstances and where case is submitted on humanitarian instruction, is in direct conflict with controlling decisions of this court in the following cases: Grimes v. Red Line Service, 337 Mo. 748, 85 S.W.2d 769; Parsons v. Mo. Pac. Ry., 94 Mo. 299; State ex rel. v. Ellison, 270 Mo. 657, 195 S.W. 725; State ex rel. Dunham v. Ellison, 279 Mo. 660, 213 S.W. 463.

J. Edward Gragg, Everett Hullverson and Robert L. Aronson for respondents.

(1) On certiorari, the Supreme Court is not concerned with the merit and soundness of a decision of a Court of Appeals, but only with the question of conflict between such decision and controlling decisions of the Supreme Court. State ex rel. Sirkin & Needles Mov. Co. v. Hostetter, 101 S.W.2d 50; State ex rel. Hauck Bakery Co. v. Haid, 333 Mo. 76, 62 S.W.2d 400; State ex rel. St. Charles v. Haid, 325 Mo. 118, 28 S.W.2d 102; State ex rel. Weisheyer v. Haid, 26 S.W.2d 939; State ex rel. Continental Ins. Co. v. Reynolds, 290 Mo. 362, 235 S.W. 88; State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43. (2) When evidence is admitted without objection, an appellate court must treat the petition as having been amended to conform to the evidence. Rock v. Keller, 312 Mo. 458, 278 S.W. 759; Solomon v. Moberly L. & P. Co., 303 Mo. 622, 262 S.W. 367; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Whitehead v. Koberman, 299 S.W. 121; Koonse v. Standard Steel Works Co., 221 Mo.App. 1231, 300 S.W. 531; Dement v. McNail, 4 S.W.2d 831. (3) Where an instruction did not affect the case prejudicially and the verdict was not claimed to be excessive, it affords no ground for reversal. Sec. 1062, R. S. 1929; Rosenzweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Rath v. Knight, 55 S.W.2d 685; King v. St. Louis, 250 Mo. 501, 157 S.W. 498; Wolfson v. Cohen, 55 S.W.2d 677; Williams v. Hyman-Michaels Co., 277 S.W. 595; Higgins v. Terminal Road Assn., 97 S.W.2d 897; Pogue v. Rosegrant, 98 S.W.2d 533; Lang v. St. Louis, 262 Mo. 454, 171 S.W. 347; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400, 92 S.W. 614. (4) An instruction, under the humanitarian doctrine, requiring that defendant's ability and means to avoid a collision be existent with safety to himself, his truck and his passenger without making reference to safety of others is correct under the facts disclosed herein. Brown v. Callicotte, 73 S.W.2d 190; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Vandenberg v. Snider, 83 S.W.2d 202. (5) Since the reference in the instructions to slackening of speed did not mislead the jury and the appellate court could not believe that any probable error therein had materially affected the issues, it was not ground for reversal. Sec. 1062, R. S. 1929; Myerson v. People's Motorbus Co., 297 S.W. 455; Trust Co. v. Surety Co., 285 Mo. 621, 226 S.W. 935; Ehrlich v. Mittelberg, 299 Mo. 303, 252 S.W. 671; Foster v. Rys. Co., 183 Mo.App. 602, 167 S.W. 643; Schultz v. Schultz, 293 S.W. 109. (6) Under the present record, Instruction 13 not having been set forth in respondent's opinion, is not before the court for consideration. State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. St. Louis Pub. Serv. Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141. (7) The instruction submitting aggravating circumstances in the court for wrongful death was proper under the pleadings and evidence herein. Sec. 3264, R. S. 1929; Treadway v. United Rys. Co., 300 Mo. 156, 282 S.W. 441; Grier v. Ry. Co., 286 Mo. 523, 228 S.W. 454; Bloomcamp v. Mo. Pac. Ry. Co., 236 S.W. 338; Honea v. Ry. Co., 245 Mo. 621, 151 S.W. 119; Steger v. Meeham, 63 S.W.2d 109; Williams v. Excavating & Foundation Co., 93 S.W.2d 123; Stoher v. Ry. Co., 91 Mo. 519, 4 S.W. 389; Boyd v. Ry. Co., 236 Mo. 54, 139 S.W. 561; Barth v. Ry. Co., 142 Mo. 535, 44 S.W. 778.

Douglas, J. All concur, except Clark, J., not sitting.

OPINION

DOUGLAS

This is an original proceeding in certiorari to determine whether there is conflict with our decisions in the ruling of the St. Louis Court of Appeals in the case of James F. Day, plaintiff, v. J. W. Banks et al., defendants reported in 102 S.W.2d 946.

The facts out of which that action arose as found in the opinion show that the plaintiff James F. Day with his late wife Lydia Day, their son Silver Day and their son's wife Rosella Day, were taking a ride together in a Hupmobile automobile. In the night they were driving along U.S. Highway No. 66, a paved four-lane highway, in St. Louis County when motor trouble developed. The engine stalled and they stopped on the highway near Sappington Road, the automobile being parked partially on the pavement and partially on the shoulder. The son, Silver Day, got out of the automobile, looked at the engine, could not discover the cause of the trouble so walked back toward a filling station about one-half mile east. When he reached a point about one hundred yards to the rear of the automobile he stopped and looked back and saw that the tail-light was lighted. The plaintiff also got out of the automobile with his son and assisted him in looking for the trouble with the engine, but after three or four minutes reentered the automobile where he remained chatting with his wife and daughter-in-law who were seated in the rear seat. After two or three minutes defendant's truck collided with the rear of the parked automobile. Plaintiff did not see the truck before the accident and did not know the cause of the accident until after the collision when he and his wife got out of the automobile and saw the truck in contact with its rear end.

The driver of the truck testified that he was driving his threeton loaded truck westwardly on No. 66 at a speed of twenty-five to thirty miles an hour. As he approached the scene of the collision, automobiles were approaching him with blazing headlights which momentarily blinded him and that he did not see the parked automobile in which plaintiff and the others were sitting until he was twenty-five to thirty feet from it. He said no tail-light was burning on it. He applied his foot and emergency brakes and swerved his truck to the left as far as he was able, but the right end of his bumper struck the left rear center of the automobile. He said that under conditions then existing at the speed he was traveling he could have stopped within forty to forty-five feet.

Plaintiff brought suit in the Circuit Court of St. Louis County on two counts, the first for injuries to himself and the second for damages resulting from the death of his wife. The jury returned a verdict in his favor for $ 1500 on the first count and for $ 5000 on the second count. The opinion under consideration affirmed the judgment and defendant Banks has applied for certiorari.

The trial court on each count submitted the case to the jury solely under the humanitarian doctrine. Relator complains of these instructions.

Respondents first argue that as the instructions complained of are not fully set out in the opinion they are not before this court. However, they were referred to and made in part a basis of the ruling so that we may consider them as if fully set out in the opinion. Such was the holding in State ex rel. Talbott v. Shain et al., 334 Mo. 617, 66 S.W.2d 826, citing many cases and finally putting to rest a contrary contention.

Instruction No. 2 under the first count, and Instruction No. 3 under the second count each told the jury that if defendant could have stopped the said truck or slackened the speed thereof or swerved the same and that defendant, his agent and servant could thus and thereby have prevented the truck from striking plaintiff and the automobile in...