State ex rel. Grisham v. Allen.

• Decision Date: 21 February 1939
• Docket Number: No. 35136.,35136.
• Citation: 124 S.W.2d 1080
• Parties: STATE OF MISSOURI at the relation of CARLISLE S. GRISHAM and W.D. BELL, Copartners, Composing the Firm of SOONER DISTRIBUTING COMPANY, Relators, v. PERRY T. ALLEN, WALTER E. BAILEY and ROBERT J. SMITH, Judges of The Springfield Court of Appeals.
• Court: Missouri Supreme Court

124 S.W.2d 1080

STATE OF MISSOURI at the relation of CARLISLE S. GRISHAM and W.D. BELL, Copartners, Composing the Firm of SOONER DISTRIBUTING COMPANY, Relators, v. PERRY T. ALLEN, WALTER E. BAILEY and ROBERT J. SMITH, Judges of The Springfield Court of Appeals.

No. 35136.

Supreme Court of Missouri.

Division Two, February 21, 1939.

Certiorari.

THAT PORTION OF THE OPINION OF THE SPRINGFIELD COURT OF APPEALS IN CONFLICT WITH THE RULINGS MENTIONED IS QUASHED.

Mann, Mann & Miller for relators.

(1) Respondents, in their opinion, refer to the pleadings and the negligence and other matters therein alleged and also directly refer to the instructions and pass upon the issues raised in the instructions. Where the opinion refers to the pleadings and the instructions, both the pleadings and the instructions are considered to be within the opinion as fully as though they had been written into it in full. State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. Western Automobile Ins. Co. v. Trimble, 249 S.W. 903, 297 Mo. 659; State ex rel. Seibel v. Trimble, 299 Mo. 164, 253 S.W. 218; State ex rel. Hancock Ins. Co. v. Allen, 267 S.W. 834, 306 Mo. 197. (2d) Plaintiff's negligence, even if it be conceded, constitutes and is no defense for the defendant in measuring the defendant's liability under the last chance or humanitarian doctrine. This salutary rule based on humane precepts is one that has been jealously guarded by the courts of this State. It has been said to be a doctrine of negligence peculiar unto itself and is distinguished from the general doctrine of negligence, so-called primary negligence. It is held that where plaintiff's case is submitted solely upon the last chance doctrine that it is then error to even instruct in even the most precautionary manner on any alleged contributory negligence on the part of the plaintiff. Where, by reason of the fact that plaintiff's case is submitted upon both alleged primary negligence and under the last chance doctrine it does become proper in defense of the alleged liability of the defendant, under acts of primary negligence, to submit to the jury an act or acts of the plaintiff alleged to constitute contributory negligence, then such an instruction must clearly and definitely set out that it has no application to plaintiff's right to recover under the last chance doctrine and be so worded that the layman on the jury will not be confused as to such issue. Schulz v. Smercina, 318 Mo. 486, 1 S.W. (2d) 113; Herrell v. Frisco, 332 Mo. 551, 18 S.W. (2d) 486; Bussey v. Don, 259 S.W. 793; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 146; Abramowitz v. United Rys. Co., 214 S.W. 119; Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 59 S.W. (2d) 633. (3) The evidence can be no broader than the pleadings and special damage must be specially pleaded, or else evidence thereof is not admissible. Evidence is only admissible as to those injuries specially pleaded, or which naturally and necessarily result from the character of injuries so generally set forth. Hall v. Coal & Coke Co., 260 Mo. 371, 168 S.W. 927; Connor v. Kansas City Rys. Co., 250 S.W. 574, 298 Mo. 18; Boggs v. Gasser, 55 S.W. (2d) 725; Chambers v. Kennedy, 274 S.W. 731; Grott v. Johnson, Stephens & Shinkle Shoe Co., 2 S.W. (2d) 788. Cancer or cancerous condition, or one likely to become so, is not the natural and is not the necessary result of being "violently thrown, cut, bruised, shocked, wounded, contused, strained and otherwise injured," the above being the injuries it is alleged Mrs. Freewald sustained; nor can it be said to be by the farthest stretch of the imagination. Respondents' holding that testimony as to such special damage was competent in this case under the allegations made as to Mrs. Freewald's injuries, is squarely in conflict with the above decided opinions of this court, is bad law and should not be allowed to stand.

W.I. Mayfield and Ruark & Ruark for respondents.

(1) The only matter to be determined on certiorari is whether or not the last controlling decision of this court has been contravened; and a conflict between the decision of the Court of Appeals must appear and be shown on the face of the opinion. State ex rel. Amer. School of Osteopathy v. Daues, 18 S.W. (2d) 487, 332 Mo. 991; State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. Bradley v. Trimble, 289 S.W. 922, 316 Mo. 97. The Supreme Court is not concerned with the correctness of the appellate court's opinion unless there is a conflict apparent of record. State ex rel. Fitchner v. Haid, 22 S.W. (2d) 1045, 324 Mo. 130. The failure of an appellate court to pass upon some question presented by a litigant furnishes no ground for writ of certiorari; for such failure does not furnish a conflict of the opinions. State ex rel. Silverforb v. Smith, 43 S.W. (2d) 1054; State ex rel. Olsen v. Allen, 253 S.W. 1012. (2) It is well settled that all instructions must be read and construed together; and when the series of instructions thus taken contain a complete exposition of the law and cover the issues, there is no prejudicial error. Larey v. Ry. Co., 64 S.W. (2d) 684; McIntyre v. Ry. Co., 286 Mo. 260. Matters of defense need not be negatived by the opposite party where the party pleading the defense submits and gets an instruction on the matters of defense so pleaded. Heigold v. United Rys. Co., 308 Mo. 157, 271 S.W. 773; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W. (2d) 286; Smith v. Ohio Millers Mut. Ins. Co., 330 Mo. 236, 49 S.W. (2d) 42; State ex rel. Jenkins v. Trimble, 291 Mo. 236; State ex rel. v. Cox, 270 S.W. 114, 307 Mo. 194. (3) Challenged Instruction 7 is invulnerable to attack from any angle. It directed a verdict for defendant upon a finding by the jury that the collision was caused by the truck being upon the wrong side of the road and also — "That the defendant at the time was in the exercise of the highest degree of care upon his part." We find that similar instructions have met the court's approval: Stanton v. Jones, 59 S.W. (2d) 648; Geisendorf v. Brashear Truck Co., 54 S.W. (2d) 73; Wright v. Mining Co., 163 Mo. App. 536; Kaiser v. Jaccard, 52 S.W. (2d) 20; Jackson v. Anderson, 273 S.W. 429. (4) Sometimes a litigant is held to the theory upon which he tries his case in the court below; and that he cannot complain of error which he has invited; nor of an error in his opponent's instructions where he has himself been guilty of like error in his own. Carle v. Akin, 87 S.W. (2d) 406; Bennett v. Hader, 87 S.W. (2d) 413, 337 Mo. 977. (a) Relators present their second point to the court as though the trial court had permitted the witness to state, and that the witness did state, that defendant's wife had or would have a cancer and that such was sent to the jury as an item of damages. A mere reading of the respondents' opinion will disclose that the respondents held that the witness said he did not know whether or not such would be the result of her injuries. This court on certiorari takes the fact as stated in the opinion of the lower court. State ex rel. Ry. Co. v. Haid, 37 S.W. (2d) 437; State ex rel. Ward v. Trimble, 39 S.W. (2d) 372.

BOHLING, C.

Certiorari to review rulings of the Springfield Court of Appeals in Grisham and Bell v. Freewald, 230 Mo. App. 1203, 95 S.W. (2d) 349. The case reaches the writer upon reassignment.

The case arises out of a collision between a truck owned by Grisham and Bell, relators herein and plaintiffs below, and a Ford coupe owned by V.W. Freewald. Plaintiffs instituted suit for damages to their truck, predicating a recovery under the humanitarian rule as well as primary negligence on the part of defendant. Defendant's answer was a general denial and a counterclaim, predicating a recovery under the humanitarian rule and primary negligence on the part of plaintiffs' employee. Plaintiffs' answer to defendant's counterclaim was a general denial, coupled with pleas of contributory negligence. Plaintiffs appealed from a judgment of $1500 for defendant.

Defendant submitted his case on two instructions — an instruction on the measure of damages and an instruction reading (230 Mo. App. l.c. 1212, 95 S.W. (2d) l.c. 355):

"The jury are instructed that if they find and believe from the evidence that the defendant and defendant's wife were injured by reason of his automobile coming into collision with a truck, then being run and operated by the servant and employee of the plaintiffs, and that at such time the defendant was driving his automobile upon or to the right of the center of the highway upon which he was traveling, if shown, and that the plaintiffs' truck was then being negligently driven upon the left hand side of the center of the highway, considering the direction it was traveling, if shown; and that as a direct result of plaintiffs' truck being so driven, if shown, the defendant's car and the plaintiffs' truck came into collision, and that the defendant was at the time in the exercise of the highest degree of care upon his part, then the jury will find the issues for the defendant."

Respondents approved the instruction over relators' assignment it completely ignored the humanitarian doctrine.

[1] Plaintiffs' petition sought a recovery of $400; defendant's counterclaim a recovery of $5000. Each litigant, in turn, had the offensive and defensive. Reference to respondent's opinion (l.c. 1213 and 355, respectively) discloses that defendant's other instruction read, in so far as here material: "If the jury find the issues for the defendant on his counterclaim, they will allow him such damages ..." If the questioned instruction is to be construed as authorizing a verdict for defendant on defendant's pleaded negligence of plaintiffs' servant under the humanitarian rule, an issue presented by defendant's counterclaim, it is obviously defective in that, for instance, it required no finding that plaintiffs' servant saw or ought to have seen defendant in a...