State ex rel. Himmelsbach v. Becker

• Citation: 85 S.W.2d 420,337 Mo. 341
• Parties: State of Missouri at the Relation of Arthur Himmelsbach, Relator, v. William Dee Becker, Edward J. McCullen and J. D. Hostetter
• Decision Date: 10 July 1935
• Court: United States State Supreme Court of Missouri

85 S.W.2d 420

337 Mo. 341

State of Missouri at the Relation of Arthur Himmelsbach, Relator, v. William Dee Becker, Edward J. McCullen and J. D. Hostetter

Supreme Court of Missouri

July 10, 1935

Rehearing Denied July 10, 1935.

Writ quashed.

Leahy Saunders & Walther, Harold F. Hecker and Lyon Anderson for relator.

(1) In approving Instruction 3, the respondents' opinion conflicts with previous controlling opinions of this court. Banks v. Morris & Co., 302 Mo. 254; State ex rel. Fleming v. Bland, 15 S.W.2d 798; Freeman v Berberich, 60 S.W.2d 393; Sullivan v. Ry. Co., 117 Mo. 214; State ex rel. v. Cox, 46 S.W.2d 849; Henson v. Railroad Co., 301 Mo. 415; Shumate v Wells, 9 S.W.2d 632; Haley v. Railroad Co., 197 Mo. 15; McGee v. Railroad Co., 214 Mo. 530; Alexander v. Ry. Co., 327 Mo. 1012. (2) The holding of respondents that as a matter of law the negligence of the driver of the car in which plaintiff was riding could not be imputed to plaintiff is contrary to previous controlling decisions of this court. (a) Where there is evidence of joint mission, the issue is for the jury. Pence v. Kansas City Laundry Co., 59 S.W.2d 633. (b) The jury alone may finally and conclusively determine whether or not a fact which may be inferred from a proved fact should be so found. State v. Shelby, 64 S.W.2d 273; O'Donnell v. Wells, 21 S.W.2d 762; Moeller v. United Rys. Co., 242 Mo. 729; Powers v. Transit Co., 202 Mo. 267.

Greensfelder & Grand and Forrest Hemker for respondents.

(1) Instruction 3, wherein plaintiff submitted the question of humanitarian negligence, when considered in the light of all the facts in the opinion and the other instructions given by the court, properly declares the law and is in harmony with the pronouncements of this court in the following cases: Hencke v. Railroad Co., 72 S.W.2d 798; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Iman v. Bread Co., 332 Mo. 461, 58 S.W.2d 477; Allen v. Kessler, 64 S.W.2d 630; Larey v. Railroad Co., 64 S.W.2d 681; Montague v. Railroad Co., 305 Mo. 269, 264 S.W. 813; Williams v. St. Louis Pub. Serv. Co., 54 S.W.2d 764; Davis v. Roth, 65 S.W.2d 172; Brown v. Callicotte, 73 S.W.2d 190; Homan v. Railroad Co., 64 S.W.2d 617. (2) Where a plaintiff is riding with her husband, her son and her daughter in the son's automobile and returning from visiting relatives with a third party at the wheel, she is a guest and there is no joint venture so as to impute the negligence of the driver to her. Corn v. Ry. Co., 228 S.W. 78.

OPINION

Tipton, J.

This case comes to the writer on reassignment. It is certiorari to the St. Louis Court of Appeals. Our writ was invoked in a case decided by that court entitled Arminta Parsons v. Arthur Himmelsbach, reported in 68 S.W.2d 841, wherein a judgment of $ 3000, obtained by plaintiff in circuit court was affirmed by the Court of Appeals. The plaintiff's action was one for personal injuries. On December 8, 1932, she was riding in an automobile which was proceeding in a northerly direction on Big Bend Boulevard, near its intersection with Clayton Road, both public thoroughfares in the city of Richmond Heights, Missouri, and the automobile in which she was riding was struck and collided with by an automobile operated by the relator proceeding in an easterly direction on Clayton Road; that by reason of the collision plaintiff received certain injuries. Relator does not claim that the evidence is not sufficient to sustain the verdict, but claims that the opinion of the respondents in approving the action of the trial court in giving certain instructions and in refusing others, contravenes the controlling decision of this court. Other pertinent facts will be stated in the course of this opinion.

(1) I. "On a writ of certiorari to an appellate court, the determination of error, under our decisions, is limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling opinion of this court on the subject, either as to a general principle of law announced, or as to a ruling under a like, analogous, or similar state of facts. The purpose of certiorari is to secure uniformity in opinions and harmony in the law. [State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014.]" [State ex rel. Kroger Grocery & Baking Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478, l. c. 480.]

With this principle in mind, we will proceed to review the alleged conflicts. Relator contends that respondents' opinion in approving Instruction No. 3, conflicts with our previous controlling opinions. The pertinent part of this instruction is as follows:

"That the Chevrolet automobile in which plaintiff was riding was in or approaching a position of imminent peril of being struck by defendant's automobile, if you so find, and that the plaintiff was oblivious to her danger, if any, and that neither the plaintiff nor the driver of the said Chevrolet automobile were able to extricate her from said position of peril, and if you further find from the evidence that thereafter the defendant saw, or by the exercise of the highest degree of care could have seen the plaintiff in or approaching such position of imminent peril, if any, and that defendant could thereafter, by the exercise of the highest degree of care and with the appliances at hand, and with safety to himself and the passengers in his automobile, have sounded a warning, if you so find, or have slackened the speed of said automobile, if you so find, or have stopped said automobile before the said collision, if you so find, and that the said defendant could have thereby avoided the collision, if you so find, but negligently failed to sound any warning, or negligently failed to slacken the speed of said automobile, or negligently failed to stop said automobile, if you so find, before the said collision, if you so find, and as a direct and sole result thereof plaintiff sustained injuries, if any, then your verdict must be for the plaintiff and against the defendant, even though you may find from the evidence that the plaintiff was or was not negligent and that the driver of the Chevrolet automobile was or was not negligent."

On certiorari we are limited to the facts as found in the OPINION of Appeals and to the issues presented to that court. [State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. Locke v. Trimble, 298 S.W. 782.] The issue presented to the respondents in regard to this instruction is that it extends the humanitarian doctrine too far, in that it put the burden on relator to act to avert the collision, even before the plaintiff entered the danger zone. Respondents' opinion held that this instruction was not open to this objection, when read in connection with Instruction No. 4, which is as follows:

"You are further instructed that 'imminent peril,' as used in these instructions, does not mean remote, uncertain, contingent or avoidable danger, but means danger which is immediately impending, that admits of no time for deliberation between its appearance and the impending collision."

We have not been cited to one of our cases where two instructions similar to instructions Nos. 3 and 4 were given. As there is no case where the facts are similar or analogous to the facts of the case at bar, we shall proceed to determine if the general principle of law announced by the respondents conflicts with our decision.

Relator claims that the opinion conflicts with our case of Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. The point we decided in that case was that it was not necessary to plead if the plaintiff was oblivious to his danger. In that case, we did state that: "Under this doctrine 'the position of peril' is one of the basic facts of liability; it might be denominated the chief one." The opinion then proceeds to state a formula of constitutive facts of a cause of action under the humanitarian rule. The opinion also uses this expression: "It (the humanitarian rule) 'proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary case for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.'" (Italics ours.) We find no conflict between that case and opinion of respondents' rulings.

Relator also relies on the case of Shumate v. Wells, 9 S.W.2d 632, l. c. 635. In that case the defendant obtained a verdict and we reversed and remanded the cause because an instruction told the jury that the motorman was not required to make any effort to stop his car until the automobile was driven directly in front of or in close and dangerous proximity to it. We held that "it was the motorman's duty to act as soon as it became apparent, from the movements of the automobile, that the driver intended to cross the track ahead of the car." Certainly there is no conflict between that case and the opinion of this case.

Respondents contend that they follow our latest decision on this point, and cite several cases to sustain their position.

In Heneke v. St. Louis & H. Railroad Co., 335 Mo. 393, 72 S.W.2d 798, in condemning an instruction that the defendant was "not required to attempt to stop the train until plaintiff had actually driven his automobile so near to the crossing as to be in a position of peril. . . ." In that case we said: "Of course, plaintiff would not have been hurt if the automobile had not come upon or so near the crossing that it could be struck by the train, but we have many times held that in such cases the danger zone extends over the distance traversed by plaintiff after he was observably approaching a place of imminent peril of which he was oblivious." (Italics ours.)

In the case of Gray v....