State ex rel. Kansas City Public Serv. Co. v. Bland

• Decision Date: 01 May 1945
• Docket Number: No. 39209.,39209.
• Citation: 187 S.W.2d 211
• Parties: STATE OF MISSOURI EX REL. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. EWING C. BLAND, NICK T. CAVE and SAMUEL A. DEW, Judges of the Kansas City Court of Appeals, and EVELINE B. BILLINGSLEY (MRS. EVELINE B. BROADSTON), Party to be Adversely Affected.
• Court: Missouri Supreme Court

187 S.W.2d 211 STATE OF MISSOURI EX REL. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator,
v.
EWING C. BLAND, NICK T. CAVE and SAMUEL A. DEW, Judges of the Kansas City Court of Appeals, and EVELINE B. BILLINGSLEY (MRS. EVELINE B. BROADSTON), Party to be Adversely Affected. No. 39209. Supreme Court of Missouri. Division One, May 1, 1945.

Certiorari.

OPINION OF COURT OF APPEALS QUASHED IN PART.

Charles L. Carr and Hogsett, Trippe, Depping & Houts for relator.

(1) Under the controlling decisions of this court plaintiff's Instructions 3 and 7 assumed and estopped plaintiff to deny, both for the purpose of trial and for the purpose of defendant's appeal, that there was substantial evidence that the driver was intoxicated. Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W. (2d) 471; Blankenship v. St. Louis Pub. Serv. Co., 71 S.W. (2d) 723; Johnson v. Hurck Delivery Service, 171 S.W. (2d) 656. (2) The Court of Appeals undertook to decide an issue of fact which the trial withdrew from the jury, in contravention of controlling decisions of this court holding that the evidence and inferences must be considered in the light most favorable to the party ruled against by the trial court, and that an appellate court may never weigh conflicting evidence, or determine for itself, questions of fact which were or should have been submitted to the jury. Rothe v. Hull, 180 S.W. (2d) 7; Clarke v. Jackson, 342 Mo. 537, 116 S.W. (2d) 122; Jones v. C., B. & Q.R., 343 Mo. 1104, 125 S.W. (2d) 5. (3) Under controlling decisions of this court the evidence stated by the Court of Appeals was sufficient to prove intoxication of the driver beyond a reasonable doubt. State v. Carlson, 325 Mo. 698, 29 S.W. (2d) 135; State v. Kissinger, 343 Mo. 781, 123 S.W. (2d) 81; State v. Harrison (Mo. Sup.), 24 S.W. (2d) 985; State v. Cain, 37 S.W. (2d) 416; State v. Davis, 143 S.W. (2d) 244; State v. Hatcher, 303 Mo. 13, 259 S.W. 467; State v. Griffin, 6 S.W. (2d) 866; State v. Caruthers, 17 S.W. (2d) 940; State v. Revard, 106 S.W. (2d) 906. (4) In holding there was no substantial evidence that the driver was intoxicated the Court of Appeals has ruled arbitrarily and in disregard of facts of universal knowledge, in contravention of still other controlling decisions of this court. Reineman v. Larkin, 222 Mo. 156; State ex rel. K.C.S. Ry. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915; State ex rel. Banks v. Hostetter, 125 S.W. (2d) 835; State ex rel. Johnson v. Blair, 174 S.W. (2d) 851. (5) In overruling assignments of error in respect to plaintiff's instructions, on the untenable ground that there was no substantial evidence that the driver was intoxicated, the Court of Appeals also ruled arbitrarily and erroneously, and contravened three lines of controlling decisions of this court bearing upon the instructions. State ex rel. K.C.S. Ry. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915; State ex rel. Banks v. Hostetter, 125 S.W. (2d) 835; State ex rel. Johnson v. Blair, 351 Mo. 1072. (6) In holding that instructions 1 and 7 were not erroneous for authorizing a verdict for plaintiff as for primary negligence of the defendant, without submitting or mentioning the defense of contributory negligence of plaintiff in riding with an intoxicated driver, the Court of Appeals has erred and contravened controlling decisions of this court holding that it is error to authorize a verdict for the plaintiff without submitting or mentioning a defense of contributory negligence raised by the answer and the evidence, and not submitted in any other instruction. Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 59 S.W. (2d) 633; Davis v. City of Independence, 330 Mo. 201, 49 S.W. (2d) 95. (7) In refusing to hold that evidence that the driver was intoxicated, erroneously withdrawn from the jury by plaintiff's instructions 3 and 7, was material in defendant's favor upon the issue of whether defendant was chargeable with humanitarian negligence, and upon the issue of whether the negligence of the driver was the sole cause of the accident, the Court of Appeals contravened a controlling decision of this court. Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W. (2d) 1011. (8) In holding that plaintiff's instructions 3 and 7 were not erroneous for withdrawing from the jury evidence of intoxication of the driver, the Court of Appeals has contravened the controlling decisions of this court holding that it is reversible error for an instruction given at the request of the plaintiff to exclude from consideration of the jury facts or evidence favorable to the defendant. Lloyd v. Alton R., 348 Mo. 1222, 159 S.W. (2d) 267; Perkins v. K.C.S. Ry., 329 Mo. 1190, 49 S.W. (2d) 103; Smithers v. Barker, 341 Mo. 1017, 111 S.W. (2d) 47. (9) The Court of Appeals erred and contravened the controlling decisions of this court in holding that plaintiff's instructions 1 and 7 were not erroneous for submitting degrees of negligence and authorizing recovery as for any degree, or the slightest degree, of negligence on the part of defendant. Magrane v. Railway Co., 183 Mo. 119; Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144; Hires v. Letts Melick Grocery Co., 296 S.W. 408; Perkins v. K.C. Southern Ry., 329 Mo. 1190, 49 S.W. (2d) 103; Cento v. Security Bldg. Co., 99 S.W. (2d) 1; Young v. St. Louis, I.M. & S. Ry., 227 Mo. 307, 127 S.W. 19; Grange v. C. & E.I. Ry. Co., 334 Mo. 1040, 69 S.W. (2d) 955; Dove v. Atchison, T. & S.F. Ry. Co., 349 Mo. 798, 163 S.W. (2d) 548. (10) In holding that plaintiff's instructions 1, 3 and 7 were not so misleading, confusing and argumentative as to require reversal of the judgment, the Court of Appeals contravened controlling decisions of this court. Rice v. Transit Co., 216 S.W. 746; Lammert v. Wells, 13 S.W. (2d) 547; Gleason v. Texas Co., 46 S.W. (2d) 546; Dawes v. Starrett, 336 Mo. 897, 82 S.W. (2d) 43; James v. Mo. Pac. Ry., 107 Mo. 480; Stid v. Railroad Co., 236 Mo. 382; Stuart v. Dickinson, 290 Mo. 516; Freeman v. Berberich, 332 Mo. 831, 60 S.W. (2d) 393; Gardner v. St. Louis Union Trust Co., 85 S.W. (2d) 86.

[187 S.W.2d 212]

Trusty & Pugh and John W. Hudson for respondents and Eveline B. Billingsley (Mrs. Eveline B. Broadston).

(1) By its Instruction M defendant abandoned all of that half of its third plea of contributory negligence combining her riding with a driver "in an intoxicated condition" and driving negligently "as aforesaid" and no prejudicial error arose because plaintiff did not supplement M by independently submitting such charge as alleged, and by instructions 3 and 7 plaintiff is not estopped to show insufficient evidence and on the issue the opinion is not in conflict with controlling opinions of this court. Neal v. Caldwell, 34 S.W. (2d) l.c. 112; Knorp v. Thompson, 175 S.W. (2d) 889; Hutchison v. Thompson, 175 S.W. (2d) 903; Brainard v. Mo. Pac. R. Co., 319 Mo. 890, 5 S.W. (2d) 15; Bonnarens v. Lead, etc., Co., 309 Mo. 65, 273 S.W. 1043; 1 Raymond, Missouri Instructions, sec. 35, p. 38; Hill v. Landau, 125 S.W. (2d) 516; Zambruski v. Ludewig, 110 S.W. (2d) 825; Studt v. Leiweke, 100 S.W. (2d) 30; Pyle v. McNealy, 62 S.W. (2d) 921; Zimmerman v. Salter, 141 S.W. (2d) 137; Tocco v. C.D. Kenny Co., 269 S.W. 928; Bowman v. Moore, 167 S.W. (2d) 675; Evans v. Atchison, T. & S.F. Ry. Co., 131 S.W. (2d) 604. (2) The end parts of instructions 3 and 7 do not withdraw substantial, or any, evidence on the issue about intoxication and if either or both had done so no prejudicial error would arise under the facts or the instructions or the law. Relator presents this under (3) of its brief, and under VII of its petition. Secs. 973, 1228, R.S. 1939; State ex rel. Banks v. Hostetter, 125 S.W. (2d) 835. (3) Requirements of sole cause instructions and effect. Hopkins v. Highland Dairy Farms Co., 159 S.W. (2d) 254; Semar v. Kelly, 176 S.W. (2d) 289; Bowman v. Standard Oil of Indiana, 169 S.W. (2d) 384; Smithers v. Barker, 111 S.W. (2d) 47. (4) Concurring negligence and its meaning and rules on...