State ex rel. Tunget v. Shain

• Decision Date: 05 January 1937
• Docket Number: 34533
• Parties: State of Missouri at the relation of Christle Tunget, Relator, v. Hopkins B. Shain, Ewing C. Bland and Francis H. Trimble, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

101 S.W.2d 1

340 Mo. 434

State of Missouri at the relation of Christle Tunget, Relator, v. Hopkins B. Shain, Ewing C. Bland and Francis H. Trimble, Judges of the Kansas City Court of Appeals

No. 34533

Supreme Court of Missouri

January 5, 1937

Motion for Rehearing Overruled December 14, 1936.

Motion to Transfer to Banc Overruled January 5, 1937.

Writ quashed.

Wyman Wickersham and Price Wickersham for relator.

The decision of the Kansas City Court of Appeals in this cause is in direct conflict with the last and controlling decisions of the Supreme Court and the Courts of Appeal of this State Williams v. St. L. Pub. Serv. Co., 73 S.W.2d 203; Montague v. M. & K. I. Co., 264 S.W. 817; Beal v. Railroad Co., 285 S.W. 487; Haley v. Railroad Co., 197 Mo. 25; Elliott v. Richardson, 28 S.W.2d 408; Farrar v. Railroad Co., 249 Mo. 217; White v. Railroad Co., 202 Mo. 558; DeRousse v West, 200 S.W. 783; Williams v. Fleming, 267 S.W. 6; Hollenobe v. Pevely Dairy Co., 38 S.W.2d 273; Sluden v. Transit Co., 189 Mo. 136; Rapp v Transit Co., 190 Mo. 153; Robertson v Scoggins, 73 S.W.2d 434; Cox v. Reynolds, 18 S.W.2d 579; Rawie v. Railroad Co., 310 Mo. 72.

Harry L. Thomas and Inghram D. Hook for respondents.

Relator begins by a reference to her suggestions in support of her application for the ceriorari, wherein we find the mistaken statement that to deny the writ would be to overrule forty cases holding that it is proper to submit a case to a jury under both primary negligence and the humanitarian doctrine. For, none of the cases he cites, nor any others, justify such a submission where on the facts of the record it presents "an irreconcilable inconsistency," as the Court of Appeals has found to be the case here with the whole record before it as to plaintiff's given instructions 1 and 2. State ex rel. Himmelsbach v. Becker, 85 S.W.2d 421; State ex rel. Superior Min. Co. v. Hostetter, 85 S.W.2d 743; State ex rel. v. Daues, 19 S.W.2d 703; Cox v. Reynolds, 18 S.W.2d 575; Elliott v. Richardson, 28 S.W.2d 410; White v. Railroad Co., 202 Mo. 558; Crews v. Wilson, 312 Mo. 643, 281 S.W. 46; Sisk v. Railroad Co., 67 S.W.2d 837; Williams v. St. L. Pub. Serv. Co., 73 S.W.2d 199; Todd v. Ry. Co., 37 S.W.2d 561.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an original proceeding in this court by certiorari. Our writ issued to the Kansas City Court of Appeals in a case decided by the court entitled, Tunget v. Cook (Mo. App.), 84 S.W.2d 970, which was an action for damages for personal injuries sustained by plaintiff in a collision between an automobile in which she was riding and an automobile driven by defendant. The cause was tried in the Circuit Court of Jackson County and plaintiff had verdict and judgment in the amount of $ 4500. Upon defendant's appeal the Kansas City Court of Appeals reversed the judgment of the trial court and remanded the cause for a new trial. Whereupon plaintiff invoked our writ of certiorari.

We make the preliminary observation that so far as the facts of the case under examination are involved we are, on certiorari, "limited to the facts" set out in the opinion of the Court of Appeals and "we will not go beyond the opinion to ascertain the facts." [State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S.W. 1042, 1045; State ex rel. Silverforb v. Smith (Mo.), 43 S.W.2d 1054.] Quoting from the opinion, all and the only facts stated therein are as follows: "Plaintiff seeks to recover damages from the . . . defendant, for alleged injuries received in an automobile collision had with defendant's car. . . . The scene of the collision was on Van Horn Road, an east and west highway four slabs wide, between Kansas City and Independence, at its intersection with Claremont Street, about a half mile west of the city limits of Independence. Claremont Street North is about 40 or 50 feet east of Claremont Street South. The plaintiff was driving eastwardly on Van Horn Road on October 4, 1932, about 1:30 P. M., in the second lane from the south side of the road, and defendant, appellant here, was driving west on Van Horn Road, with his car astraddle the center line of the two north slabs of Van Horn Road."

The opinion then sets out the allegations of negligence; that plaintiff's petition charges primary negligence, in several respects therein enumerated, and negligence under the humanitarian rule. Plaintiff's instruction numbered 1 (set out in full in the opinion) submits primary negligence and authorizes a verdict for plaintiff upon a finding of the facts hypothesized therein while her instruction numbered 2 (also set out in full in the opinion) authorizes a finding for plaintiff under the humanitarian rule. Plaintiff's Instruction 1, submitting primary negligence, requires the jury to find, that as defendant's automobile "approached and collided with the motor vehicle in which plaintiff was riding . . . defendant drove and operated his said motor vehicle at a high, excessive and dangerous rate of speed and failed and omitted to have and keep his said motor vehicle under reasonable control." Plaintiff's Instruction 2, submitting a violation of the humanitarian rule, requires a finding, "that as defendant's said motor vehicle approached and collided with the said automobile in which plaintiff was riding, plaintiff was then and there in a place and position of imminent danger and peril from the approach and movement thereof and was unable to extricate herself therefrom and escape injury, if so, and that defendant knew, or by the exercise of the highest degree of care could have known that plaintiff was in such position of danger and peril in time thereafter by the exercise of the highest degree of care and without danger to himself or any person, if you so find, to have stopped his said motor vehicle and turned the same aside and could thereby have prevented said collision, if so, and injury to plaintiff, if any, and failed and omitted so to do." The only assignment of error made was that the trial court "erred in giving plaintiff's instructions No. 1 and No. 2 because said instructions, respectively submitting plaintiff's case under primary negligence and the humanitarian doctrine, did so under two inconsistent and irreconcilable theories." That is the sole basis of the opinion. The Court of Appeals in ruling the assignment says: "It is to be observed that for the jury to follow Instruction No. 1, the jury is permitted to find from the evidence that the defendant had not control of the car and find in plaintiff's favor on prime negligence. It is to be observed further that to follow Instruction No. 2, the jury is permitted to find from the same evidence that defendant did have control of his car and find for plaintiff under the humanitarian rule. Thus, is presented an irreconcilable inconsistency which presents analogy to that fabled acrobatic feat of riding, at the same time, two horses going in opposite directions."

Having set out the two instructions in full and made the foregoing observation that they present "an irreconcilable inconsistency" the opinion states: "For the purposes of this case, we need but cite and quote from Elliott v. Richardson, 28 S.W.2d 408, 410, an opinion by the St. Louis Court of Appeals." That was an action for damages for personal injuries which plaintiff sustained in a collision between an automobile in which she was riding and defendant's automobile "occupied solely by his chauffeur Frank Roehrig." The opinion of the St. Louis Court of Appeals points out that plaintiff's "Instruction No. 2 was based upon . . . primary negligence, and predicated a verdict for plaintiff upon a finding that Roehrig drove his automobile on the wet and slippery street, at such a rate of speed that it would slide and get out of control, and could not be stopped. Instruction No. 4 was the humanitarian doctrine instruction, and hypothesized a recovery upon a finding that Roehrig could have stopped his automobile, or have slowed it down, or have changed its course, so as to have avoided the collision, but negligently failed to do so." The opinion of the St. Louis Court of Appeals then holds, and this is the excerpt from that opinion which the Kansas City Court of Appeals quotes and the principle or ruling of which it adopts in its opinion: "'The point is that if defendant's automobile was run at such a rate of speed that it could not be stopped, as contemplated in Instruction No. 2, then in the exercise of due care it could not have been stopped in time to have avoided the collision, as submitted in Instruction No. 4. We think that under the authorities, defendant's claim of error is well founded. There is no doubt that in a case of this general character, a plaintiff may proceed upon the humanitarian doctrine, and also upon an assignment of primary negligence, such even as excessive speed, provided the two theories are not inconsistent and repugnant to each other. The converse follows, however, that the court cannot, by its instructions legally submit to the jury two separate and inconsistent theories of negligence. Here the two charges were inconsistent to the point that the one disproved the other. The case is not one where plaintiff relies merely upon excessive speed and negligence under the humanitarian doctrine. It goes far beyond that, and the court tells the jury in one breath that they may bring in a verdict for plaintiff if they find that defendant's automobile could not have been stopped, and in the next breath that they may return a verdict for her if they find that the opposite was true. This was error, as we read the authorities, materially affecting the merits of the action, and prejudicial to defendant's rights.' [Crews...