Sullivan v. Hanley, 7930

• Decision Date: 06 June 1961
• Docket Number: No. 7930,7930
• Citation: 347 S.W.2d 710
• Parties: Ralph SULLIVAN, Plaintiff-Respondent, v. Roy HANLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 710

347 S.W.2d 710

Ralph SULLIVAN, Plaintiff-Respondent, v. Roy HANLEY, Defendant-Appellant.

No. 7930.

Springfield Court of Appeals, Missouri.

June 6, 1961.

Rehearing Denied June 29, 1961.

Roberts & Roberts, Farmington, for defendant-appellant.

Bloodworth & Bloodworth, Ted M. Henson, Ted M. Henson, Jr., Poplar Bluff, for plaintiff-respondent.

ELMO B. HUNTER, Special Judge.

This action arose out of an automobile collision which occurred about 5:15 p. m. on March 21, 1957, at the intersection of Highway 67 and Vine Street in Poplar Bluff, Missouri, between a 1956 Chevrolet automobile being driven in a southerly direction on Highway 67 by defendant-appellant Roy Hanley, and an automobile being driven in a westerly direction on Vine Street by plaintiff-respondent Ralph Sullivan.

The suit was filed in Butler County and on a change of venue was transferred to Stoddard County. The trial resulted in a jury verdict and judgment for plaintiff for $6,000.

On this appeal defendant presents five contentions of error. We shall consider them in the order presented, and discuss the evidence only to the extent necessary to an understanding and disposition of the particular contention.

Defendant's first contention is that the trial court erred in giving Instruction No. P-1 because 'it erroneously defines defendant's duties under the law by fixing the time of plaintiff's peril as immediately before the collision and requiring defendant to avoid the collision after discovering plaintiff's position of peril at that time.'

This case was tried on June 7, 1960, and Civil Rule 79.03, effective April 1, 1960, V.A.M.R., is applicable. The pertinent provisions read: 'Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial; * * * Where definite objections or requests were made during the trial in accordance with Rule 79.01, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient. If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.' (Italics ours).

This rule changed the former practice of assigning generally error in instructions, and requires not only that an instruction be objected to prior to the submission of the case to the jury but also that either before submission to the jury or in the motion for new trial the party objecting must make a specific objection to the instruction; otherwise the objection is not preserved for appellate review. Thus, if a general objection to the instruction is made before submission to the jury then it is necessary to include a specific allegation of error in the motion for a new trial in order to preserve the objection for appellate review.

Under this rule and Rule 70.02 specific objections to instructions may be made wholly before submission to the jury, wholly in the motion for a new trial, or partly before submission and partly in the motion for a new trial. Unless this specific objection is timely made it is not preserved for appellate review.

According to the transcript, prior to the submission of the case to the jury the defendant made only a general objection to the various instructions. In defendant's 'Motion for a directed verdict, or in the alternative for a new trial' the objection to Instruction P-1 was: '1. Said instruction does not properly declare the law.' Four additional specific reasons were given in the motion for a new trial as to why Instruction P-1 was objectionable, but none of them contained the reason or objection which defendant presents in his brief as his first assignment of error.

Since defendant has failed to include his present specific objection to Instruction No. P-1 either in his objections to instructions made prior to submission of the case to the jury, or in his motion for a new trial, the matter is not preserved for appellate review.

Defendant's next complaint against Instruction No. P-1, which complaint was properly preserved by specific objection in the motion for new trial, is that there was no evidence that defendant could have swerved and that thus the instruction was not supported by evidence. The instruction read: '* * * with safety * * * have swerved said Chevrolet motor vehicle and stopped the same * * * (and) thereby prevented said collision. * * *'

Plaintiff placed defendant approximately fifty feet from him when plaintiff first saw defendant. At this time plaintiff's car was in the path of defendant's car and in the intersection in the southbound lane of Highway 67 traveling west about five miles per hour. The front wheels of plaintiff's car were in the middle of defendant's lane of travel. Defendant concedes that at this time plaintiff was in a position of imminent peril. There was testimony to the effect that at the speed defendant was then traveling defendant could have stopped his car just short of an impact even if defendant had continued on in a straight path. Plaintiff stopped his car with its front wheels at the west edge of Highway 67 'to let Mr. Hanley swerve into Vine Street. Q. And was he turning at the time you stopped, into Vine Street? A. Yes, Sir.' That defendant was turning some is further supported by the testimony of plaintiff that 'His (car's) left front struck my right front.'

To defendant's right (west) was an expanse of smooth concrete which cars could and did use. On this concrete at an unspecified distance to the west of the point of impact was a fire plug and telephone pole. West of them was a continuation of this smooth cement area. There was testimony to the effect that it is 34 feet and 6 inches from the middle of Vine Street to the curb where the fire plug was located. Plaintiff's exhibits B and C are large, clear pictures of the intersection showing the location of this smooth concrete area and of the fire plug and telephone pole thereon. Plaintiff's Exhibit A is a scale drawing of the highway intersection and its approaches. While it may be that there is no specific evidence of an unobstructed path into which defendant could have swerved and kept going, it is clearly evident that by swerving some to his right, as plaintiff testified defendant was commencing to do, defendant would have had a longer distance within which to stop before the path of his vehicle would have crossed the path of plaintiff's vehicle than defendant would have had if he had kept on going straight south without any swerving. Since there was evidence to the effect that defendant without swerving could have stopped in time to have prevented the accident it is obvious that by a combined swerving and stopping operation defendant at least to some extent would have a better opportunity to avoid the collision. Thus, there was evidence from which the jury could find that defendant by an effort both to swerve and to stop could have prevented an impact of the two automobiles. See, Nelson v. O'Leary, Mo.Sup., 291 S.W.2d 142, 147(506); Davidson v. King, Mo.App., 309 S.W.2d 132, 137. We find no merit in defendant's contention to the contrary.

Defendant's third assignment of error, specifically mentioned in his motion for a new trial, is that the trial court error in giving Instruction No. P-3 because it misdirects the jury by telling them to estimate damages, thereby giving it a roving commission to assess damages according to its own estimate and speculation and not according to the law and the evidence. The instruction reads:

'The Court instructs the jury that if you find the issues in favor of the plaintiff, Ralph Sullivan, you will assess his damages as such sum as you find and believe from the evidence will compensate him for the injuries, if any, sustained by him as shown by the evidence; and in estimating such damages you will take into consideration the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which he has endured and suffered and which he is reasonably certain to endure and suffer in the future; the character and extent of his injuries, if any, and whether they are temporary or permanent; the reasonable and necessary sums, if any, which he has expended for medical and hospital expenses by reasons of such injury, if any.' (Italics ours).

In Webster's New International Dictionary the verb estimate is defined as 'to fix the worth, value, size, extent, etc. of, esp. roughly or in a general way.' The noun 'estimate' is defined as meaning: 'Act of valuing, or appraised value, 2. a judgment or opinion usually implying careful consideration or research * * * 3. a judgment made by calculation, esp. from incomplete data; rough or approximate calculation.'

It is to be noted in favor of the instruction that it requires the damages to be assessed (determined) from the evidence. In this respect the instruction is distinguishable from that considered in Petty v. Henroid, Mo.Sup., 313 S.W.2d 688, 690, wherein the court held that instructing the jury it could 'take into consideration your common knowledge and experience in life' was reversible error because it encouraged the jury to take into consideration whatever other conceivable elements outside the evidence they wished in connection with those the court had enumerated.

It is well known that as a practical matter a jury has no positive and specific dollar value schedule or precise mathematical formula to use in determining the damages to be given as reasonable compensation for the physical injury and bodily pain experienced in any particular case. See, Faught v. Washam, Mo.Sup., 329 S.W.2d 588, 602(27). Yet the very difficulty of the task the jury must perform in determining fair compensation for bodily injury and for pain and suffering demonstrates the need for the jury to confine its...