Swain v. Anders

• Decision Date: 01 July 1942
• Docket Number: 38024
• Citation: 163 S.W.2d 1045,349 Mo. 963
• Parties: Ellev Swain, Appellant, v. Herman Anders, and Claude Newingham
• Court: Missouri Supreme Court

163 S.W.2d 1045

349 Mo. 963

Ellev Swain, Appellant, v. Herman Anders, and Claude Newingham

No. 38024

Supreme Court of Missouri

July 1, 1942

Rehearing Denied July 28, 1942.

Appeal from Cape Girardeau Circuit Court; Hon. James C McDowell, Judge.

Reversed and remanded.

Claud F. Cooper and T. J. Crowder for appellant.

(1) Instructions on contributory negligence must be confined to the acts of negligence pleaded and proved. Schide v. Gottschick, 329 Mo. 64; King v. Reith, 108 S.W.2d 5; Bullmore v. Beller, 33 S.W.2d 61; Ducoulombier v. Baldwin, 101 S.W.2d 96; Perkins v. Kansas City So. Ry. Co., 49 S.W.2d 103; Watts v. Moussette, 85 S.W.2d 487; Barrett v. Town of Canton, 93 S.W.2d 927; Rentfrow v. Thompson, 156 S.W.2d 700. (2) Instructions assuming the negligence of a defendant or the contributory negligence of the plaintiff, or failing to require the jury to find from the evidence that such acts do constitute negligence, are fatally defective and constitutes reversible error. Schide v. Gotteschick, 329 Mo. 64; King v. Rieth, 108 S.W.2d 5; Bullmore v. Beller, 33 S.W.2d 61; Ducoulombier v. Baldwin, 101 S.W.2d 96; Perkins v. Kansas City So. Ry. Co., 49 S.W.2d 103; Watts v. Moussette, 85 S.W.2d 487; Barrett v. Town of Canton, 93 S.W.2d 927; Rentfrow v. Thompson, 156 S.W.2d 700.

R. F. Baynes and Harry H. Bock for respondents.

(1) This court should sustain respondents' motion to dismiss the appeal in this cause, for the reason appellant has failed to comply with rules 11, 13, 15, and 16 of this court, in that the abstract of record filed by appellant does not comply with the rules of this court. Rules 11, 13, 15, 16, Supreme Court; Stanton v. Slabaugh, 11 S.W. 577; Clark v. Fairley, 13 S.W. 686, 100 Mo. 236; Thompson v. Allen, 18 S.W. 35, 107 Mo. 479; Cunningham v. Union Pac. Ry. Co., 19 S.W. 822, 100 Mo. 208; Carlisle v. Russell, 30 S.W. 118, 127 Mo. 465; Ramsey v. Shannon, 41 S.W. 732, 140 Mo. 281; Brand v. Cannon, 24 S.W. 434, 118 Mo. 595. (2) The court did not err in giving and reading to the jury Instruction 4, Instruction 7, and Instruction 5. King v. Rieth, 108 S.W.2d 1; Dorman v. East St. Louis R. Co., 335 Mo. 1082, 75 S.W.2d 854; Arnold v. May Dept. Stores Co., 337 Mo. 727, 85 S.W.2d 748; Carr v. St. Joseph, 225 S.W. 922. (3) The court did not err in giving and reading to the jury Instruction 9. Renoist v. Driveaway Co., 122 S.W.2d 91; Scott v. Kansas City Pub. Serv. Co. (Mo. App.), 115 S.W.2d 518; Klohr v. Edwards, 94 S.W.2d 99; Robinson v. Mayer, 94 S.W.2d 1067; Benzel v. Anishanzlin, 297 S.W. 180; Myers v. Nissenbaum, 6 S.W.2d 993; Borowski v. Loose-Wiles Biscuit Co., 229 S.W. 424; King v. Rieth, 108 S.W.2d 1; Dorman v. East St. Louis R. Co., 335 Mo. 1082, 75 S.W.2d 854; Arnold v. May Dept. Stores Co., 337 Mo. 727, 85 S.W.2d 748; Carr v. St. Joseph, 225 S.W. 922. (4) The evidence on the part of plaintiff was insufficient to make a submissible case. Defendants' instruction in the nature of a demurrer to the evidence should have been given at the close of the whole case. (a) An instruction in the nature of a demurrer to the evidence challenges the sufficiency of the evidence to make a submissible case, and a demurrer to the evidence should be sustained where there is no evidence. Macklin v. Fogel Const. Co., 31 S.W.2d 14; Milliken v. Thyson Comm. Co., 100 S.W. 604, 202 Mo. 637; Kennedy v. Met. St. Ry. Co., 128 Mo.App. 297; Kendrix v. Harris, 171 Mo.App. 208; State ex rel. Baumunk v. Goetz, 131 Mo. 675; Smarr v. Smarr, 6 S.W.2d 860; Near v. Railroad Co., 168 S.W. 1186. (b) The court should not submit a case where a mere conjecture or suspicion might be raised by the proof of a given state of facts favorable to the plaintiff. Stokes v. Burns, 33 S.W. 460, 132 Mo. 214. (c) The testimony of the witness Hadoway, is so contradicting and conflicting, no case could be made, or based on his testimony. Swain v. Anders, 140 S.W.2d 730; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Roehl v. Ralph, 84 S.W.2d 405; Seitz v. Hudson, 106 S.W.2d 523. (d) The court is not bound by testimony demonstrated to be false by all the facts and by common knowledge of scientific facts. Sexton v. Met. Street Ry. Co., 149 S.W. 21; Payne v. C. & A. Ry. Co., 38 S.W. 308, 136 Mo. 562; Carner v. St. L.-S. F. Ry. Co., 89 S.W.2d 947, 338 Mo. 257; Tate v. Western Union Tel. Co., 96 S.W.2d 364, 339 Mo. 262.

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

OPINION

DALTON

This is an action for $ 10,000 damages for the death of plaintiff's husband, who was killed in a collision between the automobile he was operating and a truck traveling in the opposite direction on Highway 62 in New Madrid County. The jury returned a verdict for defendants, and plaintiff has appealed.

The petition charged defendants (the operator of the truck and his employer) with negligence (1) in failing to keep a look-out ahead, and laterally, for the presence and approach of other vehicles on the highway; (2) in failing to drive as close to the right hand side of the highway as practicable under the circumstances; (3) in operating the truck at an excessive and dangerous rate of speed, endangering the lives and safety of others; and (4) negligence under the humanitarian doctrine in failing to stop, slacken speed, swerve the truck or warn deceased. The cause, however, was submitted to the jury on the 1st and 3rd assignments of negligence and in the conjunctive, to-wit, negligence in failure "to keep a careful watch and lookout ahead and laterally for the presence and approach of other automobiles and persons" and negligence in "driving and operating the said motor truck at a high, unreasonable and dangerous rate of speed under the circumstances then and there existing."

The answer, after a general denial, charged that plaintiff's husband was guilty of contributory negligence (1) in failing to keep a look-out ahead and laterally for the presence and approach of motor vehicles; (2) in failing to drive as near the right hand side of the highway as practicable; (3) in carrying on a conversation with a person in the automobile with him; (4) in driving his automobile at a high, excessive and dangerous rate of speed and failing to have the same under control, so he could stop upon the approach of danger, and (5) in turning to the left into the path of defendants' approaching motor vehicle.

This is the second appeal of the case, and, according to appellant, the cause has been tried three times to a jury, with two verdicts for plaintiff, when the cause was submitted on humanitarian negligence, and one (the last) for defendant when submitted on primary negligence. Motions for new trial were sustained after the first two verdicts for plaintiff. When the trial court sustained the motion for a new trial after the second verdict, plaintiff appealed to the Springfield Court of Appeals. That court affirmed and remanded the cause, holding the evidence insufficient to make a submissible case under the humanitarian doctrine, but sufficient to make a case on primary negligence. [Swain v. Anders (Mo. App.), 140 S.W.2d 730, 735, 737.]

On this appeal appellant (plaintiff) assigns error on the instructions on contributory negligence given at the request of respondents (defendants), while respondents contend the error, if any, were harmless, because plaintiff's evidence was not sufficient to make a submissible case and the trial court should have sustained their demurrer to the evidence at the close of the whole case. In what particulars the evidence is deficient is not pointed out, except as may be inferred from statements that "the testimony of the witness Hadoway is so contradicting and conflicting, no case could be made, or based on his testimony;" that "testimony demonstrated to be false by all the facts and common knowledge of scientific facts" is valueless; and that "mere conjecture or suspicion are insufficient to make out a case for plaintiff." In reply, appellant contends that, since the evidence on the last trial was substantially the same as on the former trial, the holding of the Court of Appeals that "there was ample evidence . . . to make a submissible case on primary negligence" is controlling.

Ordinarily, matters decided on one appeal, where the issues and evidence are the same, will be considered settled law on a second appeal in the same case, except where a mistake of fact has been made or where the decision did not do justice to the parties. [Yakubinis v. M. K. & T. R. Co., 345 Mo. 943, 137 S.W.2d 504.] However, it does not appear from the opinion of the Springfield Court of Appeals that the issue of the sufficiency of the evidence to make a case for the jury on the charges of primary negligence, upon which the cause was last submitted, was before that court on the prior record. [Swain v. Anders, supra; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 95.] According to the record on that appeal, defendants had demurred to the evidence at the close of the whole case and, after their demurrer had been overruled, the cause was submitted to the jury "solely under the humanitarian doctrine." Plaintiff had appealed from the order granting defendants a new trial on the ground that the court erred in overruling defendants' demurrer to the evidence. The issue presented on that appeal was the sufficiency of the evidence to make a case for the jury under the humanitarian doctrine, the theory upon which it had been tried and submitted by the plaintiff. We must, therefore, on his appeal determine the sufficiency of the evidence to make a submissible case upon the theory upon which the cause was last submitted to the jury.

Stated most favorably to plaintiff, the evidence tended to show that on November 28, 1938, about 6 p.m. deceased, accompanied by one Hadoway, was driving a Chevrolet...