Taylor v. Laderman
| Citation | 161 S.W.2d 253,349 Mo. 415 |
| Decision Date | 13 March 1942 |
| Docket Number | 37816 |
| Parties | Wilbert Taylor v. Ely Laderman, Appellant |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied May 5, 1942.
Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.
Affirmed.
Wilbur C. Schwartz and Morton K. Lange for appellant.
(1) There was no evidence to prove that the defendant was guilty of willful and wanton misconduct in the operation of his automobile which had a direct causal connection with the collision in question. Vassia v. Highland Dairy Farms Co., 232 Mo.App. 886, 104 S.W.2d 686; Clark v Hasselquist, 304 Ill.App. 41, 25 N.E.2d 900; Gardiner v. Kelly, 308 Ill.App.6, 31 N.E.2d 399; McGuire v. McGannon, 283 Ill.App. 293; Sullivan v. Weldon, 284 Ill.App. 644, 2 N.E.2d 588; Proud v. Adelberg, 290 Ill.App. 319, 8 N.E.2d 678; O'Malley v. Eagon, 43 Wyoming, 350, 2 P.2d 1063. (2) The court erred in refusing to permit defendant's counsel to read the deposition of Margaret Sigoletto Springmeyer for the reason that it was admitted by plaintiff's counsel in open court that the witness was ill and unable to be in court. R. S. Mo. 1939, sec. 1944; Steele v. Kansas City So. R. Co., 175 S.W. 177; Pratt v. Conway, 148 Mo. l. c. 299; O'Keefe v. United Rys. Co., 124 Mo.App. l. c. 621. (3) The court erred in refusing to permit counsel for defendant to comment upon the failure of plaintiff to produce Margaret Sigoletto Springmeyer as a witness in his behalf, because she was an adverse witness to defendant, and under the circumstances of this case naturally should and would have been a witness in plaintiff's behalf. McInnis v. St. Louis Southern, Inc., 108 S.W.2d 113, 341 Mo. 677; Cooper v. Met. Life Ins. Co., 94 S.W.2d 1070; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075; 2 R. C. L., p. 12, note 11. (4) The court erred in giving and reading Instruction 1 at the request of plaintiff because: (a) Said instruction completely ignored the defense made by the defendant, and the evidence in support thereof, that he was forced to turn his automobile to the left to avoid a collision with the Behan automobile, which defense and evidence, if true, was sufficient to defeat the theory being submitted by plaintiff as a basis for recovery. Trusty, Constructing and Reviewing Instructions, sec. 6, p. 27, and sec. 11, A and B, pp. 54 and 55; Cantwell v. Cremins, 149 S.W.2d 343; Collins v. Beckman, 79 S.W.2d 1053; Blackwell v. Union Pac. Ry. Co., 52 S.W.2d 814, 331 Mo. 34; Jones v. St. Louis & S. F. Ry. Co., 50 S.W.2d 217, 226 Mo.App. 1152; Bouligny v. Met. Life Ins. Co., 133 S.W.2d 1094; Alexander v. Hoenshell, 66 S.W.2d 165; McCullough v. St. Louis Pub. Serv. Co., 86 S.W.2d 334; Long v. Binnicher, 63 S.W.2d 831, 228 Mo.App. 193; Norton v. Davis, 265 S.W. 111; McCollum v. Winwood Amusement Co., 59 S.W.2d 693; La Pierre v. Kinney, 19 S.W.2d 306; McGuire v. McGannon, 283 Ill.App. 293; Clark v. Hasselquist, 304 Ill.App. 41, 25 N.E.2d 900; 1 Blashfield, Cyclopedia of Law and Procedure, sec. 668; Sullivan v. Weldon, 284 Ill.App. 644, 2 N.E.2d 588; Proud v. Adelberg, 290 Ill.App. 319, 8 N.E.2d 678; Bunch v. McAllister, 266 Ill.App. 248; Shela v. Lehon, 258 Ill.App. 252. (b) It was broader than the pleadings, in that the plaintiff pleaded a violation of speed statutes of the State of Illinois, and the instruction submitted common law speed. Anderson v. Kraft, 129 S.W.2d 85, affirmed 140 S.W.2d 21; State ex rel. v. Ellison, 270 Mo. 645; Gandy v. St. Louis & S. F. Ry. Co., 329 Mo. 459, 44 S.W.2d 634; Kitchen v. Schlueter Mfg. Co., 320 Mo. 1179, 20 S.W.2d 676; Davis v. C. & E. I. Co., 338 Mo. 1248, 94 S.W.2d 370; Engle v. St. Joseph L. H. & P. Co., 44 S.W.2d 175.
Everett Hullverson, Henry A. Freytag and Gregg W. Keegan for respondent.
(1) There is abundant evidence to support a finding that defendant was guilty of willful and wanton misconduct, and the question of whether there was such conduct and whether such conduct was the proximate cause of the injury was a jury question, and the court properly submitted these questions to the jury. Mayberry v. Sivey, 18 Kan. 291; Blashfield, Cyclopedia of Law and Procedure, sec. 669; Shirley v. American Automobile Ins. Co., 300 P. 155; Harrison v. Bingheim, 350 Ill. 269, 182 N.E. 750; Vedder v. Bireley, 92 Cal.App. 52, 267 P. 724; Independent Oil Refinery Co. v. Lueders, 134 So. 418; Windsor v. McKee, 22 S.W.2d 65; Seiffe v. Seiffe, 267 Ill.App. 23; Williams v. Kaplan, 242 Ill.App. 166; Bremer v. Lake Erie & W. R. Co., 318 Ill. 11; Waldren Express Co. v. Krug, 291 Ill. 472; Harned v. Tippett, 302 Ill.App. 258, 23 N.E.2d 931; Streeter v. Humrichouse, 357 Ill. 234; C., B. & Q. R. Co. v. Murowski, 179 Ill. 77; Illinois Central R. Co. v. Leiner, 202 Ill. 624; Rohrer v. Benton, 28 N.E.2d 572; Layton v. Ogonoski, 256 Ill.App. 461; Barmann v. McConachie, 289 Ill.App. 196, 6 N.E.2d 918; Bernier v. Illinois Cent. R. Co., 296 Ill. 464, 129 N.E. 747; Partridge v. Enterprise Transfer Co., 307 Ill.App. 386; Leahy v. Morris, 289 Ill.App. 99; Marks v. Marks, 308 Ill.App. 276; McKenzie v. Randolph, 257 S.W. 126; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924; Jones v. C., B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5; Castro v. Singh, 21 P.2d 169; O'Nellion v. Haynes, 122 Cal.App. 329, 9 P.2d 853; Blair v. May, 19 N.E.2d 490; Jay v. Holman, 20 N.E.2d 656; Hoepner v. Saltzgaber, 102 Ind.App. 458, 200 N.E. 458; Hettmansperger v. Hettmansperger, 103 Ind.App. 632, 5 N.E.2d 685; Manser v. Elder, 263 Mich. 107, 248 N.W. 563; Thomas v. Foody, 54 Ohio App. 423, 7 N.E.2d 820; Morrow v. Hume, Admr., 131 Ohio St. 319, 3 N.E.2d 39; Storck v. Northwestern Casualty Co., 115 F.2d 889; Winthrop v. Carinhas, 195 So. 399. (2) The court properly refused to permit the introduction of the deposition of Margaret Sigoletto Springmeyer. There was a total failure to present to the court any of the conditions of admissibility concerning the deposition. Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874; Edwards v. Met. Life Ins. Co., 137 S.W.2d 591; O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S.W. 705; Heinbach v. Heinbach, 262 Mo. 69, 170 S.W. 1143; State v. Miller, 263 Mo. 326, 172 S.W. 385; Gaty v. United Railways, 251 S.W. 61; Francis v. Willits, 30 S.W.2d 203; Gaul v. Wenger, 19 Mo. 541; R. S. 1939, sec. 1944; 18 C. J., sec. 357, pp. 741-742. (3) The court unwillingly permitted counsel for defendant over objection of plaintiff to comment unduly upon the fact that Margaret Sigoletto Springmeyer was not called as a witness by the plaintiff. The witness, Margaret Sigoletto Springmeyer, was equally available to both parties and defendant cannot convict the trial court of error because defendant failed to produce the witness. Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Porter v. Chicago, B. & Q. R. Co., 325 Mo. 381, 28 S.W.2d 1035; Atkinson v. United Railways, 286 Mo. 634, 228 S.W. 483; Donet v. Prudential Life, 23 S.W.2d 1104; R. S. 1939, sec. 1944. (4) The court did not commit error in giving and reading instruction No. 1 at the request of plaintiff. The instruction properly stated the law applicable and covered all the facts upon which plaintiff's theory depended. The court's instructions, when considered as an entirety and combination, properly and adequately presented all of defendant's theories of nonliability. 14 R. C. L., sec. 55, p. 794; McKeon v. Citizens Ry. Co., 43 Mo. 405; Heinzle v. Met. Street Ry. Co., 213 Mo. 102, 111 S.W. 536; 14 R. C. L., sec. 76, p. 817; Heathcock v. Wolfe, 136 S.W.2d 105; Schneider v. Dubinsky Rlty. Co., 344 Mo. 654, 127 S.W.2d 691; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 60 S.W.2d 666; McIntyre v. St. L. & S. F. R., 286 Mo. 234, 227 S.W. 1047; Krelitz v. Calcaterra, 33 S.W.2d 909; Morrow v. Mo. Gas & El. Co., 315 Mo. 367, 286 S.W. 106; McKenzie v. Randolph, 257 S.W. 126; Moyer v. C. & A. R. Co., 198 S.W. 839; Rigg v. C., B. & Q. R., 212 S.W. 878. (5) The court did not commit error in giving and reading instruction No. 1 at the request of plaintiff. The instruction so given was not broader than the pleadings. Moyer v. Chi. & A. R. Co., 198 S.W. 839; Jones v. Framer, 235 Ill.App. 362; Illinois Central Railroad v. Lenier, 202 Ill. 624; Bernier v. Illinois Central Railroad, 296 Ill. 464; Heidenreich v. Bremner, 260 Ill. 439; Generary v. Chicago & I. Traction Co., 306 Ill. 392; Chicago City Railroad Co. v. Jordan, 215 Ill. 390.
Westhues, C. Bohling and Barrett, CC., concur.
Respondent, Taylor, obtained a judgment in the sum of $ 15,000.00 against appellant, Laderman, as damages for personal injuries sustained in a car collision while riding in Laderman's car as a guest. From this judgment Laderman appealed.
The collision occurred in the State of Illinois and the laws of that state control this case. Plaintiff in his petition alleged that he sustained his injuries as a direct result of the willful and wanton negligence of the defendant in the operation of his automobile. A statute of the State of Illinois, section 58a, Motor Vehicle Act of Illinois, R. S 1937, page 2099, provides in substance that a guest injured in an accident cannot recover damages against the driver of such motor vehicle or its owner unless the injuries were caused by the willful and wanton misconduct of the driver. Appellant's first point briefed is, that there was no evidence to prove that he was guilty of willful and wanton misconduct. A brief statement of the facts, as supported by substantial evidence, will suffice to answer this question. Appellant lived in the city of St. Louis, Missouri. His sweetheart, Hazel Scott, who was a professional singer, also lived in St. Louis. Margaret Sigoletto, a piano player, the plaintiff, who played a bass violin, Miss Scott and another party were engaged to play and sing at a tavern in Benld, Illinois. Their work was usually...
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