Taylor v. Superior Oxy-Acetylene Co.

• Decision Date: 12 June 1934
• Docket Number: 31170
• Citation: 73 S.W.2d 186,335 Mo. 379
• Parties: William Taylor, Annie Taylor, Bennie Taylor, James Taylor and Isiah Taylor, Infants, by Annie Wells, Their Next Friend and Guardian, v. Superior Oxy-Acetylene Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 186

335 Mo. 379

William Taylor, Annie Taylor, Bennie Taylor, James Taylor and Isiah Taylor, Infants, by Annie Wells, Their Next Friend and Guardian, v. Superior Oxy-Acetylene Company, a Corporation, Appellant

No. 31170

Supreme Court of Missouri

June 12, 1934

Rehearing Overruled April 19, 1934.

Motion to Transfer to Banc Overruled June 12, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge; Opinion filed at September Term, 1933 March 14, 1934; motion for rehearing filed; motion overruled April 19, 1934; motion to transfer to Court en Banc filed motion overruled at May Term, June 12, 1934.

Reversed and remanded.

Wayne Ely and Tom Ely for appellant.

The court erred in giving Instruction 10, requested by the plaintiff, and over the objection and exception of the defendant at the time. Plaintiff's petition alleges that a cause of action accrued to them by virtue of Section 4217, Revised Statutes 1919 (Sec. 3262, R. S. 1929), and, though Eli Taylor was killed by collision between two privately owned vehicles, this Instruction 10 authorizes the jury to consider the mitigating and aggravating circumstances attending the neglect or default of defendant, and is erroneous and reversible error. Neither the pleadings nor the evidence warrant this instruction authorizing punitive damages, and compensatory damages for their pecuniary loss is all that the plaintiffs are entitled to. Schrader v. Burkel, 260 S.W. 65; Nicholas v. Kelley, 139 S.W. 251, 159 Mo.App. 20; Coleman v. Himmelberger-Harrison Lumber Co., 79 S.W. 986, 105 Mo.App. 254; Stookey v. Ry. Co., 236 S.W. 429, 209 Mo.App. 33; Johnson v. Dixie Min. & Dev. Co., 156 S.W. 33, 171 Mo.App. 134; Smith v. Ozark Water Mills Co., 238 S.W. 575; State ex rel. v. Ellison, 195 S.W. 725, 270 Mo. 645; State ex rel. v. Ellison, 213 S.W. 463, 278 Mo. 649; Parsons v. Ry. Co., 6 S.W. 469, 94 Mo. 286.

Everett Hullverson and Staunton E. Boudreau for respondents.

The court did not err in giving and reading to the jury plaintiffs' requested Instruction 10. Secs. 3263, 3264, R. S. 1929; Abbott's Law Dictionary; Bouvier's Law Dictionary; Balentine's Law Dictionary; Black's Law Dictionary; Sedgwick, Damages (8 Ed.), sec. 51; Swank v. Elwert, 55 Ore. 501, 105 P. 901; Buckley v. Knapp, 48 Mo. 152; Goetz v. Ambs, 27 Mo. 28; Culbertson v. Ellis, 6 F. 3461, 6 McLean, 248; Emblen v. Myers, 6 H. & N. 54, 58 Reprint, 23; Goddard v. Railroad Co., 57 Mo. 202, 2 Am. Rep. 39; Dalton v. St. Louis Smelting & Ref. Co., 188 Mo.App. 529, 174 S.W. 468; Treadway v. United Rys. Co., 282 S.W. 441; Gray v. McDonald, 16 S.W. 398, 104 Mo. 400; Haehl v. Railroad Co., 24 S.W. 737, 119 Mo. 325; Muller v. Harvey, 204 S.W. 926, 199 Mo.App. 628; Troll v. Gas Light Co., 182 Mo.App. 608, 169 S.W. 337; Johnson v. Mining Co., 171 Mo.App. 141, 156 S.W. 33; Hall v. Railroad, 119 Mo. 325, 24 S.W. 737; Ikinroth v. Railroad, 102 Mo. 597, 77 S.W. 162; Polk v. Krenning, 2 S.W.2d 107; Boyd v. Railway, 249 Mo. 110, 155 S.W. 13.

Gantt, J. All concur, except Hays, J., absent.

OPINION

GANTT

Action to recover for the death of Eli Taylor father of the plaintiffs. He was riding in a truck which collided with another truck at the intersection of Kingshighway and Farlin Avenue in the city of St. Louis. The petition alleged seven charges of primary negligence, including excessive speed, and a charge of negligence under the humanitarian rule. Plaintiffs abandoned the charges of primary negligence and the case was submitted under the humanitarian rule by an instruction directing the jury, in substance, that if defendant could have stopped or slackened the speed or swerved or sounded a warning, thereby avoiding the collision and failed to do so, the verdict should be for the plaintiffs. Judgment for $ 10,000, and defendant appealed.

Farlin Avenue is twenty-six feet, three inches wide and runs east and west. Kingshighway is one hundred eighteen feet, four inches wide and runs north and south. In the center of said highway is a parkway sixty-four feet wide, on either side of which is a driveway twenty-seven feet, two inches wide. The east side driveway is exclusively for northbound traffic, and the west side driveway is exclusively for southbound traffic. In intersecting Kingshighway, Farlin Avenue passes through the parkway in said highway. The corners of the lots at the intersection are rounded, and the corners of the divided parkway at the intersection are also rounded.

On the day in question the father of plaintiffs was riding on the right side of the driver's seat of an empty one-ton Ford truck owned and driven by Walter L. Richardson. It was being driven south on the west side of Kingshighway and from a point north of the intersection of Kingshighway and Farlin Avenue. At the time an employee of defendant was driving a loaded two and one-half ton Reo truck north on the east side of Kingshighway, intending to drive northward through the intersection. At the intersection the Ford, moving at fifteen miles an hour, turned east on Farlin Avenue. It proceeded eastward between the divided parkway, and at a point midway between the sides of the parkway was moving five miles an hour. The driver of the Reo saw the Ford turn onto Farlin Avenue and move eastward to the point midway between the sides of the parkway. At the time the driver of the Ford was midway between the sides of the parkway he saw the Reo truck one hundred to one hundred twenty-five feet south of the south curb line of Farlin Avenue. It was then moving northward, at twenty to twenty-five miles an hour, in the center of the street on the east side of Kingshighway. After reducing the speed to five miles an hour at a point midway between the sides of the parkway, the driver of the Ford proceeded to and did increase the speed from five to fifteen miles an hour as the Ford, then five feet from the south curb line of Farlin Avenue, moved directly eastward into the east side intersection of Kingshighway and Farlin Avenue. The driver of the Ford did not again notice the approaching Reo until the Ford...