Teichman v. Potashnick Const., Inc., 53645

Decision Date13 October 1969
Docket NumberNo. 53645,53645
Citation446 S.W.2d 393
PartiesKent E. TEICHMAN, Plaintiff-Appellant, v. POTASHNICK CONSTRUCTION, INC., and D. L. Harrison Company, a Corporation, Defendants-Respondents.
CourtMissouri Supreme Court

James R. Robison, Edwards & Robison, Sikeston, Sherwood R. Volkman, St. Louis, for appellant.

Finch, Finch, Knehans & Cochrane, Jack O. Knehans, Cape Girardeau, for defendants-respondents.

HOLMAN, Judge.

Plaintiff Kent E. Teichman sought $60,000 damages against defendants John R. Teichman, Potashnick Construction, Inc., and D. L. Harrison Company for personal injuries. About 2 p.m. on December 22, 1961, plaintiff was a passenger in a southbound truck then being driven by his cousin, defendant John R. Teichman, when the truck ran into a 'big hole' on a public road known as the old Cape-Jackson road, went off the right-hand or west side of the road, and struck a tree. On or about June 17, 1964, the sum of $9,450 was paid by or on behalf of defendant John R. Teichman to plaintiff, in consideration of which the latter executed a covenant not to sue and dismissed without prejudice as to that defendant. The case was tried on January 15, 1968. At the close of plaintiff's case the court directed a verdict for defendants Potashnick and Harrison, and from the judgment entered thereon plaintiff has appealed.

Although insisting on appeal that direction of a verdict for defendant Harrison was erroneous, plaintiff frankly concedes that the evidence did not justify submission against defendant Potashnick. Accordingly, we are concerned only with submissibility as to defendant Harrison, to whom we hereinafter frequently refer as defendant. The appeal was originally heard in Division One where an opinion was prepared but not adopted. The case was thereafter transferred to Court en Banc. After submission en Banc an opinion was prepared which was not adopted and the cause has recently been reassigned to the undersigned. Portions of the lastmentioned opinion are here adopted without the use of quotation marks.

We dispose preliminarily of defendant's assertion that plaintiff's motion for new trial was too general to preserve the question of submissibility for appellate review. In Beyer v. Pick, Mo.App., 428 S.W.2d 1, 3, upon which defendant here relies, the motion for new trial merely recited that 'the court erred in sustaining defendant's motion for a directed verdict at the close of plaintiff's evidence,' without bringing to the attention of the trial court any particular reason for objection to that ruling. In instant plaintiff's motion for new trial the initial assignment 'that the court erred in directing a verdict for the defendants' was followed by a statement specifying the reason why the court erred in so doing, to wit, because 'under the plaintiff's evidence a submissible case of negligence was made out against the defendants and the court erred in not submitting the case to the jury on its merits.'

Defendants' motion for a directed verdict had stated generally 'as grounds therefor' that no evidence had been offered or received 'to sustain the allegations against the defendants' or 'proving or tending to prove that defendants were guilty of any negligence, whether alleged or not,' and that plaintiff's evidence established his contributory negilgence; and, as the trial court's comments at the time clearly indicated, the verdict was directed for the reasons that 'there has been no negligence prove against the defendants in this case' and plaintiff's contributory negligence was expressly excluded as a ground for such direction. Advised by plaintiff's motion for new trial of his contention that he did make a submissible case of negligence against defendants, it was the duty of the trial court to re-examine the question whether plaintiff had made a case on any ground of negligence alleged, even as it had been the court's duty in determining defendants' motion for a directed verdict, couched in general terms, to have overruled it if plaintiff had made a case on any ground of negligence alleged. Nelms v. Bright, Mo., 299 S.W.2d 483, 488(12); Ruby v. Clark, 357 Mo. 318, 324, 208 S.W.2d 251, 255(4).

In the circumstances of the case at bar, we are of the opinion that the hereinbefore quoted allegations in plaintiff's motion for new trial adequately advised the trial court of plaintiff's contention and were sufficiently specific to present and preserve the question as to whether plaintiff's evidence made a submissible case of negligence against defendant. That being true, our appellate duty is to 'review the whole record to determine if a case was made for the jury upon any theory of liability set forth in the plaintiff's petition.' Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 667(2).

In resolving the issue as to submissibility, we must consider all of the evidence in the light most favorable to plaintiff, accept it as true where it is not entirely unreasonable or opposed to physical laws, accord to him the benefit of all favorable inferences reasonably deducible from the evidence, and reject all unfavorable inferences. Baumle v. Smith, Mo., 420 S.W.2d 341, 344(2); Nelson v. O'Leary, Mo., 291 S.W.2d 142, 147(3); Holmes v. McNeil, 356 Mo. 763, 768, 203 S.W.2d 665, 668(2). And we must bear in mind that a case may not be withdrawn from the jury unless the facts in evidence and the inferences fairly to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. Hastings v. Coppage, Mo., 411 S.W.2d 232, 235(2); Chappell v. City of Springfield, Mo., 388 S.W.2d 886, 892(8); Capriglione v. Southwestern Bell Tel. Co., Mo., 376 S.W.2d 205, 206(3).

Defendant Harrison, then engaged in construction work on Interstate Route 55 through Cape Girardeau County, had a 'batch plant' near a rock quarry about two miles north of the point of accident. The old Cape-Jackson road was the only route available to defendant over which sand could be transported from a point on the Mississippi River in the south part of Cape Girardeau to the batch plant and, in turn, material could be hauled from the batch plant to the job site. From November 1, 1961, to the date of accident, December 22, 1961, about ten of defendant's Mack tandem dump trucks were steadily engaged in the hauling operation over the old Cape-Jackson road. The empty weight of each truck was approximately 10 tons, the loaded weight approximately 20 tons, and each was licensed for 42,000 pounds or 21 tons. Each truck hauled 'probably 10 loads' every working day. When they were 'hauling steady' the trucks were about 'five minutes apart * * * all day long.'

Before this hauling operation began, the asphalt surface of the old Cape- Jackson road was 'in excellent condition'--'there wasn't hole one in that road * * *.' Within a few days after defendant's trucks commenced to haul over the road, the asphalt surface started to break in certain areas. As witness Keene, one of defendant's truck drivers, described it 'there was some places in the road it seemed like it was kinda' pumpy * * * the dirt would give with you, it was spongy.' Of course, holes in the blacktop did not appear 'the first day,' but at 'softer places in the ground * * * the first week maybe a place would go to breaking up, then another one here and there just until it got pretty bad.' It was 'a sort of progressive thing.' In the areas where the surface broke up, pieces of asphalt worked to the side of the road, 'mires * * * and ruts' developed, and 'the road kept spreading and going down.' The 'hole' at the point of accident (near the Heuer farm home and hereinafter referred to as the Heuer hole) 'was larger, deeper, and extended across the road much more than any of the others.' 'Actually, it was a sort of a ditch' about 1 1/2 feet wide and 6 to 8 inches deep which extended 'about three-quarters way across the road'--'sufficiently across the road to both sides that you could not get around it.'

As soon as the first 'break-through' in the asphalt occurred defendant moved a motor patrol, i.e., a road grader, onto the road. This was (so witness Keene said) 'in two or three days' or 'the first week, maybe.' Whatever the precise initial date may have been, thereafter 'the motor patrol was on the job all the time.' Defendant had 'a foreman there and a lot of times he'd say, 'don't bring a load of sand this time * * * bring a load (of chat) for the road," so chat was hauled for the road by some of defendant's drivers 'every day.' This chat was spread on the broken areas of the roadway and 'then the motor patrol would keep it level, or try to.' Witness Keene described particularly what defendant did at the Heuer hole: 'The road got pumpy * * * like you run over rubber, and after the blacktop broke up, why, it would just work out ruts, and we'd haul gravel or chat * * * every day and put in it and they would keep it smoothed up but it would still keep rutting out * * *. As we kept going through it, naturally, the road kept widening out * * * and that's what the motor patrol would do was to bring this back and then we'd put fresh chat in there and try to keep it smooth * * *. When it would wallow out (defendant) kept trying to fix it.' But the trucks were 'coming along there pretty frequently and it just wallowed out at the best they could do, and it was bad, real bad.' The same witness said that the motor patrol 'was used wherever it was needed the worst' on the road but that 'I have an idea it was at that one particular place (the Heuer hole) every day at some time. Witness Heuer (who was away from home, working, most every day) thought that he had seen them blade the hole 'at least three times a week.'

During the period under discussion, the Cape Special Road District also did some grading and blading of the old Cape-Jackson road, although the nature and extent of such work by the Road District were not shown. However, when witness Heuer talked...

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