Tramill v. Prater

• Citation: 152 S.W.2d 684,236 Mo.App. 757
• Parties: CHARLES TRAMILL, RESPONDENT, v. BEN PRATER, APPELLANT
• Decision Date: 05 May 1941
• Court: Court of Appeals of Kansas

152 S.W.2d 684

236 Mo.App. 757

CHARLES TRAMILL, RESPONDENT, v. BEN PRATER, APPELLANT

Court of Appeals of Missouri, Kansas City

May 5, 1941

Rehearing Denied June 16, 1941.

Appeal from Circuit Court of Cass County.--Hon. Leslie A. Bruce Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Crouch & Crouch, William M. Kimberlin, Mitchel J. Henderson, Thos E. Deacy, Herbert Jacob, Henderson, Deacy, Henderson & Swofford for appellant.

(1) The court erred in refusing to give Instruction B, in the nature of a demurrer to the evidence offered by defendant. Collins v. Leahy, 146 S.W.2d 609; Freed v. Mason (Mo. App.), 137 S.W.2d 673; Freeman v. Terminal R. R. Ass'n. of St. Louis, 341 Mo. 288, 107 S.W.2d 36; Tate v. Western Union Tele. Co., 339 Mo. 262, 96 S.W.2d 364; Weishaar v. K. C. Pub. Serv. Co. (Mo. App.), 128 S.W.2d 332; Carner v. St. Louis-San Francisco R. R. Co., 338 Mo. 257, 89 S.W.2d 947. The court erred in giving plaintiff's Instruction No. 1. Collins v. Leahy, 146 S.W.2d 609; Freed v. Mason (Mo. App.), 137 S.W.2d 673; Freeman v. Terminal R. R. Ass'n of St. Louis, 341 Mo. 288, 107 S.W.2d 36; Tate v. Western Union Tele. Co., 339 Mo. 262, 96 S.W.2d 364; Weishaar v. K. C. Pub. Serv. Co. (Mo. App.), 128 S.W.2d 332; Carner v. St. Louis-San Francisco R. R. Co., 338 Mo. 257, 89 S.W.2d 947; Reddy v. Joseph Garavelli, Inc., 232 Mo.App. 226, 102 S.W.2d 734. (3) The court erred in refusing to give defendant's Instruction I, which was submitted by defendant. Bank v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Perkins v. Terminal R. R. Association, 340 Mo. 868, 102 S.W.2d 915; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 563; Lotta v. K. C. Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Smithers v. Barker, 111 S.W.2d 47; McGowan v. Wells, 324 Mo. 625, 24 S.W.2d 633; Thomasson v. Henwood, 146 S.W.2d 88. (4) The court erred in refusing to sustain the objection of counsel for defendant to the remarks of plaintiff's counsel in his opening statement to the jury and erred in denying defendant's motion to discharge the jury thereafter. Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Allen v. Wilkerson (Mo. App.), 87 S.W.2d 1056; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Trent v. Lechtman Printing Co., 141 Mo.App. 437, 126 S.W. 238; Miller v. Harrison Constr. Co., 298 S.W. 259; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Page v. Unterreiner, 106 S.W.2d 528; Nolen v. Halpin-Dwyer Constr. Co., 225 Mo.App. 224, 29 S.W.2d 215; Wininger v. Bennett, 104 S.W.2d 413; Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885. (5) The court erred in permitting counsel for plaintiff, over the objection of the defendant, to inquire from the witness J. U. Scott as to his conversation with, and payment by, Mr. Sweet of the Western Casualty Co., and erred in refusing thereafter to discharge the jury, as requested by the defendant. Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Allen v. Wilkerson (Mo. App.), 87 S.W.2d 1056; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rystersky v. O'Brine, 33 5Mo. 22, 70 S.W.2d 538; Trent v. Lechtman Printing Co., 141 Mo.App. 437, 126 S.W. 238; Miller v. Harrison Const. Co., 298 S.W. 259; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Page v. Unterreiner, 106 S.W.2d 528; Nolen v. Halpin-Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215; Wininger v. Bennett, 104 S.W.2d 413; Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885.

Clay C. Rogers, Meyer & Smith and Will H. Hargus for respondent.

(1) The court properly refused defendant's Instruction "B" in the nature of a demurrer to the evidence at the close of the case. (a) Plaintiff, upon demurrer to evidence, is entitled to benefit of any and all evidence in the case, including evidence adduced by defendant as well as evidence which he himself offers, and all favorable inferences which may reasonably be drawn therefrom, which tend to support his theory of the case. Smith v. K. C. Pub. Serv. Co., 43 S.W.2d 548, 552, 328 Mo. 979; Hein v. Peabody Coal Co., 85 S.W.2d 604, 608, 337 Mo. 626; Yerger v. Smith, 89 S.W.2d 66, 70, 338 Mo. 140; Sing v. St. Louis, S. F. R. Co. (Mo.), 30 S.W.2d 37, 40. (b) In a humanitarian case, whenever a question of fact as to one of the constitutive elements exists, that average fair-minded men may differ about, then the question is for the jury. Lynch v. Baldwin (Mo.), 117 S.W.2d 273, 275. (c) All of the essential elements of a cause of action under the humanitarian rule were fully developed by the evidence. Banks v. Morris, 302 Mo. 254, 257 S.W. 482. (2) The court did not err in giving plaintiff's instruction No. 1. (3) The trial court did not commit reversible error in refusing defendant's Instruction "I." (a) The instruction is prejudicial in that it assumes as a fact that the occurrence of defendant's truck striking plaintiff was an accident. Kaley v. Huntley (Mo. App.), 88 S.W.2d 200; Walker v. Klein (Mo. App.), 127 S.W.2d 51, 55. (b) Refused defendant's Instruction "I" does not submit the issue of plaintiff walking into the path of the approaching truck. The instruction makes no reference to an approaching truck. Even if it did submit the issue of the plaintiff approaching and entering the pathway of the oncoming truck, such issue is not in the case and is not supported by any theory of the case. The instruction in inconsistent, misleading and prejudicial. Givens v. Spalding Cloak Co., 63 S.W.2d 819, 829. (c) The instruction attempts to hypothesize facts and directs a verdict but fails to hypothesize facts based on the evidence from which the jury could determine whether the peril referred to was the peril of walking into the side of the truck, as submitted in defendant's given Instruction D, or the peril of standing in the pathway of the truck for a considerable length of time while the truck was approaching, or the peril of walking into the pathway of the truck as it approached. It gives the jury a roving commission to determine when the truck driver first became charged with knowledge of plaintiff's peril. Felts v. Spesia, 61 S.W.2d 402, 404; Fenton v. Hart, 73 S.W.2d 1034, 1040; Zumwalt v. Railroad Co., 266 S.W. 717, 726; Boyer v. Baldwin et al., 106 S.W.2d 21, 24. (4) There was no error in permitting reference to be made to the fact that an insurance company was interested in the defense of the case and had employed attorneys and doctors to attend plaintiff because it was admitted by defendant's attorneys that the insurance company was the real defendant. Grindstaff v. J. Goldberg & Sons Structural Steel Company, 40 S.W.2d 702, 706; Snyder v. Wagner Electric Co., 223 S.W. 911, 918, 919.

OPINION

SHAIN, P. J.

--In this action the plaintiff seeks damages for injuries alleged as received by reason of negligence of defendant.

The first two paragraphs of plaintiff's petition state as follows:

"For his cause of action against defendant, plaintiff, states that on or about the third day of June, 1939, an agent, servant and employee of the defendant, while on and about the business of the defendant, carelessly and negligently caused, suffered and permitted a truck of the defendant, being operated by and in the exclusive possession and control of the defendant's said agent and employee, to collide with plaintiff on a public street and thoroughfare in the City of Harrisonville, Missouri, and that as a direct result thereof plaintiff sustained the injuries hereinafter set out.

"Plaintiff further states that while he was upon and attempting to cross said street the driver of said truck saw, or, by the exercise of the highest degree of care, could have seen that the plaintiff, who was oblivious to said truck's approach, was in a position of imminent peril of said truck colliding with plaintiff and the plaintiff being injured thereby, in time for said driver, thereafter, by the exercise of the highest degree of care, and with the means at hand, and with safety to the said truck and the driver thereof, and to other persons and property on said street, to have averted and prevented plaintiff's injury by stopping said truck or slackening the speed thereof, or swerving the same to one side, or sounding a warning, but said driver of said truck negligently failed to do so and thereby proximately caused plaintiff's said injuries."

Thereafter the plaintiff sets forth the nature and extent of the injuries. However, as no question of excessive verdict is presented we need not set forth as to same.

Defendant filed answer as follows:

"Comes now defendant in the above entitled cause and for his answer to the petition of plaintiff filed herein denies each and every allegation in said petition contained.

"Wherefore, having fully answered, defendant prays to be discharged with his costs.

"Defendant, for further answer, states that if plaintiff was injured at the time and place mentioned in the petition, that said injuries, if any, were directly and solely caused by the negligence and carelessness of the plaintiff in walking into the rear end of the truck of defendant.

"Wherefore having fully answered, defendant asks to be discharged with his costs."

Trial was had by jury and the jury found for plaintiff and assessed his damages at $ 5000. Judgment was in accordance with jury verdict and defendant has duly appealed.

We will continue to refer to respondent as plaintiff and to appellant as defendant.

The defendant makes seven assignments of error with supporting reasons and references to the record. However, defendant presents his case under five points wherein citation of authorities appears.

Defendant's points are as follows:

"I

"The Court erred in refusing...