Wallace v. Bounds

• Decision Date: 04 June 1963
• Docket Number: No. 2,No. 49605,49605,2
• Citation: 369 S.W.2d 138
• Parties: Walter L. WALLACE, Administrator of the Estate of Doyle L. Wallace, deceased, Appellant-Respondent, v. Ruth BOUNDS, Respondent-Appellant
• Court: Missouri Supreme Court

Page 138

369 S.W.2d 138

Walter L. WALLACE, Administrator of the Estate of Doyle L Wallace, deceased, Appellant-Respondent, v. Ruth BOUNDS, Respondent-Appellant.

No. 49605.

Supreme Court of Missouri, Division No. 2.

June 4, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 8, 1963.

Sherman Landau, St. Louis, for appellant.

Evans & Dixon, John C. Shepherd and Paul V. Gilbert, St. Louis, for respondent.

BOHLING, Commissioner.

Doyle L. Wallace sued Ruth Bounds for $17,500 for personal injuries sustained on July 27, 1960, when she drove an automobile into the rear of an automobile in which he was working. He died December 6, 1960, the result of a self-inflicted gunshot wound. Walter L. Wallace, the father of and Administrator of the Estate of Doyle L. Wallace, Deceased, was substituted as party plaintiff on February 6, 1961, and as administrator filed an amended petition in two counts. Count I was an action for $50,000 damages for personal injuries sustained by said Doyle as alleged in the original petition. Sec. 537.020. (Statutory references are to RSMo 1959, V.A.M.S.) Count II, 'in the alternative,' was a wrongful death action for $25,000 based upon the negligent acts alleged in Count I of the petition. Sec. 537.080. Plaintiff's theory under Count II appears to be that the injuries Doyle Wallace received in the accident of July 27, 1960, aggravated an existing epileptic condition and he took his life on December 6, 1960, under an irresistible impulse caused thereby. Defendant's answer to each count was a general denial. The trial resulted in a verdict and judgment for the defendant. Plaintiff contends upon his appeal that the court erred in requiring him to elect under which count he would go to the jury; in overruling his motion for a directed verdict at the close of all the evidence; in permitting defendant to inject a false issue of plaintiff's claimed incapacity to prosecute the count for wrongful death, and in giving defendant's instruction No. 2. Defendant has also appealed and questions an after-trial entry appearing in connection with the overruling of plaintiff's motion for new trial.

Plaintiff's case rests largely in the deposition of defendant, Mrs. Ruth Bounds, which he read in evidence. Mr. and Mrs. Doyle Wallace (plaintiff attacks the validity of their marriage) were living with defendant and her husband, Lonnie Bounds, in Piedmont, Missouri. Mrs. Wallace was Mrs. Bounds' niece. On July 27, 1960, a clear day, Doyle Wallace was in his Buick automobile, parked on the shoulder of the roadway (quoting plaintiff's statement) 'replacing the electrical fuse which powered the blower fan for the defroster.' He was on his back, with his head under the dashboard, and his feet up over the back of the front seat. The brakes on the Bounds Buick were bad. Only the emergency brake worked. Doyle and Bounds were going to work on the brakes that afternoon. About 1:00 p. m. defendant drove their car, in response to her husband's request to move it to a shady spot, around to the front of their house and behind the Wallace car. She could not stop the car. The brakes were bad, and the front bumper of the Bounds car struck the rear bumper of the Wallace car and moved it two or three feet forward. The collision caused Doyle's legs and feet to go up over his head and out of the door of his car. After the collision the upper part of his body was in his car and the lower part, from the waist down, was out of the car and extended to a ditch alongside the shoulder. The testimony was that no damage from the collision could be seen on the Wallace car and there was only a slight dent on the bumper of the Bounds car, 'no real damage.' Doyle was taken to the Veterans Administration Hospital at Poplar Bluff and later that afternoon he returned to the Bounds home. This was the only record that hospital had of Doyle Wallace, and his application of said date for treatment reads, so far as material here: 'Brief history. Allegedly lying on seat of a car which was struck from behind. Was thrown partially out of car. Physical, laboratory, and X-ray findings. Allegedly experiencing severe pain. No muscle spasm elicited. Small area of contusion over the back. Diagnosis, contusion of back.'

Doyle Wallace served in the Marine Corps from April 20, 1956, to March 11, 1958, when he received an honorable discharge with a service-connected disability rating of thirty per cent. His medical history shows that he was well until September, 1957, when he had an epileptic attack. He had two or three additional seizures before being hospitalized. His service health record disclosed he was hospitalized July 26, 1957, when the first attack occurred. Repeated hospitalizations show a diagnosis of epilepsy, cause undetermined.

Doyle's parents lived in St. Louis, where his father was a boilermaker for the Missouri Boiler Company. Doyle returned to his parents' home after his discharge and was a helper at the said company's plant for about two years, starting in April, 1958. His employer did not know of his condition.

Doyle returned to his parents' home from Piedmont the latter part of August, 1960. Later, he went to Chicago, and on December 6, 1960, he died from a self-inflicted gunshot wound.

A medical report, dated May 26, 1960, of the St. Louis Veterans Administration office, where Doyle Wallace was under the supervision of the Neurology Division of the Mental Hygiene Clinic from December 9, 1958, through February 17, 1960, discloses he did not report for his scheduled visit of April 20, 1960. His treatment folder was later forwarded to Chicago at his request, and the report closes with: 'Note--12/8/60 Death notice in Post Dispatch, St. Louis, indicated pt. died 6 Dec. 60.'

The court at the close of all the evidence sustained defendant's motion to require plaintiff to elect upon which count he would submit the case. Plaintiff elected to go to the jury under Count II, the wrongful death count. He claims error, stating said counts were not inconsistent and permitted a recovery for personal injuries (Count I) or a recovery for wrongful death (Count II), but not for both. He cites Civil Rule 55.12, V.A.M.R.; State ex rel. Francesconi v. Aetna Casualty & Surety Co., Mo.App., 350 S.W.2d 418, 422; Gomillia v. Missouri Pac. R. Co., Mo., 345 S.W.2d 202, 209; 71 C.J.S. Pleading Sec. 484b n. 43.

Civil Rule 55.12 authorizes parties to plead claims or defenses in the alternative. The Rule is cited in plaintiff's State ex rel. case, supra, an action founded on contract, in connection with a quotation from Lee-Schermen Realty Co. v. Rueffel, Mo.App., 176 S.W.2d 655, 657, stating it is "settled law that a count based on an express contract may be joined with a count based on quantum meruit. * * * And furthermore it has been held, that plaintiff cannot be compelled to elect on which count he will go to the jury." See also the early case of Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98, 107(II), 20 S.W. 975, 976(2), and cases cited. Plaintiff in his argument also mentions American Displays v. E. T. Swiney Motors, Mo.App., 240 S.W.2d 732, 735, and Kaiser Alum. & Chem. Sales, Inc. v. Lingle Refrig. Co., Mo.App., 350 S.W.2d 128, 132. As expressly stated in the Kaiser Alum. & Chem. Sales, Inc., case, the count on the express contract and the count in quantum meruit pleaded the same cause of action and the two theories of recovery were not inconsistent or mutually destructive. Plaintiff quotes that portion of the Gomillia case, supra, stating that a defendant is not required to elect between two defenses that are not inconsistent. (As to the differences in the situations of a plaintiff and a defendant, see Tomlin v. Alford, Mo., 351 S.W.2d 705, 710[1, 2].) His quotation from C.J.S. supra, reads: 'However, in most jurisdictions it is generally held that an election will not be compelled when a plaintiff has two or more counts on which he has a single cause of action, and there is some uncertainty as to which he will be able to establish at the trial.' But said authority also states in Sec. 485: 'Between Theories of Action * * * However, an election may be required where the theories presented are inconsistent'; and in Sec. 483: 'Inconsistency. An election may be compelled when two counts are so inconsistent that the proof of one necessarily disproves the other.'

Civil Rule 55.12 (Sec. 509.110) is a rule of pleading. Our holdings are that it is error to submit inconsistent and contradictory theories of recovery. State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1, 3[5-8]; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7, 10[3-5]; Thompson v. Gipson, Mo., 277 S.W.2d 527, 531[4, 5]; Sanders v. Carl Berry Oil Co., Mo., 359 S.W.2d 769.

At common law a party's action for personal injuries did not survive his death. Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17, 21, and cases cited. Also, at common law no civil action existed for wrongful death. Plaza Express Co., supra , case cited and Gilkeson v. Missouri Pac. Ry. Co., 222 Mo. 173, 185, 121 S.W. 138, 141, 24 L.R.A.N.S., 844, 17 Ann.Cas. 763.

The common law has been changed by statute.

Section 537.020 provides, so far as material here: 'Causes of action for personal injuries, other than those resulting in death, * * * shall survive to the personal representative of such injured party * * *.' (Italics ours.) See Laws 1955, p. 780, amending Sec. 537.020.

Section 537.080 provides, so far as material here: 'Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, * * * the person who * * * would have been liable if death had not ensued shall be liable to an action for damages * * *.' (Italics ours.) See Laws 1955, p. 778, repealing and reenacting Secs. 537.070, 537.080, 537.090 and 537.100. Now Sec. 537.080 authorizes the parties therein specified in the circumstances set forth to institute an action for wrongful death. Consult also Secs....