Wallander v. Hicks, KCD

• Decision Date: 07 July 1975
• Docket Number: No. KCD,KCD
• Citation: 526 S.W.2d 848
• Parties: Sonya WALLANDER, Plaintiff-Appellant, v. John HICKS, Defendant-Respondent. 27058.
• Court: Missouri Court of Appeals

Page 848

526 S.W.2d 848

Sonya WALLANDER, Plaintiff-Appellant, v. John HICKS, Defendant-Respondent.

No. KCD 27058.

Missouri Court of Appeals, Kansas City District.

July 7, 1975.

Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.

Application to Transfer Denied Oct. 13, 1975.

Morgan M. Moulder, Camdenton, Claude T. Wood, Richland, for plaintiff-appellant.

Glenn A. Burkart, Richard E. Dorr, Mann, Walter, Burkart, Weathers & Walter, Springfield, Thomas G. Woolsey, Woolsey & Yarger, Versailles, for defendant-respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and SWOFFORD, J.

SOMERVILLE, Presiding Judge.

Plaintiff instituted an action for wrongful death (§ 537.080 et seq., RSMo 1969, V.A.M.S.) in the Circuit Court of Laclede County, Missouri, to recover damages for the death of her minor son Kevin Walters. Kevin, who was ten years old, sustained fatal injuries when struck by a motor vehicle driven by defendant. The tragic accident occurred on February 8, 1973, on City Route 66 in Lebanon, Missouri.

Plaintiff was divorced from Kevin's natural father and brought the wrongful death action in her name alone, for the use and benefit of both herself and Kevin's natural father, since the latter refused to join in the action.

The wrongful death action was tried in Morgan County, Missouri, on change of venue and submitted to the jury on two disjunctive grounds of primary negligence--(1) defendant failed to keep a careful lookout, or (2) defendant knew or by using the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, or slackened his speed, or slackened his speed and sounded a warning, but defendant failed to do so.

The jury found the issues in favor of defendant, and judgment was entered in favor of the defendant in accordance with the jury's verdict. Plaintiff timely appealed the adverse judgment, claiming the trial court erred (1) in admitting into evidence a mutual agreement effected between plaintiff and Kevin's father, approved by the appropriate court having jurisdiction, which modified the original divorce decree affecting care, custody and control of Kevin, and (2) in permitting plaintiff to be cross-examined on, and Kevin's father on direct examination to testify to, the following matters: (a) identity of the person who was supporting and had actual custody of Kevin at the time of his death, (b) identity of the person who paid Kevin's medical and burial expenses, (c) refusal of Kevin's father to join in the wrongful death action, and (d) facts surrounding the mutual agreement effecting modification of the custody provisions contained in the original divorce decree.

The multiple instances of prejudicial error claimed by plaintiff are never reached if, as contended by defendant, plaintiff failed to make a submissible case under either disjunctive submission of primary negligence heretofore iterated.

Resolvement of whether plaintiff made a prima facie case under either disjunctive submission of primary negligence relied upon is properly weighted in her favor. The evidence must be viewed in the light most favorable to plaintiff's theories of submission and she is to be accorded all reasonable inferences springing from the evidence when so viewed which aid her theories of submission. Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968); Anthony v. Morrow, 306 S.W.2d 581 (Mo.App.1957); and Graham v. Conner, 412 S.W.2d 193, 198 (Mo.App.1967). However, this court can not imagine the existence of evidence, when none in fact exists, or supply missing evidence, to flesh out an otherwise insubmissible case, nor can it spring inferences from nowhere upon which to predicate submissibility.

Turning now to the evidence, and viewing it as just mentioned, the facts leading up to Kevin's tragic and untimely demise unfold as follows. Defendant, the only eyewitness to the accident culminating in Kevin's death, was called as a witness by plaintiff. He was seventy-nine years of age and a resident of Lebanon, Missouri. On the evening of February 8, 1973, he was returning to his home in Lebanon from a business trip to Springfield, Missouri. The weather was fair, clear and dry, and he was driving a 1971 Dodge Polara which was in good mechanical condition in all respects. He was alone at the time and arrived back in Lebanon at approximately six p.m. It was dusk and beginning to get dark when he arrived back in Lebanon and he therefore had the car's headlights on, as did other motorists at the time. Upon reaching Lebanon he proceeded north on City Route 66, a two-lane blacktop road, approximately twenty feet wide, with six foot shoulders on each side, at a speed of approximately thirty miles per hour (within the posted speed limit).

Prior to the accident Kevin had been visiting in the home of Tracey Bell which was located on the east side of City Route 66. Kevin's home was on Howard Street and west of City Route 66. While Kevin was visiting in the Bell home it began to get dark and Kevin left, exiting the Bell home by way of the back door. Tracey Bell did not see the boy after he left his home until after the accident occurred.

The Bell home, which faced City Route 66, had two driveways, variously described as the first and second driveway, and the south and north driveway. The distance between the center of the south driveway and the center of the north driveway was sixty feet. The distance between the south line of the Bell property and the center of the north driveway was one hundred and fifty feet. There were a large number of trees (several of which were Cedar) located in and which 'shaded' parts of the front lawn of the Bell home. However, their location with respect to and their effect on the area where the fatal accident occurred is far from definitive.

City Route 66 where it ran in front of the Bell property, and for some distance north and south thereof, was straight and level. As defendant proceeded north on City Route 66 in the area of the Bell home, with his headlights on, he could see ahead for a distance of approximately 300 to 350 feet, and as he did so he met an oncoming vehicle which momentarily occupied his attention.

Defendant had travelled the particular route in question on prior occasions and was familiar with the fact that the Bell driveways joined City Route 66 on the east side. Evidence was also introduced that children frequently had occasion to be in the area.

According to defendant, Kevin 'jumped in front' of his car at a point near the south side of the north driveway which led to the Bell home. Defendant was looking straight ahead and did not see Kevin until the boy 'jumped in front' of his car 'from the shoulder of the driveway'. Defendant's car struck Kevin at some point in the area adjacent to the north driveway and near the center or east portion of the northbound lane of City Route 66. The evidence was cast in such generalities that it defies fixing the point of impact with any greater degree of preciseness. Defendant did not sound his horn, slacken his speed or apply his brakes before his automobile struck Kevin.

After striking Kevin, it did not take defendant 'very long' to bring his car to a stop. When his car was brought to a stop, it was headed north. Defendant then got out of his car and observed Kevin 'lying crossways in the left lane' some six or eight feet from his car. The record does not otherwise indicate where Kevin was lying with respect to defendant's car.

In order to make a submissible case against defendant for failure to keep a careful lookout, substantial evidence had to be presented to the jury from which it could reasonably find that defendant, in the exercise of the highest degree of care, could...