Watkins v. Spears Ship by Truck

• Decision Date: 11 June 1934
• Docket Number: No. 18041.,18041.
• Citation: 72 S.W.2d 818
• Parties: WATKINS v. SPEARS SHIP BY TRUCK, Inc., et al.
• Court: Missouri Court of Appeals

72 S.W.2d 818

WATKINS v. SPEARS SHIP BY TRUCK, Inc., et al.

No. 18041.

Kansas City Court of Appeals. Missouri.

June 11, 1934.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

Action by Cynthia Watkins against the Spears Ship By Truck, Inc., and another. Judgment for plaintiff, and defendants appeal.

Affirmed if plaintiff files remittitur, and otherwise reversed and cause remanded.

Roy D. Williams, of Boonville, and James D. Reeves, of Kansas City, for appellants.

Daniel C. Rogers, of Fayette, for respondent.

SHAIN, Presiding Judge.

Cynthia Watkins, respondent herein, but plaintiff below and hereinafter referred to as plaintiff, seeks in this action to recover damages, actual and punitive, from Spears Ship By Truck, Inc., and E. A. Steele, alleged as the corporation's agent and employee, appellants herein but hereinafter referred to as defendants.

The plaintiff alleges that, while an occupant of an automobile being driven eastward on Highway No. 40 on the right side of the roadway on the east end of the highway bridge crossing the Missouri river from Boonville, Cooper county, Mo., to Howard county, Mo., the car in which she was situate was run into and struck by a truck alleged as the truck of the defendant corporation, being run and operated by defendant Steele, as an agent and employee of the said corporation.

The plaintiff alleges, and it appears to be a fact, that the defendant corporation had a certificate of convenience and necessity to engage in the trucking and shipping business upon certain highways of Missouri, Federal Highway No. 40 included.

After alleging Steele to be an agent and servant of the corporation in operating the truck in question, the plaintiff pleads, as follows:

"Plaintiff for her cause of action states that on or about the 22nd day of August, 1932, about 6 o'clock in the afternoon, she was riding from Cooper County into Howard County across the Boonville bridge on Federal Highway No. 40 in a Model A Ford sedan then owned and operated by her husband, James Watkins of New Franklin, Missouri, and that as the car in which she was riding reached a point in Howard County near the Howard County end of the Boonville bridge aforesaid, and while it was being operated with the highest degree of care, and while she was exercising ordinary care for her own safety, the driver of the truck, E. A. Steele, without signal or warning of any kind, willfully and wantonly, and in total disregard of the safety of the person or property of others did, suddenly and wantonly, drive his truck to the left-hand side of an automobile in front of him and which was going in the same direction, to-wit, towards Boonville, and attempted to pass said other automobile in front of him at a time and place when it was impossible to do so on account of the approaching nearness of the car in which plaintiff was riding in the opposite direction; plaintiff further states that while the driver of said truck was attempting to pass the car in front of him, he met the car in which plaintiff was riding immediately in front of him, and ran said truck violently, willfully and wantonly into the side and front of the Ford sedan in which the plaintiff was riding."

Plaintiff duly pleads her alleged injuries as due to the alleged negligence of defendants. As to her injuries, the plaintiff pleads, as follows:

"She was bruised, contused and sprained over her entire body, and suffered a severe physical and mental shock; a piece of bone was slivered off of her right knee, which thereupon became and still remains a floating bone in the flesh near the kneecap; her right kneecap was badly bruised, wrenched and sprained, as were also the other bones of her right knee and leg; her throat was violently struck against a part of the car at the time of the wreck, causing it to be badly bruised and contused, and causing plaintiff to suffer frequent pains in the throat and spells of severe throat irritation."

Plaintiff pleads both mental and physical pain and pleads the results of injury as permanent. The plaintiff, pleading willful and wanton acts of defendants as causing her injury, asks for punitive damages.

The defendants join issue by plea of general denial.

Evidence was offered by plaintiff to sustain the allegations of her petition. At the close of plaintiff's evidence, defendants rested their case without introduction of testimony.

Trial was by jury and the jury found the issues for the plaintiff and assessed the actual damages at $4,500 and assessed punitive damages against defendants at $100. Judgment was entered in accordance with the jury verdict, and the defendants appeal.

The defendants assign errors, as follows:

"I. The appellants stood on their demurrers to the evidence. The respondent failed to make out a case of willfulness and wantonness as alleged in her petition, and defendants' instructions 1 and 2 should have been given.

"II. In view of the allegation in the petition that the injury was willfully inflicted, Instruction 7 requested by defendants should have been given. Instruction 7 was to the effect that the jury must find that defendant intentionally struck the car in which plaintiff was riding. Or, if not given, Instructions 3 and 4 should have been given.

"III. There is no evidence which will support an instruction authorizing punitive damages, an instruction given at plaintiff's request.

"IV. The court erred in giving Instruction B at plaintiff's request, because there is not enough evidence of permanent injury to support the part of said instruction authorizing the jury to find permanent injuries as an element of damages.

"V. The verdict is excessive and the result of passion and prejudice. The verdict is excessive because of the erroneous instruction under Point IV. And because of improper voluntary statements of plaintiff's witnesses tending to show intoxication of defendant driver and that there was an insurance company interested in the case."

Defendants' assignment of errors are in fault as to being too general and not specific as to assignment of reason or reference to record. However, the abstract propositions appear more specific in points and authorities and argument, as presented in the brief, and we go to these as a basis for our consideration.

The defendants complain of refusal of instructions No. I and No. II. These are peremptory instructions, No. I as to the...