Wilcox v. Swenson

• Decision Date: 11 May 1959
• Docket Number: No. 46683,No. 2,46683,2
• Citation: 324 S.W.2d 664
• Parties: Lillian WILCOX, Respondent, v. Harold F. SWENSON, Administrator De Bonis Non With Will Annexed of the Estate of Lenora J. Suddarth, Deceased, Appellant
• Court: Missouri Supreme Court

Page 664

324 S.W.2d 664

Lillian WILCOX, Respondent, v. Harold F. SWENSON, Administrator De Bonis Non With Will Annexed of the Estate of Lenora J. Suddarth Deceased, Appellant.

No. 46683.

Supreme Court of Missouri, Division No. 2.

May 11, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 8, 1959.

Paul C. Sprinkle, Richard P. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for appellant.

Albert J. Yonke, Kansas City, for respondent.

BOHLING, Commissioner.

Mrs. Lillian Wilcox recovered a $20,000 judgment against Harold F. Swenson, administrator of the estate of Mrs. Lenora J. Suddarth, deceased, for personal injuries sustained while riding in an automobile operated by Mrs. Suddarth which collided with the steel superstructure of a bridge in Illinois. Mrs. Suddarth died from injuries received in the accident. Respondent, who was sixty-five, sustained serious and permanent injuries. On this appeal the administrator questions the submissibility of respondent's case, the competency of certain witnesses, and the correctness of certain instructions.

The issue of the submissibility of respondent's case calls for a consideration of the evidence most favorable to respondent.

Mrs. Suddarth, Mrs. Wilcox, in the front seat, Mrs. Clara Creamer and Mrs. Pearl Scott in the rear seat, were en route from Kansas City, Missouri, where the ladies lived, to Toronto, Canada, a distance of approximately 1,100 miles, to attend a church convention. Mrs. Creamer has an action pending for injuries sustained in this accident and appellant states in his brief that Mrs. Scott also has an action pending for her injuries.

The testimony was that Mrs. Suddarth's Chevrolet was in good condition, including its steering mechanism and brakes.

Mrs. Clara Creamer testified she was the last of the three ladies to decide to make the trip in Mrs. Suddarth's automobile. She called at Mrs. Suddarth's home and Mrs. Suddarth informed her she had made arrangements for Mrs. Wilcox and Mrs. Scott to pay her $30 each for the one-way trip from Kansas City to Toronto; that she had arrived at the $30 charge after considering the mileage and cost of operation in making the trip to Toronto. They had discussed returning via New England and the price for the return trip was to be agreed to later. She stated it was understood when they were ready to start that the other ladies would assist Mrs. Suddarth with the driving.

Mrs. Pearl Scott testified by deposition. She discussed the trip with Mrs. Suddarth. She first met Mrs. Wilcox and Mrs. Creamer on the morning of departure and had not discussed the trip with either of them. She testified Mrs. Suddarth informed her Mrs. Wilcox and Mrs. Creamer thought $30 would be a fair charge for the one-way trip to Toronto; that they were to discuss the return trip later, and that the $30 was to be full payment for the trip to Toronto

The ladies left Kansas City about 7:30 a. m., August 13, 1955, a 'beautiful day.' Mrs. Suddarth picked up Mrs. Scott, Mrs. Creamer and Mrs. Wilcox in that order. When Mrs. Wilcox came to the car Mrs. Suddarth said: 'Let's get this money situation straightened out,' and each lady paid her $30. Mrs. Wilcox suggested they take a certain route. Mrs. Suddarth stated she was driving her car, thought they should take the route she desired, and she did so. The testimony was that neither Mrs. Wilcox, Mrs. Creamer nor Mrs. Scott had any control over the automobile, the manner of its operation, its speed or where Mrs. Suddarth stopped the car.

Mrs. Suddarth drove to Moberly, where the ladies had lunch, and then to Hannibal. Mrs. Creamer testified that at Moberly Mrs. suddarth began to show she was tired and she asked Mrs. Suddarth if she might drive for awhile. Mrs. Suddarth replied that she was all right and thought she could drive all day. Mrs. Suddarth permitted the Chevrolet to run off the pavement several times between Moberly and Hannibal; Mrs. Creamer imagined, when pressed on cross-examination, as many as 'a dozen times.'

After crossing the bridge at Hannibal Mrs. Suddarth drove east over Highway 36, a two-lane concrete highway, 18 feet wide, running through flat bottom land. She drove off the concrete onto the shoulder and Mrs. Wilcox said: 'You better let me take the wheel.' Mrs. Suddarth replied that she had driven a long ways and might be a little tired, but felt she could make it to Springfield, Illinois. She drove off the concrete four or five times more, and Mrs. Creamer said: 'lenora, either let Lillie [Mrs. Wilcox] or me drive.' Mrs. Suddarth replied: 'No. I will drive on in as far as Springfield before I quit.'

About 3:00 p. m. Mrs. Suddarth drove the Chevrolet into the south steel superstructure of a drainage ditch bridge approximately 5 miles east of Hannibal. The bridge has a concrete floor 21 feet wide, with the steel superstructure abutting the flooring. The highway extends practically straight east but as it nears the bridge has a sweeping curve to the north, about 3/10 of a mile long. It is then straight for 'a good block' before coming to the bridge. The shoulder, which had bituminous aprons slanting away from the concrete, was somewhat lower than the pavement.

Mrs. Suddarth was driving about 50 m. p. h. and drove off the concrete onto the south shoulder with both wheels when within about a block and a half of the bridge. Mrs. Creamer testified she felt the car drop down; that Mrs. Suddarth stepped on the accelerator (witness could feel the speed of the Chevrolet increase), whirled the wheel to the left, went over across the highway, then swerved back on the south side of the road, and then swerved the other way, witness could not say how many times she swerved back and forth; that the Chevrolet then went off the concrete on the south side and struck the bridge head-on, and that there was no traffic at the time interfering with Mrs. Suddarth's operation of the Chevrolet. Mrs. Scott gave corroborating testimony, stating Mrs. Suddarth asked: 'What did I hit?' Mrs. Scott estimated their speed at the time of the collision at 60 m. p. h. or a little more, and Mrs. Creamer placed it at 60 to 70 m. p. h. The exhibits disclose that the chevrolet struck the steel superstructure head-on at a point to the left of the center of the Chevrolet.

Appellant contends Mrs. Creamer and Mrs. Scott were incompetent witnesses 'since they were parties to a contract with the deceased defendant along with plaintiff herein with respect to the arrangements for transportation.' The contention is based on and appellant quotes the following from § 491.010 (statutory references are to RSMo 1949 and V.A.M.S. unless otherwise noted): '* * * that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, * * * the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided * * *.'

Bernblum v. Travelers Ins. Co., Banc, 340 Mo. 1217, 105 S.W.2d 941, 945, states 'that the statute was intended to be a qualifying and not a disqualifying statute, except where it adds a new specific disqualification of its own.' Allen Estate Ass'n v. Fred Boeke & Son, 300 Mo. 575, 254 S.W. 858, 865.

As developed hereinafter, the cases stressed by appellant are distinguishable on the facts. In Vigeant v. Fidelity Nat. Bk. & Trs. Co., 239 Mo.App. 46, 188 S.W.2d 533, 537, the agent making the contract for the corporate defendant died. In Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 19[8, 9], the contract was effected solely by the co-contractor who died. In Allen v. Jessup, Mo., 192 S.W. 720, 722[4, 8], the husband, claiming to act for his wife, had a present, actual, vested interest in the matter and came within § 491.010. Appellant also quotes §§ 386 and 390 of Greenleaf on Evidence from Wagner v. Binder, Mo., 187 S.W. 1128, 1151[17, 18]. Wagner v. Binder (1152, 1155) held an agent of the plaintiff was not disqualified as a witness by the death of a defendant.

Snider v. McAtee, Mo., 178 S.W. 484, approving 165 Mo.App. 260, 147 S.W. 136, involved the purchase of 65 shares of stock by John A. Snider, Blucher Sperling and B. S. Schwab from Hugh R. Quinn, who died prior to trial. Plaintiff purchased 22, Schwab 20, and Sperling 23 shares. Later, they learned that Quinn had misrepresented the value of the stock, and Quinn agreed to return to each the difference between the actual value and the purchase price. The purchasers filed claims against Quinn's estate. In holding Sperling was a competent witness to establish Snider's claim, the court stated (178 S.W. loc. cit. 488[2, 3]): 'We have reached the conclusion that the witness was not a party to the contract or cause of action in issue and on trial in this case. The evidence shows that all of the three purchasers were present in the bank at the time Quinn sold the 65 shares of stock. But it appears, we think, clearly, from the evidence, that, before the sale was made, each purchaser, for himself, decided upon the number of shares he would purchase. The transfer of the stock was made separately to each individual purchaser, and each purchaser respectively paid Quinn for the shares so purchased. * * * It may be true that he then was, and now is, an interested witness, yet interest alone would not disqualify him from testifying in the case.' See also Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875; Martin v. Abernathy, 220 Mo.App. 76, 278 S.W. 1050[3-5].

In Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, plaintiff, riding in an automobile operated by defendant Sims, was injured when it collided with a truck owned by defenda...