Williams v. Excavating & Found. Co.

• Decision Date: 07 April 1936
• Docket Number: No. 23687.,23687.
• Citation: 93 S.W.2d 123
• Parties: MYRTLE WILLIAMS AND OSCAR WILLIAMS, RESPONDENT, v. EXCAVATING AND FOUNDATION COMPANY, a CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 123

MYRTLE WILLIAMS AND OSCAR WILLIAMS, RESPONDENT, v. EXCAVATING AND FOUNDATION COMPANY, a CORPORATION, APPELLANT.

No. 23687.

St. Louis Court of Appeals. Missouri.

Opinion filed April 7, 1936.

Motion for rehearing overruled April 28, 1936.

Appeal from the Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Moser, Marsalek & Dearing for appellant.

(1) Section 3264, Revised Statutes of Missouri, 1929, providing that in assessing damages, regard may be had to the aggravating circumstances attending the wrongful act, neglect or default, permits the award of exemplary damages only where the circumstances of aggravation are pleaded and proved and an instruction permitting the jury, in awarding damages, to consider circumstances of aggravation constitutes reversible error if in fact there are no aggravating circumstances. Stoher v. Railway Co., 91 Mo. 509, l.c. 518; Boyd v. Railroad, 236 Mo. 54, l.c. 93; State ex rel. v. Ellison, 270 Mo. 645, l.c. 656; Parsons v. Mo. Pac. Ry., 94 Mo. 286; Kuehne Preserving Co. v. Allen, 148 Fed. 666; Taylor et al. v. Superior Oxy-Acetylene Co. (Mo. Sup.), 73 S.W. (2d) 186; Oliver v. Morgan (Mo. Sup.), 73 S.W. (2d) 993; Leahy v. Davis, 121 Mo. 227, l.c. 232; Goode v. Central Coal & Coke Co., 167 Mo. App. 169, l.c. 176; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535, l.c. 558. (a) The evidence wholly fails to show that the accident here involved was attended with any aggravating circumstances and the court was not warranted in submitting such an issue to the jury; therefore, plaintiffs' instruction No. V was erroneously given. Authorities, supra. (b) Instruction No. V is further erroneous in that it fails to point out to the jury the circumstances claimed to be aggravating. Rains v. Railway Co., 71 Mo. 164, l.c. 169; Parsons v. Mo. Pac. Ry. Co., 94 Mo. 286, l.c. 298; Nichols v. Winfrey, 79 Mo. 544, l.c. 553. (c) To constitute proof of aggravating circumstances under the statute, there must be a showing of willful or malicious conduct, characterized by wantonness, or such gross negligence as to indicate a conscious disregard of the rights of others, tantamount to an intent to injure. Stoher v. Railroad, supra; Parsons v. Mo. Pac. Ry., 94 Mo., l.c. 297; Boneau v. Swift & Co. (Mo. App.), 66 S.W. (2d) 172; Moore v. East St. Louis & Suburban Ry. Co. (Mo. App.), 54 S.W. (2d) 767; Fischer v. Packing Co., 77 Mo. App. 108. (d) Plaintiffs' instruction No. V is hopelessly in conflict with defendant's instruction No. X on the same subject. It also conflicts with plaintiffs' instruction IV. Irreconcilable and contradictory instructions are always reversible error. Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo., l.c. 613; State ex rel. v. Ellison, 270 Mo. 645, l.c. 656. (2) A recovery cannot be predicated on a violation of a statute or ordinance unless a causal connection be shown between the violation and the injury complained of. Inran v. Freund Bread Co., 332 Mo. 461, 468; Krelitz v. Calcaterra (Mo.), 33 S.W. (2d) 909, 911; Carle v. Akin (Mo.), 87 S.W. (2d) 406, 411; Hutchinson v. Mo. Pac. Ry., 161 Mo. 246, 253; Frigge v. Brooks, 72 S.W. (2d) 995; Harper v. St. Louis Mer. Br. Term. Co., 187 Mo. 575. (a) Plaintiffs' instruction No. 2 was erroneously given because there was no evidence that the ordinance referred to was violated. (b) Even if the ordinance had been violated, there could be no causal connection between such violation and the injury. (3) The argument of respondents' counsel, wherein he stated to the jury that appellant's officers were not in the court room and used such to persuade the jury that punitive damages should be assessed, was without evidence to support it, entirely outside the record, calculated solely to arouse passion and prejudice, and appellant's objection and motion to reprimand should have been sustained. Amsinger v. Najim (Mo.), 73 S.W. (2d) 214; Beer v. Martel, 332 Mo. 53, 55 S.W. (2d) 482, 484. (4) Under Section 3264, Revised Statutes of Missouri, 1929, where no aggravating circumstances exist and no exemplary damages may be awarded, the measure of recovery by the parents of a deceased minor child is limited to the pecuniary value of the life of such minor child during minority. Oliver v. Morgan (Mo.), 73 S.W. (2d) 993; Parsons v. Mo. Pac. Ry., 94 Mo. 286; Schaub v. Hannibal & St. J. Ry. Co., 106 Mo. 93; Crecelius v. Milwaukee Ry. Co., 284 Mo., l.c. 43-44; Barth v. K.C. El. Ry. Co., 142 Mo. 535. Under the undisputed facts in the record, the verdict is grossly excessive and the result of mistake, passion and prejudice on the part of the jury, caused by improper argument of counsel and erroneous instructions of the court. A party is absolutely bound by the evidence, oral or documentary, produced by him, where such evidence is the only evidence in the record concerning the matter. Rodan v. St. Louis Transit Co., 207 Mo. 392, 407, 408; Schroer v. Brooks, 204 Mo. App. 567, 224 S.W. 53; Spencer v. Anderson (Mo. App.), 229 S.W. 226; Manchester Bank v. Harrington (Mo.), 199 S.W. 242, 248, 249; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 260; McCord v. Durant, 134 Pa. 184, 19 Atl. 489; Burke v. Erie R. Co., 134 App. Div. 413, 119 N.Y.S. 309; Lillian Realty Co. v. Erdurm, 120 N.Y.S. 749; Holder v. Cannon Mfg. Co. (N.C.), 47 S.E. 481. The fact that this evidence is of a hearsay character and its admission could have been prevented through objection by appellant is immaterial. Hearsay testimony, admitted without objection at the trial, must be considered as part of the case and cannot be rejected on appeal. Farber v. Mo. Pac. Railroad Co., 139 Mo. 272, l.c. 284; Covell v. Western Union Telegraph Co., 164 Mo. App. 630; Milbourne v. Robison, 132 Mo. App. 198; Caris v. Nimmons & Bennett, 92 Mo. App. 66, l.c. 69.

Everett Hullverson and Robert L. Aronson for respondents.

(1) Viewed in the light most favorable to plaintiffs, the evidence was sufficient to justify an instruction to the jury that it might consider aggravating or mitigating circumstances in arriving at its verdict. Kamoss v. Ry. Co. (Mo. App.), 202 S.W. 434; Polk v. Krenning (Mo. App.), 2 S.W. (2d) 107; Treadway v. United Rys. Co., 282 S.W. 441, 300 Mo. 156; Grier v. Ry. Co., 286 Mo. 523, 228 S.W. 454; Roques v. R.R. Co. (Mo. App.), 264 S.W. 474; Bloomcamp v. Mo. Pac. R.R. Co. (Mo.), 236 S.W. 388; Calcaterra v. Iovaldi, 123 Mo. App. 347. (2) There was a causal connection between violation of the city ordinance by failure to drive as close to the right-hand curb as possible, and the injury to plaintiffs' son. Gillis v. Singer (Mo. App.), 86 S.W. (2d) 352; Willis v. Applebaum (Mo. App.), 26 S.W. (2d) 823; Smith v. Mederacke, 302 Mo. 538, 259 S.W. 83. (3) (a) It is proper to argue and comment upon the failure of a defendant or a vital witness to testify. Bobos v. Krey Packing Co. (Mo.), 19 S.W. (2d) 630; Gabelman v. Bolt (Mo.), 80 S.W. (2d) 171; Chambers v. Chambers (Mo. App.), 74 S.W. (2d) 104; Hasenjaeger v. Railroad Co. (Mo.), 53 S.W. (2d) 1083. (b) The range and latitude of argument are within the discretion of the trial court, and its judgment should not be disturbed on appeal. Crockett v. Kansas City Rys. Co. (Mo.), 243 S.W. 902; Jones v. Kansas City (Mo.), 76 S.W. (2d) 340; Miller v. Mutual Life Ins. Co. (Mo. App.), 79 S.W. (2d) 750; Waeckerley v. Colonial Baking Co. (Mo. App.), 67 S.W. (2d) 779; Tucker v. Hagan (Mo. App.), 300 S.W. 301. (4) The verdict is not excessive, as strictly compensatory for plaintiffs' pecuniary loss. Miller v. Hotel Savoy Co., 68 S.W. (2d) 929; Kemp v. Doe Run Lead Co., 57 S.W. (2d) 758; Pulsifer v. City of Albany, 47 S.W. (2d) 233; Klusman v. Harper 221 Mo. App. 1110, 298 S.W. 121; Packer v. Railway Co., 265 S.W. 119; Faulk v. Kansas City Rys. Co., 247 S.W. 253; Buchholz v. Standard Oil Co., 244 S.W. 973; Adams v. Moberly Light & Power Co., 237 S.W. 162; Ponticello v. Liliensiek, 83 S.W. (2d) 150.

BENNICK, C.

This is an action by plaintiffs, Myrtle Williams and Oscar Williams, for damages for the alleged wrongful death of their minor son, Jack Williams, who came to his death on March 3, 1933, when he was struck and run over by a truck of defendant, Excavating & Foundation Company. Tried to a jury, a verdict was returned in favor of plaintiffs, and against defendant, in the sum of $5,000; and from the judgment rendered in conformity with the verdict, defendant's appeal to this court has followed in the usual course.

The record discloses that at the time of the accident plaintiffs were living at 1029 South Thirteenth Street, in the City of St. Louis, their home being located near the middle of the block on the west side of the street, which runs north and south. The street is a narrow one, not more than twenty-five feet in width, and appears from the photographs in the case to be paved with asphalt or some other such material so as to adapt it to automobile traffic.

It seems that shortly before 10:00 o'clock on the morning of March 3, 1933, Mrs. Williams had gone to visit a neighbor who lived directly across and on the east side of the street at No. 1030, being accompanied by her son, Jack, a sturdy little fellow ten years of age, but unfortunately afflicted with epilepsy of a type which is claimed to have rendered him mentally defective, and which had prevented him from ever having gone to school. In fact he had never even learned to talk, though it would appear that by the time of his death he had reached a point where he had begun to put a few words together so that he could make himself understood, at least by the members of his immediate family.

The testimony indicates that after Jack had remained with his mother for a few minutes in the neighbor's home, he slipped out of the house, and evidently started back across the street to his own home, perhaps to assist an older brother with the dishes as it seems he was accustomed to do.

Save for the driver of the truck who was not called to testify in the case, the only eyewitness to the...