Wynne v. Wagoner Undertaking Co.

• Decision Date: 03 June 1918
• Citation: 204 S.W. 15,274 Mo. 593
• Parties: WYNNE v. WAGONER UNDERTAKING CO.
• Court: Missouri Supreme Court

204 S.W. 15

274 Mo. 593

WYNNE v. WAGONER UNDERTAKING CO.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Ellen A. Wynne against the Wagoner Undertaking Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Frank C. O'Malley, of St. Louis, for appellant. Arthur N. Sager, of New York City, and Robert E. Maloney and Paul U. Farley, both of St. Louis, for respondent.

WALKER, P. J.

This is an action for personal injuries alleged to have been received by plaintiff in having been run over by an automobile owned by defendant and in charge, at the time, of one of its servants engaged in the master's business.

Defendant is a corporation. On February 20, 1912, plaintiff, a young woman about 18 years of age, was en route to her home in St. Louis. The day was stormy, and a heavy snow was falling. Plaintiff had reached the intersection of Vandeventer and Laclede avenues, and was about to cross the latter, having made one or two steps from the curb for that purpose, when she was struck by defendant's automobile, which was running at the speed of about eight miles per hour.

In view of the disposition we are compelled to make of this case on account of the condition of the record, a fuller statement of the facts is not essential, except to refer to same in discussing the assignments of error, which will be done when necessary.

The errors complained of are confined to the instructions. Four of these, designated numerically, were given for the plaintiff; and six, numbered in like order, were given for the defendant. The court of its own motion gave two instructions; one, in regard to the credibility of witnesses, and the other as to a numerical verdict. The motion for a new trial in regard to these instructions is as follows:

"(7) The court misdirected the jury as to the law in the case.

"(8) The court's instructions Nos. 1, 2, 3, and 4 are wholly inconsistent with and contradictory to the instructions Nos. 5, 6, 7, 8, 9, and 10, and had a tendency to confuse and puzzle the jury.

"(9) The court improperly refused to give instructions asked for by the plaintiff as indicated in instructions Nos. 7, 8, 9, and 10 in the group of instructions marked, `Refused by the court.'

"(10) The court by the instructions expressly carried the case outside of the law, known as the `humanitarian law,' while the pleadings call for the submission of the case on that theory.

"(11) Instruction No. 5, given for and at the request of the defendant, is framed on a theory of the defendant, which was not in any way supported by the evidence, and is in direct contravention of the rule under the `humanitarian law.'"

The seventh ground of the motion is entirely too general to authorize a review of the instructions. In K. C. Disinf. & Mfg. Co. v. Bates County, 201 S. W. 93, we held an assignment of error in a motion for a new trial insufficient which provided that: "The court refused proper declarations of law offered by plaintiff." In Wampler v. Railroad, 269 Mo. 464, 190 S. W. 908, in the principal and dissenting opinions, a review of the history of section 1841, R. S. Mo. 1909, will be found, which requires motions for new trials to specify the reasons on which they are based. This case seems, from its reasoning, to hold that a general statement in a motion for a new trial as to errors in instructions is sufficient, but it will be found that the motion in that case, while general in its terms, so far as ignoring the numbers of the instructions are concerned, is specific in referring to each and all of those to which objections are interposed, and therefore it was not general in the sense in which such motions have been ruled insufficient in other cases, which is not the fact in the instant case. In Stid v. Railway Co., 236 Mo. loc. cit. 397, 139 S. W. 176, the ground of the motion for a new trial as to the instructions was that "the court erred in giving each of the instructions given at the request of the plaintiff." While this motion was in general terms, as in the Wampler Case, it was specific, in regard to each instruction...