Yates v. Manchester

Decision Date14 February 1949
Docket Number40883
Citation217 S.W.2d 541,358 Mo. 894
PartiesHazel Yates, Respondent, v. Lawrence C. Manchester and Willie Mitchell, doing business as Mitchell Cab Company, Appellants
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Reversed and remanded.

William P. Nolan, James E. Garstang, Jr., and C. Lawrence Mueller for appellant Manchester.

(1) The giving of Instruction 1, by which a verdict was authorized against appellant Manchester, was erroneous in that it assumes facts it should hypothesize, it generally submitted the issues to the jury without a guide of determining facts necessarily to be found, it permitted the jury to guess and to speculate as to what facts, if found, would support submitted bases of recovery and it failed to require the jury to find that the submitted negligence was the direct and proximate cause of the collision. The court, therefore, erred in giving said instruction. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; State ex rel. Berger v Trimble, 331 Mo. 748, 55 S.W.2d 422; McCombs v Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Schimmelpfenning v. Wells, 24 S.W.2d 154; Alexander v. Hoenshell, 66 S.W.2d 164; Eudy v. Federal Lead Co., 220 S.W. 504; Hengelsberg v. Cushing, 51 S.W.2d 187. (2) Under the law of this state, when the issues were submitted to the jury with multiple assignments of negligence and when said assignments are submitted in the disjunctive, the evidence must support each of the assignments and proximate cause must be found in each assignment. If there is a lack of evidence as to any one of the grounds of recovery submitted in the instruction or if the requirements of the law dealing with causation can not be met in any one of the grounds submitted, then it is erroneous so to submit the cause, and this error occurred in the giving, by the court, of plaintiff's Instruction 1. Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Whitehead v. Fogelman, 44 S.W.2d 261; Carlisle v. Tilghmon, 159 S.W.2d 663; Warner v. St. Louis & M.R.R. Co., 178 Mo. 125, 77 S.W. 67; Rosenkoetter v. Fleer, 155 S.W.2d 157; Krelitz v. Calcaterra, 33 S.W.2d 909; Borrini v. Pevely Dairy Co., 183 S.W.2d 839.

John A. Davis and Henry D. Espy for appellant Mitchell; Orville Richardson of counsel.

(1) The court erred in giving Instruction 2 for plaintiff. This instruction erroneously submitted in the disjunctive a charge of excessive speed without support in evidence. Rosenkoetter v. Fleer, 155 S.W.2d 157. (2) It is error to give an instruction not supported by the evidence, since it invites a verdict based upon speculation. State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835. (3) A disjunctive submission of an unproven act of negligence constitutes reversible error. Rhineberger v. Thompson, 6 Mo. 520, 202 S.W.2d 64; Hutchison v. Thompson, 175 S.W.2d 903; Whitehead v. Fogelman, 44 S.W.2d 261. (4) The form of the instruction was erroneous. It was too general, failed to inform the jury of fact issues necessary to a verdict, and authorized the jury to speculate upon unknown and undefined facts unrelated to "control" or any other pleaded or proven act of negligence. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. (5) Instruction 2 erroneously submitted the disjunctive charge of failure to drive as close to the right-hand side of Whittier as practicable when there was no showing that such failure, if any, was a proximate cause of the collision. Lowry v. Mohn, 195 S.W.2d 652; Iman v. Walter Freund Bread Co., 322 Mo. 461, 58 S.W.2d 477; Krelitz v. Calcaterra, 33 S.W.2d 909. (6) An instruction which in the disjunctive submits a negligent act having no causal connection with the injury is erroneous. Carlisle v. Tilghmon, 159 S.W.2d 663. (7) The court erred in giving Instruction 6 for defendant Manchester and Instruction 3 for plaintiff. Defendant is entitled to complain of Instruction 6 since it affects his liability to plaintiff. Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; State ex rel. Nevins v. Hughes, 347 Mo. 908, 149 S.W.2d 836; Borman v. Moore, 237 Mo.App. 1163, 167 S.W.2d 675. (8) Instructions 3 and 6 erroneously submitted a disjunctive charge of negligent speed without foundation in evidence. Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (9) Instructions 3 and 6 erroneously submitted the disjunctive charge of a failure to keep a lookout (1) although abandoned against Mitchell by plaintiff, and (2) without support in evidence. Berry v. Kansas City Public Serv. Co., 341 Mo. 658, 108 S.W.2d 98; Bowman v. Moore, 237 Mo.App. 1163, 167 S.W.2d 675; Carle v. Akin, 87 S.W.2d 406. (10) Instructions 3 and 6 erroneously submitted in the disjunctive an incomplete charge of negligence in driving on the left side of Whittier while passing cars stopped at the intersection. The instruction failed to submit enough facts to warrant a finding of negligence. Melber v. Yourtee, 203 S.W.2d 727; Teague v. Plaza Express Co., 205 S.W.2d 563; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. (11) Instructions 3 and 6 erroneously submitted in the disjunctive a failure to yield the right-of-way (1) without foundation and evidence, and (2) without authorizing the jury to consider facts and circumstances bearing upon or modifying the duty, if any, to yield a right-of-way. McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Hammond v. Emery-Bird-Thayer Dry Goods Co., 240 S.W. 170; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97; Brooks v. Menaugh, 284 S.W. 803; Parsons v. Hemmelsbach, 68 S.W.2d 841; Bramblett v. Harlow, 75 S.W.2d 626; Schneider v. Hawks, 211 S.W. 681; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; Howard & Brown Realty Co. v. Berman, 212 Mo.App. 401, 245 S.W. 606.

James A. Riley and Roy E. Gardner for respondent Yates.

(1) There can be no criticism of the alternative or disjunctive form of instruction if there is evidence to support each negligent act hypothesized and they are in harmony. Robertson v. Scoggins, 73 S.W.2d 430; Whitehead v. Fogelman, 44 S.W.2d 261. (2) Appellant will not be heard to complain of an error or omission in respondent's instruction which is common to his own. Carson v. Evans, 173 S.W.2d 30; Roeslein v. Chicago & E.I.R. Co., 214 S.W.2d 13; Varley v. Columbia Taxicab Co., 240 S.W. 218. (3) It has been held that failure to have vehicle under control so that it could be stopped and prevent collision was not general negligence and did not give the jury a roving commission. Minnis v. William J. Lemp Brewing Co., 226 S.W. 999. (4) That the frequent use of such terms as "if so," "if you so find," and "if any" used in instructions is not necessary and tends only to confuse. White v. Kansas City Public Serv. Co., 149 S.W.2d 375. (5) That allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial, except when deemed proper to prevent manifest injustice; and that no appellate court should reverse any judgment unless it believes error was committed by the trial court against the appellant and materially affecting the merits of the action. Johnson v. Kansas City Public Serv. Co., 214 S.W.2d 5; Supreme Court Rules 3.23, 3.27; New Code of Civil Procedure, Sec. 140 (b). (6) That failure to comply with statute when operating a motor vehicle is negligence per se. Benoist v. Driveway Co. of Missouri, 122 S.W.2d 86; Swain v. Anders, 163 S.W.2d 1045. (7) That witness was in position to hear warning signal and did not hear it is substantial evidence that none was given. Bulkley v. Thompson, 211 S.W.2d 83; Knorp v. Thompson, 212 S.W.2d 584.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

Action for damages for personal injuries sustained by plaintiff when the taxicab of defendant Mitchell, in which plaintiff was riding as a passenger, was struck on the right rear side by an automobile operated by defendant Manchester. The collision occurred at the intersection of Whittier street and Cook avenue in the City of St. Louis, on May 20, 1947, during a rainstorm. Plaintiff charged that the collision and resulting injuries were due to the negligent operation of the motor vehicles involved. Specific charges of negligence were made against each defendant. Verdict and judgment were for plaintiff for $ 10,000 against both defendants and they have appealed.

Appellant Manchester contends (1) that the court erred in giving plaintiff's instruction 1; (2) that appellant was deprived of a fair and unbiased jury by the misconduct of juror Dillon; and (3) that the verdict is excessive. Appellant Mitchell contends (1) that the court erred in giving plaintiff's instructions 2 and 3 and defendant Manchester's instruction 6; and (2) that the verdict is excessive. Neither appellant has assigned error on the submission of the cause to the jury and, in view of the conclusions reached on the assignments made, it will not be necessary to make a more detailed statement of the facts shown by the evidence.

The negligence submitted against defendant Manchester appears from plaintiff's instruction 1, as follows: " that if you find and believe from the evidence in this case that the defendant, Lawrence C. Manchester, drove and operated his said automobile east on Cook avenue at the time in question at an excessive and dangerous rate of speed under the circumstances which endangered the life and limb of plaintiff and in so doing was negligent, or that he failed and neglected to have his said automobile under such control that it could be readily and easily stopped on the appearance of danger and in so failing was negligent, or that he...

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5 cases
  • Counts v. Thompson
    • United States
    • Missouri Supreme Court
    • July 11, 1949
    ...found, was a duty owing to respondent. An instruction giving the jury such a roving commission is reversibly erroneous. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (20) And it erroneously authorized a recovery on the basis hypothesized violations of the hypothesized "duty" whether or ......
  • Knight v. Richey
    • United States
    • Missouri Supreme Court
    • July 14, 1952
    ...instruction, a verdict-directing instruction, is clearly erroneous for lack of 'proper factual hypothesization,' citing Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366; and Fantin v. L. W. Hays, Inc., Mo.Sup., 242 S.W.2d 509. In the instant ca......
  • Sundermeyer v. Lentz, 50346
    • United States
    • Missouri Supreme Court
    • December 14, 1964
    ...he stopped his automobile. In Hooper v. Conrad, supra, loc. cit. 260 S.W.2d 500, the quote is made, "The Yates case (Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541) and cases following the Yates case are not to be read or construed as requiring the submission of facts which are not necess......
  • Clark v. Portman, 23465
    • United States
    • Missouri Court of Appeals
    • April 2, 1962
    ...of Asher v. Griffin, 342 S.W.2d 255, 259, the St. Louis Court of Appeals refers to the Hooper case and its predecessors, Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972 and Kick v. Franklin, 342 Mo. 715, 117 S.W. 284, and says: 'The above case......
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