Yerger v. Smith

• Decision Date: 18 December 1935
• Docket Number: 33276,33586
• Citation: 89 S.W.2d 66,338 Mo. 140
• Parties: John Yerger v. Hugh R. Smith, Cecil Clay, Reis-Moran Lumber Company, a Corporation, and Paul Reis, Appellants
• Court: Missouri Supreme Court

89 S.W.2d 66

338 Mo. 140

John Yerger v. Hugh R. Smith, Cecil Clay, Reis-Moran Lumber Company, a Corporation, and Paul Reis, Appellants

Nos. 33276, 33586

Supreme Court of Missouri

December 18, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded (with directions).

Carter & Jones and Richard S. Bull for Hugh R. Smith and Cecil Clay.

(1) The instructions in the nature of demurrers to the evidence requested by defendants Smith and Clay at the close of the entire case should have been given, because: (a) It was not negligence, as charged by plaintiff, for said defendants' mules to be ridden, even if it were dark, either (1) upon the traveled portion of the highway; (2) so as to block the traveled portion of the highway; (3) without carrying a lantern or giving a warning of their presence, or (4) as close to the right-hand of the highway as was practicable under the circumstances. Such obligations do not exist under the common law, and they are not imposed by statute. Sec 12803, R. S. 1929; 5-6 Huddy, Cyc. of Automobile Law (9 Ed.) sec. 245, p. 395; 1 Blashfield, Cyc. of Automobile Law, p 384; Berry on Automobiles (4 Ed.), secs. 184, 185; Yore v. Transfer Co., 147 Mo. 688; Roper v. Greenspon, 192 S.W. 155; Linstroth v. Peper, 188 S.W. 1127; Boyer v. North End Drayage Co., 67 S.W.2d 769; Hanna v. Butts, 14 S.W.2d 36; Myers v. Velasquez, 16 F.2d 111; Fullenwider v. Brawner, 6 S.W.2d 267; Bombard v. Newton, 111 A. 510, 11 A. L. R. 1402; Meredith v. Kidd, 147 So. 539; Pollet v. Robinson Lbr. Co., 123 So. 155; Cook v. Tooke, 135 So. 917. (b) The proximate cause of the collision, if it occurred when it was dark, was shown to have been the failure of defendant Reis to have his automobile equipped with the lights required by law, and not any assigned negligence on the part of defendants Smith and Clay. Berry on Automobiles (4 Ed.), sec. 184; 1 Blashfield, Cyc. of Automobile Law, pp. 350, 351; Sec. 7778, R. S. 1929; Lenz v. Seibert, 259 S.W. 829. (2) The trial court permitted the case to go to the jury over the objection of defendants Smith and Clay after plaintiff had failed to request instructions submitting any theory or issue upon which said defendants might be held liable, or informing the jury as to what negligence of said defendants, if any, might be considered by the jury, and there were no instructions given informing the jury what facts, if proven, would warrant the jury in returning a verdict against said defendants. As appellants here properly saved the point by objecting to such submission and in their motion for new trial, such action by the court constituted prejudicial error and requires the reversal and remand of the case. Dorman v. Ry. Co., 75 S.W.2d 854; Harlan v. Ry. Co., 73 S.W.2d 758; Young v. Wheelock, 64 S.W.2d 956; Eversole v. Railroad Co., 249 Mo. 529. (3) The amount of the verdict, $ 15,000, was grossly excessive. Plaintiff, a laborer, had been earning prior to the accident an average of $ 16 to $ 20 per week; his injuries were confined to his right arm, and while the evidence was that this arm was severely cripped and its movement and function were greatly impaired, yet some use of the arm remained. The amount of the verdict for such injuries and disability cannot be upheld. Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666; Grange v. Ry. Co., 69 S.W.2d 955; Green v. Boehm, 66 S.W.2d 570; Mahmet v. Am. Radiator Co., 294 S.W. 1014; Rose v. Ry. Co., 289 S.W. 913; Parks v. United Rys. Co., 235 S.W. 1067; Hulse v. Ry. Co., 214 S.W. 150.

Wilbur C. Schwartz, J. Edward Gragg and Morton K. Lange for Reis-Moran Lumber Company and Paul Reis.

(1) The court erred in refusing the instruction in the nature of a demurrer to the evidence offered by the defendant Reis-Moran Lumber Company at the close of plaintiff's case, and again at the close of all the evidence in the case. The evidence of plaintiff showed positively and conclusively that at the time of the occurrence mentioned in the evidence, the Chevrolet coupe was being driven by Paul Reis on a mission for his brother-in-law, Ed Fendler, which was entirely foreign to any business or connection with the Reis-Moran Lumber Company, and that defendant Paul Reis was not at the time in any wise acting in any capacity whatsoever for the Reis-Moran Lumber Company, either as its agent, servant or employee. Guthrie v. Holmes, 272 Mo. 215; Murphy v. Leffler, 327 Mo. 1244; Hayes v. Hogan, 273 Mo. 1; Horn v. Rhoads, 296 S.W. 389; State ex rel. Kurz v. Bland, 333 Mo. 941; Griffey v. Koehler, 50 S.W.2d 693; Daily v. Maxwell, 152 Mo.App. 426. (2) The verdict of $ 15,000 in favor of the plaintiff was grossly excessive, and the court erred in not granting the defendants Reis-Moran Lumber Company and Paul Reis a new trial for that reason. Jenkins v. Mo. State Life, 69 S.W. 666; Crockett v. Ry. Co., 243 S.W. 902; Rose v. Ry. Co., 289 S.W. 913; Parks v. United Rys. 235 S.W. 1067.

Gallant & Hannigan and Robert L. Aronson for respondent.

(1) The demurrers of appellants Smith and Clay were properly overruled. (a) A person must use a public highway in a manner consistent with the rights of others. Thompson v. Smith, 253 S.W. 1023; Reynolds v. Kinyon, 222 S.W. 476; Vanneman v. Walker Laundry Co., 150 S.W. 1128, 166 Mo.App. 685; Wyler v. Ratican, 150 Mo.App. 474, 131 S.W. 155. (b) The common law requiring that ordinary care be exercised for the protection of self and others in the use of a highway, it was a question for the jury whether aforesaid appellants exercised such care, under the special conditions and facts described in evidence. Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107; Hannah v. Butts, 14 S.W.2d 31; Anderson v. Dail, 21 S.W.2d 496; Bombard v. Newton, 94 Vt. 354, 111 A. 510; Fullenwider v. Brawner, 6 S.W.2d 264; Olden v. Babicora Dev. Co., 290 P. 1062; Kehr v. Snow & Palmer, 225 Ill.App. 403. (2) The failure of respondent to offer instructions on matters of liability was rendered harmless by the instructions given for the other parties. Dorman v. Ry. Co., 75 S.W.2d 854. (3) Refusal to give withdrawal instructions was harmless, in view of submission of case to jury on specific theories set forth in appellants' instructions. Dietzman v. Screw Co., 300 Mo. 196, 254 S.W. 59; Wallace v. Mfg. Co., 319 Mo. 52, 3 S.W.2d 387; Siberell v. Ry. Co., 320 Mo. 916, 9 S.W.2d 912; Gardenhire v. Railroad Co., 224 Mo.App. 586, 31 S.W.2d 113. (4) The demurrer of appellant Reis-Moran Lumber Company was rightly overruled. (a) Under the evidence, it was a jury question whether Paul Reis was acting within the scope of his employment when the collision occurred. Chambers v. Kennedy, 274 S.W. 726; Byrnes v. Poplar Bluff Prtg. Co., 74 S.W.2d 20; Wrightsman v. Glidewell, 210 Mo.App. 367, 239 S.W. 574. (b) A joint assignment of error cannot be the basis for review, unless available to both joint appellants; this joint assignment cannot be asserted by the individual Reis. Bilsky v. Sun Ins. Office, Ltd., 84 S.W.2d 175. (5) The contention that the verdict is excessive is without merit. Schroeder v. Wells, 298 S.W. 806; Mattice v. Term. Railroad Assn., 270 S.W. 306; Trowbridge v. Fleming, 269 S.W. 610; Myers v. Independence, 189 S.W. 816; Vaughan v. Ry. Co., 18 S.W.2d 62; Gordon v. Muehling Pack. Co., 328 Mo. 123, 40 S.W.2d 693; Martin v. Ry. Co., 329 Mo. 729, 46 S.W.2d 149; Radler v. Ry. Co., 330 Mo. 968, 51 S.W.2d 1011; Caldwell v. Payne, 246 S.W. 312; Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487. (a) This assignment has been abandoned by appellants Reis and Reis-Moran Lumber Company by failure to pursue same in their argument. Kennedy v. Bowling, 319 Mo. 401, 4 S.W.2d 438.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is an action for personal injury. On a jury trial plaintiff obtained a verdict and judgment against all the defendants for $ 15,000. Motions for new trial were overruled and defendants appealed. Defendants, Smith and Clay, filed joint affidavit for appeal and that appeal is No. 33276. Defendants, Reis-Moran Lumber Company and Paul Reis, filed separate affidavits for appeal and that appeal is No. 33586. Joint abstract of the record was filed. The charges of negligence against defendants, Smith and Clay, are the same, while different charges of negligence are made against defendants, Reis-Moran Lumber Company and Reis.

Plaintiff was injured October 12, 1931, while riding as a guest or passenger in an automobile owned by the lumber company and driven, at the time, by defendant, Reis. Plaintiff's injuries were caused by the automobile running against a mule on Highway No. 61 a short distance south of the city of St. Louis. The mule was owned by Smith and was, at the time, in charge of defendant Clay, Smith's agent and employee. Clay was riding one mule and had another along.

It is alleged that defendants, Smith and Clay, were negligent: (1) In riding the mules on the traveled portion of the highway while it was dark and raining and the mules could not be seen; (2) in riding the mules in such manner as to block the traveled portion of the highway when it was dark and raining (3) in riding and leading the mules on the highway when it was dark and raining without carrying a lantern or giving a warning of the presence of the mules; and (4) in not riding the mules as close to the right-hand side of the highway as was practicable under the circumstances. The petition alleges that defendants, Reis-Moran Lumber Company and Reis, were negligent: (1) In failing to sound the horn or give warning of the approach of the automobile; (2) in driving the automobile at a dangerous and excessive rate of speed and at a rate of speed so as to endanger the life, limb and property of another and more particularly plaintiff; (3) in...