Young v. Frozen Foods Exp., Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; WOLFE, P.J., BRADY, J., and BRUCE NORMILE
• Citation: Young v. Frozen Foods Exp., Inc., 444 S.W.2d 35 (Mo. App. 1969)
• Decision Date: 15 July 1969
• Docket Number: Nos. 33176,33185,s. 33176
• Parties: Jack YOUNG, Plaintiff-Appellant and Respondent, v. FROZEN FOODS EXPRESS, INC., Defendant-Appellant and Respondent.

Page 35

444 S.W.2d 35

Jack YOUNG, Plaintiff-Appellant and Respondent, v. FROZEN FOODS EXPRESS, INC., Defendant-Appellant and Respondent.

Nos. 33176, 33185.

St. Louis Court of Appeals, Missouri.

July 15, 1969.

Bransford, Floyd & Hanses, Dempsey, Zerman & Dempsey, Clayton, for plaintiff-appellant and respondent.

Kenney, Reinert & Hespen, James A. McDowell, St. Louis, for defendant-appellant and respondent.

DOERNER, Commissioner.

In this action for damages for personal injuries resulting from a rear-end collision there was a verdict and judgment in favor of plaintiff for $5,000. The trial court overruled defendant's motion for judgment, but sustained defendant's motion for a new trial on the issue of liability only on certain specified grounds, and both parties appealed.

The evidence on behalf of plaintiff showed that on March 31, 1964 plaintiff was operating a tractor-trailer unit westwardly on Chouteau Avenue, in the City of St. Louis, and in obedience to a traffic light brought his vehicle to a stop at 39th Street. While stopped his unit was struck from the rear by a panel truck driven by Howard R. Winter, which panel truck was propelled forward about 8 feet as the result of being struck from the rear by a tractor-trailer operated by Bobby Conn. Plaintiff testified that the words 'Transcold Express' and 'Dallas, Texas' were on Conn's truck but Winter, called as a witness by plaintiff, could only recall the words 'Frozen Foods' on the truck which struck him.

In the interests of clarity we will consider the point raised in the plaintiff's appeal, and those presented in the defendant's appeal, in that order. The decisive issue in plaintiff's appeal is whether agency was a controverted or contested issue in the case. Plaintiff submitted his case by MAI 17.16, modified to cover the three-vehicle collisions, without incorporating therein the issue of agency as required by MAI 18.01, 'Where defendant master or principal is being sued and he has denied agency of the alleged servant or agent, * * *', Missouri Approved Jury Instructions, page 145. The trial court sustained defendant's motion for a new trial on the issue of liability only on two grounds: (1) plaintiff's failure to submit in his verdict directing instruction a finding of agency; and (2) plaintiff's failure to submit an appropriate definition of agency. Plaintiff asserts that agency was not a contested issue in the case, and hence that it was unnecessary to include in its verdict directing instruction a finding on that score. Defendant maintains, to the contrary, that agency was a contested issue, that the plaintiff failed to make a submissible case because the evidence failed to establish agency, and that even though agency was not a contested issue nevertheless the verdict directing instruction was erroneous because under MAI it was mandatory to include the submission of that issue.

So far as the pleadings are concerned, there can be no doubt that agency was a contested issue, for plaintiff alleged, and defendant denied, that the defendant, by and through its agent, drove and operated a tractor trailer truck into collision with Winter's truck propelling the latter into collision with the plaintiff's truck. However, prior to trial plaintiff propounded and the defendant answered written interrogatories, in part, as follows:

"1. Was defendant incorporated and a corporation on March 31, 1964?

Answer: Yes.

2. If the answer to Interrogatory No. 1 is in the affirmative, state the exact corporate title of the defendant.

Answer: Frozen Food Express, Inc.

5. Was a tractor-trailer operated by defendant involved in a multiple motor vehicle collision on March 31, 1964, at the intersection of Chouteau Avenue and 39th Street, St. Louis, Missouri, in which plaintiff, Jack Young was the operator of a truck involved in said motor vehicle collision?

Answer: Yes.

6. If the answer to the preceding interrogatory is in the affirmative, state the name and address of the driver of defendant's tractor-trailer truck involved in the occurrence of March 31, 1964, stated in plaintiff's petition.

Answer: Bobby Conn, Route No. 1, Fulton, Kentucky.

7. If the answer to Interrogatory No. 5 is in the affirmative * * *, state the type of units involved, including year, make, weight, cargo and weight of cargo.

Answer: Tractor-trailer unit, 1962 Kenworth, 13,985 pounds, 1962 Highway--14,000 pounds, cargo-none.

9. What was the destination of your vehicle at the time it was involved in the occurrence mentioned in plaintiff's Petition?

Answer: Merchant Cold Storage on Page Avenue, St. Louis, Missouri.

10. What business or objective were you engaged in at the time of said occurrence in question?

Answer: On way to pick up a load."

Defendant's entire opening statement, which had been reserved until the close of plaintiff's evidence in chief, was as follows:

'Ladies and Gentlemen: At this stage of the case the defendant puts on their evidence. Our evidence, in brief, is that the plaintiff didn't sustain the injuries he complains of and the accident didn't happen with the severity that the witnesses for the plaintiff have contended or that the plaintiff has contended that it did. In support of that we intend to put on some witnesses that were either at the scene or there shortly after the accident, and our first witness is Mr. John Hancock who was riding with the truck that was the third truck in the line of the vehicles in the collission, and I now call Mr. John Hancock.'

Hancock testified on direct examination by defendant that at the time of the collision, and at the time of the trial, he was employed by Transcold Express out of Dallas, Texas; that at the time of the collision he was the 'co-pilot' of the truck that Conn was driving; and that 'We just had come from Frozen Food Express getting a trip lease to go pick up a load of their freight to take to Dallas, Texas, I believe, or Houston, one, and we left there at their office, went to pick up this load of freight.' Concerning the occurrence, Hancock related on direct examination that both his and Conn's attention was diverted by a person changing a flat tire, and when they looked and saw the two cars parked at the red light, Conn put on his brakes but couldn't stop in time. On cross-examination Hancock stated without objection that the trip lease had been picked up from Frozen Food Express, that at the time the accident happened they were driving for Frozen Food Express as the truck was leased out to them, and that Bobby Conn was driving the truck to Frozen Food's plant to pick up an order of frozen food and to take it to Houston. Hancock also stated that Conn (who did not appear as witness) lived in Fulton, Kentucky and at the time of trial worked for a small company down there.

All of the closing arguments are included in the transcript before us. We have carefully read and re-read that of defendant's counsel, and find that all of it was devoted to the matters of the severity of the collisions, the extent of plaintiff's claimed injuries, and the amount of damages, if any, which the jury should find. Not only was there no argument made regarding the issue of Conn's relationship to the defendant or the scope of Conn's agency, but in discussing the severity of the impact of the collisions counsel for defendant stated, 'Mr. Floyd (plaintiff's counsel) has talked about the weights of the truck. There's been no evidence at all that Bobby Conn, driver of the Frozen Food's truck, the defendant's truck, was going more than twenty-five miles an hour. * * *' And in at least two other instances defendant's counsel used the phrase, '* * * when the Frozen Food truck hit the florist (Winter) truck * * *.'

The stage at which a fact material to a plaintiff's case may properly be considered as having become uncontroverted and undisputed depends upon the circumstances in each case. If the defendant admits the fact in his pleading the judicial admission not only relieves the plaintiff from adducing evidence to prove the fact, but bars the defendant from disputing it. Jenkins v. Wabash R. Co., Mo., 322 S.W.2d 788; Hogsett v. Smith, Mo.App., 229 S.W.2d 20, 21. Those authorities announce the same rule as to admissions made by defendant's counsel in open court. The incontestability of a fact may also be established by the correct use of a request for the admission of the truth of a relevant fact, Civil Rule 59.01 as amended, V.A.M.R.; Chandler v. New Moon Homes, Inc., Mo., 418 S.W.2d 130, 136; and by an order made reciting an admission made at a pre-trial conference, which order remains unmodified. Civil Rule 62.01; Wagner v. Mederacke, 354 Mo. 977, 192 S.W.2d 865. Our rules regarding pretrial discovery also provide for written interrogatories, Civil Rule 56.01, sometimes referred to as 'the poor man's deposition,' one of the purposes of which is to narrow the issues and to limit preparation and the trial to controversial issues, thereby saving trial time and expense. Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 300 S.W.2d 490, 500; State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907, 910; Pyles v. Bos Lines, Inc., Mo.App., 427 S.W.2d 790. Those cases and others (see Gibson v. Newhouse, Mo., 402 S.W.2d 324) hold that answers to interrogatories may be offered in evidence as the admissions of the party making them, but, like the answers made in a deposition, Swinger v. Bell, Mo., 373 S.W.2d 30, the party making them is not always conclusively bound by them, and as stated in Fitzpatrick (l.c. 500 of 300 S.W.2d): 'The trial court should be given a wide discretion to prevent the party propounding the interrogatory from being misled and prejudiced, as well as to protect the answering party against his own mistake or inadvertence. * * *' Admissions made in answers to interrogatories, as pointed out in Chandler v. New Moon Homes, Inc., Mo., 418 S.W.2d 130, 136 (particularly as to agency and scope of employment) can be made conclusive...