Opinion
No. 21442.
December 4, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, ALLEN C. SOUTHERN, J.
Charles L. Carr, Frank J. Rogers, Kansas City, for appellant.
Ben W. Swofford, Laurence R. Smith, and Swofford, Schroeder Shanklank, all of Kansas City, for respondent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $3,000. Defendant has appealed.
The accident involved occurred at the intersection of 14th Street and Troost Avenue, in Kansas City, Missouri. Plaintiff was a delivery salesman and at the time of the accident was driving a large loaded truck. Troost Avenue runs north and south, and 14th Street east and west. Defendant's street car, being operated south on Troost Avenue, collided violently with the truck which was being driven east on 14th Street. The case was submitted under the humanitarian doctrine. Inasmuch as defendant does not claim that plaintiff did not make a case for the jury, there is no need to set out the evidence in detail.
Defendant filed a counter-claim against plaintiff for damages to its street car, praying judgment in the amount of $383.65. And, on motion of defendant-appellant, The 7-Up Company and the Columbia Transfer Company (plaintiff's employers) were ordered into the case as additional defendants. Defendant-appellant filed its amended answer stating a cross-claim against the new defendants. Thereafter, on motion of plaintiff-respondent, defendant-appellant's cross-claim against said new defendants was dismissed by the court. The jury found the issues in favor of plaintiff upon defendant-appellant's counterclaim.
The case was twice tried. Over defendant's objections, plaintiff read in evidence a transcript of the testimony of Lee Carnes given at the first trial. Defendant's first contention is that the court erred in admitting this former testimony for the reason that no proper foundation was laid to make it admissible. At the previous trial Carnes testified that he resided at 4101 Argentine Boulevard, Kansas City, Kansas. Prior to offering the transcript, and to establish that Carnes was a non-resident and thus not subject to the jurisdiction of the court, plaintiff called to the witness stand Nolan Hepburn. Hepburn testified that two days prior to the second trial he went to the Carnes home, but found no one there. He then interviewed neighbors and ascertained from them that Carnes still resided at the above Kansas address. The following day, Hepburn, after examining the telephone directory, dialed the telephone number listed in the name of Lee Carnes at 4101 Argentine Boulevard. Hepburn then testified: "a lady answered and I asked who this was and she said it was Mrs. Carnes. I said, `Mrs. Lee Carnes?' She said, `Mrs. Lee Carnes, the wife of Mr. Lee Carnes.' And she told me that they were still living there."
In Vol. V Wigmore on Evidence, page 190, it is stated: "As evidence of the witness' death, absence, or nonabsence, replies received during the search ought to be admissible; whether or not they are testimony in themselves, they are circumstances indicating due diligence of the party seeking the witness."
Defendant cites the cases of Biggs v. Modern Woodmen of America, Mo.App., 71 S.W.2d 783 and Lynch v. Chicago Alton Ry. Co., 208 Mo. 1, 106 S.W. 68, in support of its contention. Those cases are readily distinguishable from the case at bar in that the witness involved in each case merely testified that he "had heard" that another person was dead. In neither case had the witness made an investigation of his own, and it was not shown that there was any factual substantiation of the statement.
Defendant also claims that there was no proof that the purported transcript of the testimony of Carnes was a true and correct copy of the testimony given by him at the former trial. Defendant made no objection to it on the ground that it was not authentic and thus is in no position to now complain. As we view it, the trial court committed no error in admitting the transcript.
Defendant next contends that the court erred in giving Instruction No. 1 for the reason said instruction is not supported by the evidence in that there was no testimony as to the distance in which the street car could have been stopped at the speed it was going, with safety to the passengers thereon.
It was, of course, necessary for plaintiff to prove that after his peril arose, and defendant's actual or constructive notice thereof, that defendant had the ability to avert the impending injury without injury to himself or others. Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482.
The hypothetical question put to the expert witness Carnes was: "Now taking into consideration a stream-lined 700 series street car being operated south on Troost Avenue with a seated load on temporary tracks, how far would you say, in your judgment, would it take in feet approximately to stop that street car if it were being driven at the rate of 20 to 25 miles per hour?"
It is to be noted that the question asked for the stopping distance of the street car with the assumption that there was a seated load. Furthermore, Carnes testified that he had made many emergency stops in street cars, including the stream-lined type of street car such as now involved here. He also testified that he based his estimates as to stopping distance upon his experience in stopping. Just prior to being asked the above quoted question, he stated that he had made an emergency stop with " a seated load in the street car."
The jury had ample reason to draw the inference that Carnes, in testifying as to stopping distance with a seated load, which opinion was based upon his experience in making emergency stops while operating a street car, had in mind the safety of the passengers thereon.
Another complaint lodged against this instruction by defendant is that it is "confusing and contradictory and contains an unwarranted comment favorable to plaintiff." Specifically, the criticism is directed to the fact that in its opening part the instruction requires a finding that plaintiff "was exercising ordinary care for his own safety"; and ends with the following, after directing a verdict: "And this is so even though you may find and believe from the evidence that plaintiff was himself negligent, if so, in placing himself in a position of imminent peril and danger."
As this case rested solely upon the humanitarian doctrine it was not necessary for plaintiff to prove any care on his part. Causey v. Wittig, Mo.Sup., 11 S.W.2d 11. The opening part of the instruction was error, but in defendant's favor. The closing part has been before our courts many times and has been held not to be reversible error. State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667.
Defendant also says that, as the case was submitted under the humanitarian rule, it was improper for this instruction to refer to antecedent negligence. Upon examination, we find it makes no reference to antecedent negligence to either impose or defeat liability.
Defendant likewise claims that this instruction was erroneous because it makes reference to "ordinary care" of plaintiff, whereas, under the law, plaintiff was required to exercise the "highest degree of care." The degree of care exercised by plaintiff was immaterial and thus did not result in prejudice to defendant. Byrnes v. Poplar Bluff Printing Co., Mo.Sup., 74 S.W.2d 20.
Defendant next complains of Instruction 3 "for the reason that said instruction refers the jury to the pleadings." This instruction told the jury: "If you find for the plaintiff and against the defendant upon plaintiff's petition, etc." The court gave on behalf of defendant Instruction E which said: "You are instructed that if you find for defendant on its counter-claim against plaintiff for damages to its street car you will assess defendant's damage at such amount as you find * * *".
Both Instructions 3 and E, in referring to the pleadings, merely refer to the claim which each party had against the other, and to distinguish the same. Neither referred the jury to the pleadings to ascertain what issues of fact were to be determined. Thus, no error was committed. Anderson v. Dail, 224 Mo.App. 403, 21 S.W.2d 496; Elstroth v. Karrenbrock, Mo.App., 285 S.W. 525.
Defendant says the verdict is excessive. In the determination of this question our Supreme Court has laid down the following rule: "The test is whether or not the size of the verdict is such as to shock the conscience of the court. We must accept the evidence on this question that is most favorable to the respondent." Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69, loc.cit. 75.
From that viewpoint, respondent's evidence shows the large truck in which he was riding was knocked off the track and overturned. He testified that after the crash "everything went black", his head was dizzy, and that he felt pain in his head and back. His head hit against something in the truck and his leg was bleeding. He was helped out of the truck and taken to General Hospital. There he complained about his back, his head and stomach. He received no treatment there, but was given some pills. Later in the day he was examined by his employer's physician, who taped his back and advised him to lay off work for 2 or 3 weeks. Plaintiff remained off work for at least 3 weeks. Back at work, he had difficulty in making his usual deliveries of soda pop cases and was required to use a push cart. His back gave out when he lifted. A week or two after returning to work, while lifting a bundle of empty bottles, he felt a sharp pain in his back and went to see his brother's physician. This physician, on examination, found a lumbo-sacral sprain, tenderness about the left hip, pain radiating down the left hip and back and muscle spasm. Respondent was taken to St. Joseph Hospital where he remained for 6 days. X-rays were taken which disclosed a list of the lumbar spine and a chipped fracture of the spinal vertebrae. While at the hospital, pelvis traction was applied and he was under harness and weights for 5 days. After leaving the hospital he started wearing a belt support and continued to wear it for over a year. He saw the doctor once a week for 4 or 5 months and then once a month for a year. On these occasions he was given massage, light treatments and diathermy for his back and hips. Within a year after the accident respondent resigned his job with the 7-Up Company, and subsequently had several jobs at lighter work. At one time he was off work several months for a rest. His back still bothers him, and he is not able to work as well as before the accident. The doctor testified that, in his opinion, the tilt in respondent's spine was the result of the accident and the injury to his back was permanent; that, "it will continue to give him trouble and disability and pain and discomfort."
As the many decisions say, there is no accurate scale for measuring the money value of the damages sustained in a personal injury case. Each case must be considered on its own peculiar facts. Viewing the evidence in a light most favorable to plaintiff, and the fact that the verdict met with the approval of the trial judge of vast experience, we cannot say that it is excessive.
Finally, it is asserted that the court erred in sustaining plaintiff's motion to dismiss defendant-appellant's cross-claim against defendants 7-Up Company and Columbia Transfer Company (plaintiff's employers). The only basis for appellant's claim against the 7-Up Company and the Columbia Transfer Company was that plaintiff was employed by said companies and at the time of the accident was engaged in the performance of his duties in operating the truck for them. Under the deduction which logically follows from the doctrine of respondeat superior, if there was no ground for recovery against plaintiff, the servant, there was none against his employers. State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. As heretofore stated, judgment went against appellant on its counter-claim against plaintiff-employee. Thus if any error was committed, it vanished with the jury's verdict.
Finding no error prejudicial to defendant the judgment is affirmed.
All concur.