Opinion
No. 43191.
July 13, 1953.
Wrongful death of pedestrian. A companion case to Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496. The instructions hypothesized sufficient facts. The verdict was not excessive.
1. NEGLIGENCE: Motor Vehicles: Collision at Highway Intersection: Pedestrian Killed on Highway Shoulder: Instructions Hypothesize Sufficient Facts. The instructions hypothesize sufficient facts.
2. DAMAGES: Death of Child: Verdict Not Excessive. A verdict of $9,500 for the wrongful death of plaintiffs' eleven year old daughter was not excessive.
Appeal from Butler Circuit Court; Hon. Randolph H. Weber, Judge.
AFFIRMED.
Dalton, Treasure Dalton, John M. Dalton, Harold B. Treasure and John Hall Dalton for Albert James and J.W. Trammel, appellants.
(1) Instruction I given at the request of plaintiffs is erroneous in failing to hypothesize the requisite facts for the determination of issues by the jury. Yates v. Manchester, 217 S.W.2d 541; Dahlen v. Wright, 235 S.W.2d 366; Carson v. Evans, 173 S.W.2d 30; Ferdent v. St. Louis Pub. Serv. Co., 247 S.W.2d 773; Wright v. Osburn, 201 S.W.2d 935. (2) The uncontroverted facts show conclusively that Albert James was an independent contractor. Ross v. St. Louis Dairy Co., 98 S.W.2d 717; Skidmore v. Haggard, 110 S.W.2d 726; State ex rel. Chapman v. Shain, 147 S.W.2d 457; O'Brien v. Rindskopf, 70 S.W.2d 1085; Clayton v. Wells, 26 S.W.2d 969. (3) The verdict is excessive as a matter of law. Marx v. Parks, 39 S.W.2d 570; Smyth v. Hertz Drive-ur-Self, 93 S.W.2d 56; Williams v. Excavating Foundation Co., 93 S.W.2d 123; Wright v. Osburn, 201 S.W.2d 935; Chap. 537, RSMo 1949.
Ward Reeves for Blanche Conrad, appellant.
(1) Instruction 2 for plaintiffs was too general, indefinite, misleading and confusing, in submitting the issue of negligence to the jury. It did not submit the essential and necessary facts constituting negligence and submitted mere conclusions and questions of law. Rayburn v. Fricke, 243 S.W.2d 768; Stakelback v. Neff, 13 S.W.2d 575; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Watson v. Long, 221 S.W.2d 967; Barnes v. Vandergrift, 238 S.W.2d 439. (2) In connection with this first submission in Instruction 2, the instruction is too indefinite, misleading and confusing because of the use of the words "directly in front of a tractor and trailer truck," because there is no submission for the determination of the jury whether it is meant "closely" or "immediately" in front, nor is any such word as "suddenly" used in connection with the clause in the instruction. No proper guide was given the jury. Fantin v. L.W. Hayes, Inc., 242 S.W.2d 509. (3) No facts or designated circumstances are submitted to the jury in connection with the failure to keep a lookout or the failure to have the pickup truck under control, which if found by the jury, would make such failure actionable negligence. Ferdente v. St. Louis Pub. Serv. Co., 247 S.W.2d 773; See cases, supra, under (1). (4) The second submission above mentioned is also erroneous because it did not require the jury to find that failure to keep a lookout under the circumstances was negligent. The mere failure to keep a lookout is not negligence per se. Watson v. Long, supra, l.c. 970. (5) We believe that the manner of submission in this instruction comes under the rule preventing the submission of both general and specific negligence as held by our appellate courts in recent cases. Watson v. Long, 221 S.W.2d 967; Fuller v. St. Louis Pub. Serv. Co., 245 S.W.2d 675. (6) We have the exact situation here with reference to Instruction 4 that existed with respect to Instruction 3 in the case of Yates v. Manchester, cited below. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (7) Instruction 7 on behalf of defendants James and Trammel is erroneous because it placed an unqualified duty on Mrs. Conrad to stop or sound a warning, without further submitting to the jury all essential facts constituting negligence. It failed to require a finding that the collision was imminent or that there was imminent peril or danger before requiring defendant to stop or warn, and it did not require a finding that Mrs. Conrad saw or could have seen that the tractor trailer was in such position of imminent peril. The instruction therefore gave the jury a roving commission. Rayburn v. Fricke, 243 S.W.2d 768; Stakelback v. Neff, 13 S.W.2d 575; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (8) Instruction 7 is also erroneous because there are no facts developed in this case authorizing a sole cause instruction. Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 774; Hillis v. Home Owners Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (9) Instruction 22 was erroneous because there was no evidence in the case to authorize a sole cause instruction, as pointed out and shown in the last paragraph. (10) The errors we have pointed out in Instructions 7 and 22 given on behalf of James and Trammel, affect the question of defendant Conrad's liability to the plaintiffs and prejudices her interests. She can therefore complain of such instructions given on behalf of her codefendants. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767; Kelly v. Laclede Real Estate Inv. Co., 348 Mo. 407, 155 S.W.2d 90; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836; O'Donnell v. St. Louis Pub. Serv. Co., 246 S.W.2d 539; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (11) The judgment in this case for $9,500 for the loss of the services of plaintiffs' 11-year-old daughter, is grossly excessive and indicates bias, passion and prejudice against defendants and in favor of the plaintiffs. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935.
McHancy McHancy for respondents.
(1) Plaintiff's Instruction I, after first detailing the facts and circumstances surrounding the collision, submitted conjunctively the negligent failure of defendant James to keep a lookout for vehicles along and upon said highway and approaching the same, and the negligent operation of the tractor and trailer truck without adequate and sufficient brakes. Being submitted in the conjunctive, if either of these negligent acts alone is a sufficient submission of negligence, it is immaterial that the other act specified may be technically defective. Fantin v. L.W. Harp, Inc., 242 S.W.2d 509. (2) The first charge of negligence in the instruction, i.e., "failure to keep a lookout for vehicles along and upon said highway and approaching the same", is not too general and does not fail to hypothesize the requisite facts necessary to guide the jury under the circumstances of this case. Fortner v. St. Louis Pub. Serv. Co., 244 S.W.2d 10: Spencer v. Kansas City Pub. Serv. Co., 250 S.W.2d 187; Riley v. Young, 218 S.W.2d 805; Nelson v. Evans, 93 S.W.2d 691. (3) It is admitted by defendant Albert James, the driver of the tractor truck, that, although he had a clear and unobstructed view to the south for more than 100 feet down the road traveled by defendant Conrad, that he did not maintain any lookout laterally down that road and did not see her approaching the intersection until she entered upon the highway. Under Instruction I the jury was required to find that defendant James failed to maintain a lookout (which he admitted), and that said failure was negligent, and that it was the proximate cause of the injuries suffered by plaintiff. The instruction was more favorable to defendants James and Trammel than they were entitled, in that the failure to maintain a lookout under these circumstances was negligent as a matter of law. Wilkins v. Stuecken, 225 S.W.2d 131; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023; Van Sickle v. F.M. Stamper Co., 198 S.W.2d 539. (4) The second charge of negligence concerned the failure of defendant Albert James to have adequate and sufficient brakes on his tractor and trailer, and was more favorable to defendants James and Trammel than they were entitled. Under the admitted facts of this case the negligent specification was not too general, and, in any event, the defendants James and Trammel were guilty of negligence as a matter of law under their own admissions. Sams v. Adams Transfer Storage Co., 234 S.W.2d 593; Sec. 304.560 (3), RSMo 1949. (5) The rule announced in the Yates v. Manchester case has no application where there is no real difference in the factual theories of the parties and where the circumstances surrounding the accident are not in dispute. Minute hypothesis of undisputed and admitted facts has never been required. Such error, if any, could not be prejudicial to the defendants. Knight v. Richey, 250 S.W.2d 972. (6) Plaintiff's Instruction II properly submitted the negligence of defendant Conrad. If the court should construe Instruction II as submitting three acts of negligence, namely (1) driving "directly in front of a tractor and trailer truck operated by defendant Albert James causing the collision therewith," (2) "failed to keep a lookout for vehicles and persons upon said highway," (3) "failed to have said pick-up under proper control under the circumstances there existing," it is, in any event, sufficient if any one of the above negligent allegations sufficiently submits defendant Conrad's negligence since they were joined conjunctively. Fantin v. L.W. Harp. Inc., 242 S.W.2d 509. (7) The instruction did not submit both general and specific negligence as those terms are used in connection with the error of combining general negligence and specific negligence in one instruction. This use of those terms is not to be confused with the expressions found in the Yates case and subsequent cases in which it is said that the negligent act specified in the instruction was "too general" and did not submit "specific acts" of negligence. To require the jury to find that "defendant Blanche Conrad negligently drove a Chevrolet pick-up truck described in evidence in a northerly direction from a dirt road described in evidence onto Missouri State Highway No. 25 directly in front of a tractor and trailer truck operated by defendant Albert James causing a collision therewith" is a submission of specific negligence. It is also sufficiently specific to withstand the test found in the Yates v. Manchester case and is not so general and indefinite as to give the jury a roving commission where the other facts required to be found by the instruction are considered. Jones v. Central States Oil Co., 164 S.W.2d 914; Sullivan v. Kansas City Pub. Serv. Co., 248 S.W.2d 605: State ex rel. Spears v. McCullen, 210 S.W.2d 68. (8) The submission of the failure to keep a lookout in Instruction II is preceded by a required finding by the jury of several detailed facts. Fortner v. St. Louis Pub. Serv. Co., 244 S.W.2d 10; Spencer v. Kansas City Pub. Serv. Co., 250 S.W.2d 187; Riley v. Young, 218 S.W.2d 805; Nelson v. Evans, 93 S.W.2d 691. (9) Although defendant Conrad did not admit, as defendant James admitted, that she did not look in the direction of the approaching James truck, the evidence irresistibly leads to that conclusion. One who has an obligation to look is charged with seeing what she could have seen in the exercise of the highest degree of care. If she fails to look and an injury results therefrom she is guilty of negligence as a matter of law. If she looks and fails to see what she should see, she is equally guilty of negligence. Knight v. Richey, 250 S.W.2d 972; Kobusch v. Ruberoid Co., 194 S.W.2d 911; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis S.F. Ry. Co., 38 S.W.2d 1023. (10) The objections, based on the decision of Yates v. Manchester, offered to Instruction II, have no application where there is no real difference in the factual theories of the parties and the circumstances surrounding the accident. Knight v. Richey, 250 S.W.2d 972. (11) The instruction did not declare the acts set forth therein to be negligent, but required the jury to find the acts specified were negligent. The instruction required that the jury find that defendant Conrad "negligently failed to keep a lookout . . . and negligently failed to have said pick-up truck under proper control, etc." The instruction required the jury to find the negligent failure to do an act, not just a failure to do the act; nor does the instruction utilize the declaration "then the court instructs you that the defendant was negligent." Such instruction has been approved numerous times. State ex rel. Spears v. McCullen, 210 S.W.2d 68; Nelson v. Evans, 93 S.W.2d 691. (12) Instruction IV was not prejudicial to appellant Conrad and she may not complain. Plaintiffs' Instruction IV, therefore, could not have authorized a verdict for plaintiffs on negligent acts not pleaded or submitted by plaintiffs. Fantin v. L.W. Harp, Inc., 242 S.W.2d 509; Nixon v. Hill, 52 S.W.2d 208; Jones v. Central States Oil Co., 164 S.W.2d 914. (13) Instruction VII did not mislead the jury into believing that they could award plaintiffs a verdict based on the negligent acts submitted in that instruction. An able and experienced trial judge did not believe it to be confusing or misleading at the time of the trial or when the motion for new trial was argued. There is a presumption that his action was correct unless it affirmatively and clearly appears to the contrary. In any event there was no misdirection so far as plaintiffs are concerned. Ford v. Dahl, 228 S.W.2d 800; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Hale v. St. Louis Pub. Serv. Co., 238 S.W.2d 876. (14) If defendant Conrad thought that the jury would be confused or misled into believing that Instructions IV and No. VII when read together authorized a verdict for the plaintiffs as contended by appellant Conrad, she was under a duty to offer a clarifying instruction and her failure to do so operates as an estoppel and she cannot complain. Norvell v. Schupbach, 185 S.W.2d 323; Garnett v. Kresge, 85 S.W.2d 157; Renfrow v. Loose Leaf Metals Co., 5 S.W.2d 665; Trusty on Instructions, sec. 24, p. 106. (15) The jury did not follow Instruction VII, but found against both defendants. Defendant Conrad cannot complain of a rejected hypothesis even though it might have been too favorable to defendants James and Trammel. Augustus v. Chicago, R.I. P. Ry. Co., 134 S.W. 22. (16) Defendant Conrad cannot complain of an instruction given by codefendants which only authorizes a verdict in favor of the codefendants and does not take away their defense or increase their burden. At most the instruction could only serve to prevent a joint verdict since it only authorized a verdict "in favor of defendants Albert James and J.W. Trammel." Neal v. Curtis Co., 41 S.W.2d 543; Storey v. People's Motor Bus Co. of St. Louis, 37 S.W.2d 898; Phegley v. Graham, 215 S.W.2d 499. (17) Defendant Conrad can certainly not object to the failure of the plaintiffs to hypothesize facts which she has admitted concerning her actions. Knight v. Richey, 250 S.W.2d 972; Ilgenfritz v. Mo. P. L. Co., 101 S.W.2d 723; Allen v. Purvis, 30 S.W.2d 196; Trusty on Instructions, sec. 9, p. 41. (18) Instruction VII is in harmony with defendant Conrad's Instruction 17 and she, therefore, cannot complain. Simpson v. Wells, 237 S.W. 520; Gordon v. Park, 117 S.W. 1163; Kinlen v. Metropolitan St. Ry. Co., 115 S.W. 523; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 651. (19) In any event, if defendant Conrad was guilty of negligence as a matter of law, she has not been prejudiced. Under the admitted and undisputed facts and the compelling inferences therefrom she is guilty of negligence as a matter of law. Knight v. Richey, 250 S.W.2d 972; Kobusch v. Ruberoid Co., 194 S.W.2d 911; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023. (20) Ordinarily the question of whether a party is an independent contractor is a question for the jury and in this instance the question was properly submitted to the jury under Instruction I. Matten v. Hoover, 166 S.W.2d 557; Coul v. Peck Dry Goods Co., 32 S.W.2d 758; Hoelker v. American Press, 296 S.W. 1008; Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52. (21) Defendant Trammel is not entitled to rely upon the defense that defendant James was an independent contractor since defendant Trammel did not plead as a defense that James was an independent contractor. This knowledge is peculiarly within the knowledge of defendants James and Trammel and if defendant Trammel expected to rely upon this defense it is necessary that it be pleaded. It is not raised by a general denial. Knoche v. Pratt, 187 S.W. 578. (22) When plaintiff made a prima facie case that defendant James was the agent and servant of defendant Trammel the burden of going forward with the evidence was upon defendant Trammel. Ward v. Scott County Milling Co., 47 S.W.2d 250; Knoche v. Pratt, 187 S.W. 578. (23) Even if Albert James was employed by the J.W. Trammel Trucking Company as an independent contractor, defendant Trammel would still be liable for the negligent acts of his employee while in the scope of the employment. State ex rel. Algiere v. Russell, 223 S.W.2d 481; Cotton v. Ship-By-Truck Co., 85 S.W.2d 80; 57 C.J.S., sec. 591. (24) Defendant Conrad cannot complain of Instruction 22, given on behalf of codefendants James and Trammel. Appellant Conrad contends that there was no evidence to support a sole cause instruction on behalf of James and Trammel. At most this sole cause instruction could only prevent a joint verdict (which it failed to do). It did not prejudice defendant Conrad or increase her burden. Neal v. Curtis Co., 41 S.W.2d 453; Storey v. People's Motor Bus Co. of St. Louis, 37 S.W.2d 898; Phegley v. Graham, 215 S.W.2d 499. (25) The parents are not restricted in their damages to the loss of earnings of the deceased minor child, but are entitled to recover in addition the monetary value of the services she rendered them. Hertz v. McDowell, 214 S.W.2d 546; Wright v. Osborn, 201 S.W.2d 935. (26) The amount of damages for the death of a minor is primarily the jury's prerogative. Upon review by an appellate court the test of whether the verdict is excessive is whether the size is such as to shock the conscience of the court. Wright v. Osborn, 201 S.W.2d 935; Volino v. Illinois Terminal Ry. Co., 200 S.W.2d 352; Brewer v. Rowe, 252 S.W.2d 372. (27) The court may take judicial notice that the purchasing power of money has declined since 1946 when the death occurred. Wright v. Osborn, 201 S.W.2d 935; Volino v. Illinois Terminal Ry. Co., 200 S.W.2d 352; Brewer v. Rowe, 252 S.W.2d 372. (28) Where the trial judge has considered the size of the verdict under a motion for new trial and has ordered a remittitur, deference should be given his judgment. Eller v. Crowell, 238 S.W.2d 310: Riley v. St. Louis Pub. Serv. Co., 245 S.W.2d 666.
Plaintiffs, as parents of Glenda Sue Hyde, deceased, filed this suit against the defendants asking $15,000 as damages for the wrongful death of Glenda Sue. A trial resulted in a verdict in favor of plaintiffs and against all of the defendants in the sum of $11,000. The trial court required a remittitur of $1,500. Plaintiffs complied with the order and judgment was entered for $9,500. All of the defendants appealed.
This case was filed in Dunklin County, Missouri. On change of venue the case was transferred to and tried in Butler County. The deceased, Glenda Sue Hyde, lost her life as a result of the same collision which was the subject matter of the case and the opinion in Hooper et al. v. Blanche Conrad, Albert James, and J.W. Trammel, No. 13,143, 364 Mo. 176, 260 S.W.2d 496, decided concurrently herewith.
The evidence in the two cases was about the same except that in the Hooper case, plaintiff Priscilla Hooper was injured, while in this case the evidence disclosed that plaintiff's daughter. Glenda Sue Hyde, was killed when the tractor-trailer, after its collision with a pick-up truck, turned over and fell on her.
The two cases were consolidated for argument in this court. The issues as to negligence were about the same and on this appeal the same points of law are involved here as in the Hooper case. The facts and circumstances were stated in the Hooper opinion and will not be restated here.
The defendants in this as well as in the Hooper case urge that plaintiffs' instructions were erroneous under the ruling of Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, and cases following the ruling in that case. What we said in the opinion in the Hooper case disposes of all the points urged in this case except as to the amount of the verdict.
Defendants say the verdict of $9,500 to the parents of Glenda Sue Hyde, eleven years old, is grossly excessive. To this we cannot agree. The trial court gave due consideration to this question as evidenced by the order of remittitur of $1,500. We are not justified in further disturbing the amount of the verdict. Defendants cite Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. In the Wright case, Division I of this court refused to reduce a judgment of $8,695 in favor of the parents of an eight-year-old son who had lost his life through the negligence of the defendants. See 201 S.W.2d l.c. 940 (10-12). What was there said applies to the situation now before us.
The judgment is affirmed. Dalton, J., not sitting. All others concur except Leedy, J., who concurs in result.