Opinion
Opinion Delivered January 20, 1954.
1. — Automobiles. In actions, by driver for injuries, and by automobile owner, for damages sustained in automobile collision, jury's implied finding that defendant swerved across the center highway line and collided with plaintiffs' automobile, was sustained by the evidence.
2. — Automobiles. Defendant, who swerved his automobile across center line of highway and collided with another automobile, was not relieved from liability because of other automobile driver's intoxication. Section 304.010, 564.440 RS Mo. 1949, V.A.M.S.
3. — Trial. Court's instruction which required jury to find that injuries to automobile driver were caused by negligence of defendant automobile driver, considered with subsequent instruction that either party must have been free of any negligence before such party could recover, did not constitute reversible error.
4. — Trial. All instructions must be read together.
5. — Automobiles. In action by owner of automobile, which was driven by another, for damages sustained in a collision, court's refusal to direct verdict for defendant, on grounds that owner had not shown certificate of title to the automobile, when point of ownership had not been raised during trial and defendant had treated plaintiff as owner of the automobile in his answer, was proper.
6. — Appeal and Error. Alleged error in admitting witness' testimony, that value of automobile after collision was from $300 to $500, when defendant's motion to strike such testimony had been denied but defendant had not excepted to court's ruling, could not be raised on appeal.
Appeal from Circuit Court of Mississippi County. — Hon. Norwin D. Houser, Judge.
AFFIRMED.
Harold D. Jones and James Haw for appellant.
(1) The Court erred in refusing to direct the jury to return a verdict against plaintiff Frank J. James and in favor of defendant on Frank J. James' cause of action at the close of plaintiffs' case and again at the close of the whole case and in overruling defendant's motions for said directed verdict for the following reasons: The evidence, including that offered in behalf of said plaintiff, clearly shows that said plaintiff, operating while drunk, in violation of an express statute, an automobile with only one light, and that a dim one, drove the same onto the highway in violation of the law, and, by his own negligence caused, or directly contributed to, his own injuries. Blackwell v. Union Pac. Ry. Co., 53 S.W.2d 814, 334 Mo. 34; Mosely v. Sum et al., 130 S.W.2d 465, 344 Mo. 969; R.S. Mo. 1949, Sec. 564.440. (2) The giving of Instruction No. 1 on behalf of plaintiff Frank J. James (Tr. pp. 195, 196), was reversible error, because it is an instruction covering the whole case, authorizing the recovery for said plaintiff, if the jury finds defendant guilty of negligence in the manner mentioned without instructing them that they cannot find for said plaintiff, if they find him guilty of contributory negligence. Trusty on Constructing and Reviewing Instructions, Section 6, page 27; Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094, l.c. 1097 (4 and 5), (App. NOP). It does not require that the jury find defendant's negligence, if any, is either the sole cause or the proximate cause of plaintiff's injury. McGrath v. Meyers, 107 S.W.2d 792, l.c. 794 (4), (6), 341 Mo. 412; Borgstede v. Waldbauer, 88 S.W.2d 373, l.c. 378 (14, 15). (3) The Court erred in refusing to direct a verdict against Gilbert James and in favor of defendant on Gilbert James' cause of action and in overruling defendant's motion for said directed verdict for the following reasons: 1. There was no competent or substantial evidence as to the ownership of the car Frank J. James was driving at the time of the collision, neither the certificate of title, nor a certified copy thereof being offered, when it was possible to produce them. Martin v. Martinis, 219 S.W.2d 667, l.c. 674 (7) (NOP); Doherty v. Doherty, 155 Mo. App. 481, 134 S.W. 1112, 1113. 2. There was no competent or substantial evidence as to the value of the car plaintiff Frank J. James was driving at the time of the collision. Miller v. Brayden, 34 Mo. App. 602, l.c. 607 (III). Cunningham v. Holzmark, 37 S.W.2d 956, l.c. 960, 225 Mo. App. 762. (3) The failure of plaintiff Gilbert James to have Ophus Nelson, the man from whom he said he purchased the car and who was in the court room at the time of the trial (Tr. p. 92), testify as to its value and the price said Gilbert James paid for it, is a strong inference that said Nelson's evidence would have been unfavorable to said plaintiff. Ewing v. McIntosh, 222 S.W.2d 738, l.c. 741, 359 Mo. 625; National Battery Co. v. Standard Accident Ins. Co., 41 S.W.2d 599, l.c. 604 (2), 226 Mo. App. 351; Baker v. Chicago, B. Q. Ry. Co., 39 S.W.2d 535, 327 Mo. 986. (4) 1. The Court erred in admitting the evidence of Gilbert Tribble (Tr. pp. 104, 105) as to the value of a clean car like the 1936 Chevrolet being from $300.00 to $500.00. He expressly testified that he could not say what the reasonable market value of the car was (Tr. p. 111). Miller v. Brayden, 34 Mo. App. 602, l.c. 607 (III). 2. The Court erred in overruling the motion of defendant to strike the evidence given by said Gilbert Tribble as to the value of the car being from $300.00 to $500.00 before the accident and to instruct the jury to disregard it (Tr. p. 113). (5) The Court erred in the giving of Instruction No. 2 in behalf of plaintiff Gilbert James for the reason that said instruction did not require the jury to find that the negligence, if any, of defendant was the sole or proximate cause of the damage to the motor vehicle driven by Frank J. James. Trusty on Constructing and Reviewing Evidence, Section 6, page 27; McGrath v. Meyers, 107 S.W.2d 792, l.c. 794 (4) (6), 341 Mo. 412.
Ward Reeves, and R.W. Hawkins for respondents.
(1) Instruction No. 1 on behalf of plaintiff to find for plaintiff if collision occurred because of defendant's negligent acts and the injuries sustained by plaintiff were caused by the negligence of the defendant clearly required finding of a causal connection between defendant's negligence and plaintiff's injuries and does not require a finding that such negligence was the direct and proximate cause of the injuries. Stevens v. Dickey, 222 S.W.2d 563, l.c. 565. (2) If there was error in plaintiff's instruction, in failing to submit contributory negligence to the jury, then such error was cured by defendant's instructions No. 7 and No. 9, which fully covered this defense. Wheeler v. Breeding, 109 S.W.2d 1237, l.c. 1243. Riegal v. Biscuit Co., 169 Mo. App. 513, 155 S.W. 59. Davis v. City of Independence, 330 Mo. 201, 49 S.W.2d 95. Billingsley v. Kansas City Public Service Co., 239 Mo. App. 440, 191 S.W.2d 331, l.c. 338. Pyle v. McNealy, 227 Mo. App. 1035, 62 S.W.2d 921. All instructions given in a case must be considered together. State v. Cox, 270 S.W. 113. (3) It was proper to admit secondary evidence as to the ownership of the car driven by Frank J. James. The certificate of title was not available and could not be produced, and in the absence of a reasonable request that it be produced, and defendant was not prejudiced thereby, it was not error to admit the secondary evidence of ownership, especially as there was no real dispute about the ownership. Roland v. Gassman, 44 S.W.2d 658. Brunk v. Hamilton Brown Shoe Factory, 334 Mo. 517, 66 S.W.2d 903. The evidence as to the value of the car driven by Frank J. James was substantial. The witness who testified as to the value of said car at the time of the collision was not required to be an expert in order to express an opinion as to value if it appeared that he had and used means superior to those of the jury for forming an opinion. Lee v. Allen, 120 S.W.2d 172. Dyer v. Standard Fire Insurance Co. of New Jersey, 227 S.W.2d 520. No inference can be drawn that the evidence would have been adverse to plaintiff from the fact that Ophus Nelson, the man from whom Gilbert James purchased said automobile, was present in the Court room and did not testify. The witness was available to both parties and neither party can draw an adverse inference against the other for not placing him on the stand. In re Thomasson's Estate, 148 S.W.2d 757, 347 Mo. 748. Winkler v. Pittsburgh C., C. St. L.R. Co., 321 Mo. 327, 10 S.W.2d 649. Chavaries v. National Life and Accident Insurance Co., (Mo. App.) 110 S.W.2d 790. McInnis v. St. Louis-Southern, 341 Mo. 677, 108 S.W.2d 113. Dougherty Real Estate Co. v. Gast, (Mo App.) 95 S.W.2d 1062. Donet v. Prudential Insurance Co., (Mo. App.) 23 S.W.2d 1104. (4) The evidence of Gilbert Tribble as to the value of the 1936 Chevrolet being from $300.00 to $500.00 was admissible for he testified that he was basing this figure on the assumption that the facts testified to by Mr. James were true and what he had seen people buying and selling these used cars for at that time in 1947 (Tr. p. 113). For the above reasons the Court did not err by failing to order stricken the testimony of Gilbert Tribble as to the value of the car. (5) The Court did not err in giving Instruction No. 2 in behalf of plaintiff Gilbert James for the same reasons given in paragraph I of this brief, for Instruction No. 2 for plaintiff Gilbert James is essentially the same as Instruction No. 1 in behalf of Frank J. James. No "sole" cause Instruction is needed, for defendant gave Instructions on contributory negligence.
This is a suit for $5,000.00 for damages on account of injuries alleged to have been sustained by plaintiff Frank J. James, on August 3, 1947, in an automobile collision with defendant, on Highway 61, near Portageville, in New Madrid County, Missouri. From the date of the occurrence of the accident, the case has sustained a most unusual career. On March 14, 1950, the regular judge of Mississippi County disqualified himself as the trial judge. A change of venue was taken from New Madrid County and the case was sent to Mississippi County, where it was tried by Honorable Norwin D. Houser, a Judge of the 27th Judicial Circuit of this State, and a jury. Plaintiff Gilbert James also filed a petition, claiming that he owned the car that was in the collision.
After the testimony was finished and Judge Houser had instructed the jury, it unanimously returned a verdict for plaintiff Gilbert James in the sum of $333.00, and nine of the jurors returned a verdict for plaintiff Frank J. James for $1,000.00. The trial judge rendered judgment in accordance with the verdicts of the jury. Defendant has appealed to this Court.
The above recited facts sometimes occur in a case before this Court; but the subsequent events are rather unusual in any case. Owing to the illness of the stenographer, the transcript on appeal was not prepared until May 15, 1952. Since then one of the defendant's attorneys has been elected as Probate Judge of Mississippi County, and contended that he is no longer a competent attorney in the case, and withdrew. One of the leading lawyers for defendant became sick and disabled and subsequently died therefrom. The case on appeal was continued from term to term, for different reasons, until the October Session, 1953, thereof.
Before the trial, plaintiff Frank J. James filed an amended petition in five counts, and plaintiff Gilbert James also filed an amended petition. Both of such amended petitions were by entirely different attorneys. Defendant filed an answer in several counts, blaming the collision upon plaintiff Frank J. James, and praying to be dismissed as to plaintiff Gilbert James. Defendant also filed a counter claim, alleging that the collision was due to the fault of plaintiff Frank J. James, and demanded damages for the injuries he claims to have received from the collision with plaintiff Frank J. James.
The trial started and plaintiff Frank J. James witnesses claimed that he was on the east side and that he had stopped for a short time at a filling station to correct poor lights on his automobile, and that he was driving over on the east side of Highway 61 when defendant was driving on the west side. The testimony tended to show that defendant was going south on the west side of Highway 61 and swerved to the east side of the Highway and ran into the automobile operated by plaintiff Frank J. James.
The testimony of defendant tended to show that plaintiff Frank J. James was drinking while operating his car. Plaintiff Frank J. James' testimony tended to show that defendant was going south on the west side of the Highway and swerved to the east side of the Highway, where plaintiff Frank J. James was at the time.
The testimony of defendant tended to show that plaintiff Frank J. James was drinking, but he operated his car whether drinking or sober, and was in the proper place at the time. There was only one light in the front of plaintiff Frank J. James' automobile. Defendant's testimony tended to show that at no time did plaintiff deny that. The center line in the middle of the Highway was on the left side of plaintiff.
Plaintiff Frank J. James, claimed that the collision knocked him down on the pavement, inflicting a cut on his forehead, and other injuries, which laid him up unconscious in the hospital for over twelve hours. The accident happened shortly after midnight and plaintiff Frank J. James was not discharged from the hospital until about 5:00 o'clock in the afternoon. Both plaintiff Frank J. James and defendant testified to severe injuries. The jury evidently believed such plaintiff and his witnesses.
But for the misconduct of defendant in driving to the east side of the Highway, the collision would not have happened, regardless of whether or not plaintiff Frank J. James was intoxicated. Section 304.010, R.S. Mo. 1949. The statute cited shows that, if the jury believed the witnesses of plaintiff Frank J. James, which the jury had the right to do, the blame was on the part of defendant, and not on the part of plaintiff Frank J. James.
The Highway patrolman who arrived on the scene only a few minutes after the collision occurred, corroborated plaintiff Frank J. James, especially as to the position of his car. The jury had the right to think that such plaintiff was on the east side of the Highway going north, and to disbelieve defendant's story that such plaintiff was over the middle line of the Highway, and collided with defendant on the west side of the Highway. According to the statute cited and according to the general law, defendant was believed to have been grossly negligent. If plaintiff Frank J. James was on the east side of the Highway, as the jury found, defendant had no right to swerve his automobile over to the east side. Even if there was only one poor light on plaintiff's car and even if plaintiff Frank J. James was intoxicated, defendant had no right to drive his automobile over to that side of the Highway, without ascertaining in advance that such side was not occupied.
Defendant cites Blackwell v. Union Pacific Ry. Co., 53 S.W.2d 814, 334 Mo. 34, but after a diligent search we found the case in 52 S.W.2d 814, and it does not touch this case at all. The judgment in that case was reversed for error in the instructions given to the jury.
Defendant also has cited Mosely v. Sum, et al., 130 S.W.2d 465, 344 Mo. 969. That case simply holds that, when plaintiff's injuries are shown to have been the result of his contributory negligence, he cannot recover at all.
Appellant cites Section 564.440, R.S. Mo. 1949. This section is very short and we quote it in full.
"No person shall operate a motor vehicle while in an intoxicated condition, or when under the influence of drugs."
That section was evidently intended to prevent people intoxicated from operating a car at all. We cannot imagine how the section quoted could afford any protection if the defendant deliberately ran over and injured Frank J. James, even if said James was intoxicated. Even intoxicated persons are entitled to the exercise of the highest degree of care by others using the same highway.
Appeallant criticizes Instruction 1. There might be some objection, if it stood alone. Any possible complaint about that instruction is removed by Instruction 9. In the latter instruction the trial judge plainly told the jury that both plaintiff Frank J. James and defendant must have been free of any negligence before such party could recover. In finding for such plaintiff the jury must not have found that the collision was the result of contributory negligence of plaintiff Frank J. James. All of the instructions must be read together. State ex rel. v. Cox, 270 S.W. 113.
The objection to the second instruction is certainly cured by the first instruction, which required the jury to find that the injuries to plaintiff Frank J. James were caused by the negligence of defendant.
In the third point, defendant says that the trial court erred in not directing a verdict against plaintiff Gilbert James, because that plaintiff did not show that he had a certificate of title to his car. Appellant never raised the point of ownership of the automobile in the trial. In his answer to the petition of plaintiff Gilbert James, appellant at all times treated such plaintiff as the owner of the automobile.
While the verdict for plaintiff Gilbert James was for $333.00, and such plaintiff, on his direct examination, testified to a smaller value after the collision, the trial court permitted witness Gilbert Tribble to testify that the car was of the value of from $300.00 to $500.00 at that time.
It is too late now to charge the trial court with error in admitting that evidence, as defendant has done in Point IV. The transcript does not support appellant's present contention.
Appellant filed a motion to strike out the testimony of witness Gilbert Tribble. That motion was overruled and the record does not show any exception to such ruling.
The verdicts, with resulting judgments for both respondents, should be approved.
It is so ordered.
McDowell, P.J., concurs.