Opinion
January 11, 1936.
1. MOTOR VEHICLES: Warning. In an action for injuries caused by collision of the automobile in which plaintiff was riding with an automobile driven by defendant when the two met at a street intersection, whether defendant gave his signal indicating an intention to make a left turn into the intersecting street, was for the jury.
2. TRIALS: Hypothetical Question. Where defendant objected to a hypothetical question as a whole as invading the province of the jury, he should have directed the attention of the trial court to the part challenged, in order to have the alleged error considered on appeal.
3. TRIALS: Amendments. In an action for damages, an amendment of plaintiff's petition increasing the amount sued for, where the record presents no reason for the amendment, was error.
Amendment of a pleading at the close of the evidence without explanation or reason should not be encouraged.
4. TRIALS: Majority Verdict. An instruction authorizing a verdict if nine or more of the jury should agree upon it, though there was no instruction given defining the issues, did not authorize an arbitrary verdict; it must be presumed that the jury obeyed their oaths by giving consideration to the evidence on the question of liability.
5. EXCESSIVE VERDICT. Where plaintiff sustained a wounded knee, shoulder, arm, kidney and foot, and a wrenched back, was in bed for ten days and an operation was necessary upon her shoulder which confined her to the bed for two weeks, and suffered other injuries, a verdict for $12,000 was excessive by $4000.
Appeal from Jackson Circuit Court. — Hon. A. Stanford Lyon, Judge.
AFFIRMED ( upon condition).
I.J. Ringolsky, Wm. G. Boatright, Harry L. Jacobs and Ringolsky, Boatright Jacobs for appellant.
(1) Said instruction authorizes a verdict for the plaintiff, simply upon nine or more jurors' concurrence, without requiring their finding the existence of any of the specific facts necessary for recovery, and without requiring the jury to find any of the elements essential to plaintiff's recovery. Bailey v. Ormsby, 3 Mo. 580; Cleaveland to the Use of Case and Marks v. Davis, 3 Mo. 331; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 814; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Hoffman v. Parry, 23 Mo. App. 30; Hurley v. Mo. Pac. Trans. Co., 56 S.W.2d 623; State ex rel. Hurley v. Becker, 66 S.W.2d 526; Taylor v. Mo. Natl. Gas Co., 67 S.W.2d 109; Williams v. Harrison, 3 Mo. 411; Fugate Young v. Carter, 6 Mo. 273; Bank v. Murdock Armstrong, 62 Mo. 73; Crews v. Lackland, 67 Mo. 620; Raysdon v. Trumbo, 52 Mo. 38; Birtwhistle v. Woodward, 95 Mo. 118; Greer v. Parker, 85 Mo. 111; Phelan v. Paving Co., 227 Mo. 713, 127 S.W. 318; Stuart v. Dickinson, 290 Mo. 519, 235 S.W. 446; Butcher v. Death Teasdale, 15 Mo. 274; Highfill v. Independence, 189 S.W. 802; Keppler v. Wells, 238 S.W. 429; Lafayette Bank v. Metcalf, 29 Mo. App. 395; Lesser v. Ry. Co., 85 Mo. App. 326; Fleischmann v. Miller, 38 Mo. App. 181; Sec. 8768, R.S. 1929. (a) Said instruction is not plain, clear or explicit, but is confusing, ambiguous and indefinite. Bailey v. Ormsby, 3 Mo. 580; Cleaveland to the Use of Case and Marks v. Davis, 3 Mo. 331. (b) Said instruction virtually authorized a verdict on any theory the jury could construct or evolve out of their own minds. Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Hurley v. Mo. Pac. Trans. Co., 56 S.W.2d 620; State ex rel. Hurley v. Becker, 66 S.W.2d 526. (2) The court erred in permitting plaintiff to amend her petition over defendant's exceptions after all the evidence was in, increasing the amount of damages prayed for from $10,000 to $20,000. This point was preserved in paragraph 3 of defendant's motion for new trial. (a) The permission to amend was arbitrary, an abuse of the court's discretion, and not in furtherance of justice. Joyce v. Growney, 154 Mo. 253, 55 S.W. 466. (b) No reason was presented or appears in the record for said amendment and no excuse was offered for the delay in requesting same. Joyce v. Growney, supra; Kenney v. South Shore Natl. Gas Fuel Co., 110 N.Y.S. 503; 49 C.J. 528, sec. 699. (c) The court by its action in reducing the verdict from $15,000 to $12,000 judicially ruled in this very case that the maximum damages allowable were $12,000, hence it was erroneous to allow an amendment in the prayer submitting damages up to $20,000.
James R. Sullivan and Arthur R. Wolfe for respondent.
(1) Defendant was negligent as a matter of law in failing to keep a reasonable lookout while turning his automobile, since he judicially admitted such negligence in his answer and also in his oral testimony. In view of defendant's binding admissions of liability, the plaintiff was entitled to a directed verdict except on the issue of contributory negligence and the measure of damages. Being negligent as a matter of law, he could be prejudiced by no error in the trial bearing on the issue of liability. State ex rel. Boatmen's Natl. Bank v. Webster Groves Sewer Dist., 327 Mo. 594, 37 S.W.2d 908; Allen v. Purvis, 30 S.W.2d 200; Stein v. Rainey, 286 S.W. 57; Hornbuckle v. McCarty, 243 S.W. 329; Hook v. Ry. Co., 162 Mo. 581, 63 S.W. 360; Hayden v. Ry. Co., 124 Mo. 573; Kingsbury v. Joseph, 68 S.W. 95; Thompson v. Smith, 253 S.W. 1028; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 23; Cornoyer v. Oppermann Drug Co., 56 S.W.2d 614; Secs. 821, 1062, R.S. 1929; Dorman v. Ry. Co., 75 S.W.2d 854; Lister v. Tyler, 69 S.W.2d 633; Neal v. Curtis Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (2). There was no error in overruling defendant's demurrer to the evidence. (a) Defendant's demurrer to the evidence was properly overruled because, as shown by the record herein, there was substantial evidence tending to prove that no signal was given by defendant of his intention to make a left-hand turn. Grubbs v. K.C. Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 74; Young v. Wheelock, 64 S.W.2d 954; Biondi v. Central Coal Coke Co., 9 S.W.2d 597; Independence Elec. Co. v. Farley Bros., 192 S.W. 129; Van Hafften v. Clayton, 259 S.W. 533; Storey v. Peoples Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898; O'Bauer v. Katz Drug Co., 49 S.W.2d 1073. (b) Defendant's demurrer to the evidence was properly overruled because plaintiff concededly made a submissible case on at least four of her charges of negligence. Young v. Wheelock, 64 S.W.2d 953; Moyer v. Ry. Co., 198 S.W. 842; Plummer v. Ford, 208 S.W. 491; Gannon v. Laclede Gaslight Co., 145 Mo. 512, 46 S.W. 968, 47 S.W. 907; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 63; Byrd v. Railroad Co., 46 S.W.2d 222; Irvin v. Kelting, 46 S.W.2d 925; Klaber v. Royal Exchange Assur., 48 S.W.2d 68. (c) At no stage of the trial below did the defendant direct the trial court's attention specifically to the contention made here that plaintiff did not make a submissible case on the charge of negligence that defendant did not give a signal for a left-hand turn. Nor did the defendant save his exception below to any adverse ruling of the court on this issue. The general demurrer to the evidence did not call this point directly to the attention of the trial court, nor was the overruling of the demurrer a specific ruling on such point which would preserve it for review. Chinn v. Naylor, 182 Mo. 583, 81 S.W. 1109; Pulsiper v. Albany, 47 S.W.2d 236; Peterson v. Railroad Co., 265 Mo. 480; Powell v. Railroad Co., 164 S.W. 628, 255 Mo. 454; Young v. Wheelock, 64 S.W.2d 956; Dorman v. Ry. Co., 75 S.W.2d 854; State ex rel. v. Trimble, 39 S.W.2d 375; R.S. 1929, sec. 1061; Williams v. Williams, 259 Mo. 242, 168 S.W. 618; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1127; Springfield v. Smith, 19 S.W.2d 9; Polsky v. St. Louis, 264 Mo. 458, 175 S.W. 197; Greer v. Carpenter, 19 S.W.2d 1046; Britt v. Crebo, 199 S.W. 154; Rookenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 801; Torrence v. Pryor, 210 S.W. 430; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 63; Kinlen v. Met. St. Ry. Co., 216 Mo. 145, 115 S.W. 533; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Kansas City G. Ry. Co. v. Haake, 331 Mo. 429, 54 S.W.2d 894; Young v. Wheelock, 64 S.W.2d 956. (3) There was no error in Instruction 2 given of the court's own motion, stating the number of jurors necessary to return a verdict and the manner or form of returning the same. Sec. 28, Art. 2, Const. of Mo.; Sharp v. Biscuit Co., 179 Mo. 553, 78 S.W. 787; Kelley-Goodfellow Shoe Co. v. Sally, 114 Mo. App. 227, 89 S.W. 889; Ritschy v. Garrels, 195 Mo. App. 676, 187 S.W. 1120; Sec. 8768, R.S. 1929; Smith v. So. Ill. Mo. Bridge Co., 30 S.W.2d 1077, 326 Mo. 109; Cape Girardeau v. Hunze, 284 S.W. 471, 314 Mo. 438; Randol v. Kline's Inc., 49 S.W.2d 116; Neal v. Caldwell, 34 S.W.2d 104; Shinn v. Railroad Co., 648 Mo. 182, 154 S.W. 103; Luikart v. Miller, 48 S.W.2d 870; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 570.
Action for personal injuries. The collision occurred at the intersection of Main and Pershing streets in Kansas City, Missouri. The automobile in which plaintiff was riding moved north on Main Street, and defendant's automobile moved south on said street. At the intersection the defendant made a left turn and collided with the northbound car. The five assignments of negligence submitted included an assignment that defendant negligently failed to give warning of a left turn. Judgment for $12,000.
I. Defendant contends that there was no evidence to support said assignment. On the question he testified that the window of the left door of his car was open and that he extended his arm through the window and pointed downward as indicating an intention to make a left turn. On the contrary, there was evidence tending to show that immediately after the collision the window of the left door of defendant's car was closed. The question was for the jury. Furthermore, the question was not mentioned in the motion for a new trial.
II. Defendant also contends that part of a hypothetical question invaded the province of the jury. At the trial he objected to the question as a whole. He should have directed the court's attention to the part challenged as invading the province of the jury. Furthermore, this question also was not mentioned in the motion for a new trial.
III. Defendant also contends that the court should not have permitted plaintiff to amend the petition at the close of the evidence by increasing the $10,000 prayed for as damages to $20,000. The amendment was not made in the presence of the jury.
The record presents no reason for the amendment. The petition specified many severe injuries sustained by plaintiff. There was evidence tending to sustain only a few of the specifications of injury. On the record we do not think the amendment should have been permitted. The amendment of pleadings at the close of the evidence, without explanation or reason, should not be encouraged. However, the prejudice, if any, may be remedied on consideration of the verdict.
IV. Defendant also contends that the instruction directing the jury that nine or more jurors could return a verdict was erroneous and prejudicial.
In this connection he directs attention to the submission without instructions defining plaintiff's theory of the case. Defendant made no objection to this manner of submission. However, he excepted to the instruction with reference to the number of jurors necessary to return a verdict, which instruction follows:
"You are instructed that nine or more jurors may render a verdict for either party in this case. If all of you agree upon a verdict, your foreman alone will sign it, but if your verdict is rendered by nine, or more, and less than twelve jurors, your verdict must be signed by all of the jurors who agree to it."
It is clear that the instruction does not direct the jury on the issues involved in the case. But defendant argues that absent instructions defining the issues, the words "may return a verdict for either party in the case" authorized the jury to arbitrarily return a verdict without consideration of the facts and circumstances in evidence. We do not think so. It must be presumed that the members of the jury obeyed their oaths by giving consideration to the evidence on the question of liability. As stated in Shinn v. United Rys. Co., 248 Mo. 173, l.c. 182, 154 S.W. 103: "We will not speculate on what the jury might do, or airily conjecture this or that. We stand on the proposition that the jury are presumed, absent anything to the contrary appearing, to obey their oaths and bring in a verdict according to the evidence."
V. Defendant next contends that the verdict is excessive.
Plaintiff sustained a bruised and wounded knee, shoulder, arm, kidney and foot, and a wrenched back. She was attended by a physician and conveyed to her home where she was in bed for ten days. In the meantime bruised blood in the tissues made necessary an operation on the shoulder. At his office the physician removed a large blood clot from the shoulder. She was in bed for two weeks after the operation, and at home for eight weeks after the collision. During that time she was unable to walk unaided because of the injured knee. It sometimes "locked," causing her to fall. After a certain fall she used crutches for six weeks. At the time of the trial it had "locked" thirty times, the last time three weeks before the trial. She experienced pain, especially from the injuries to the knee and shoulder. The scar on the shoulder is sensitive and tender. As a result of the bruised kidney she passed blood in her urine for three days after the collision. The physician attending her testified that she had recovered from the injuries except the injuries to the shoulder and the knee; that the knee was still slightly swollen; that the injury to the knee and the scar on the shoulder were permanent, and that she was still slightly nervous.
He also testified that a removal of the scar tissue by an operation would not be successful and that such an operation would increase the size of the scar. There was evidence tending to show that x-ray treatment of the shoulder would reduce the scar tissue and decrease irritation about the scar. At the time of the trial plaintiff was still using a bandage on the knee.
Thus it appears that plaintiff sustained serious injuries as a result of the collision. Even so, we think that a judgment for more than $8000 would be excessive. Therefore, if plaintiff will, within ten days, enter in this court a remittitur of $4000, the judgment will be affirmed for $8000 as of the date of the original judgment; otherwise the judgment is reversed and the cause remanded.
All concur.