Roberts v. Carter

Full title: ROBERTS v. CARTER

Court: Kansas City Court of Appeals, Missouri

Date published: Nov 20, 1950

234 S.W.2d 324 (Mo. Ct. App. 1950)

Opinion

No. 21394.

November 20, 1950.

APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, EMORY H. WRIGHT, J.

Harold T. Van Dyke, Albert Thomson, Maurice J. Street, Johnson, Davis, Thomson, and Van Dyke Fairchild, all of Kansas City, for appellant.

James Patrick Quinn, Alex D. Peebles and Quinn Peebles, all of Kansas City, for respondent.

DEW, Presiding Judge.

Respondent, plaintiff in the trial court, brought this action to recover damages for personal injuries alleged to have been received in an automobile accident due to the negligence of the defendant. The plaintiff recovered a verdict of $4000. The defendant's motion for a new trial having been overruled, he prosecutes this appeal.

Plaintiff's petition alleges a collision at the intersection of 6th and Locust streets in Kansas City, Missouri on the evening of Friday, February 27, 1948, between an automobile belonging to the plaintiff's husband and in which she was then a passenger, and an automobile being driven in the opposite direction by the defendant. The petition is based on five theories of liability, of which three were submitted, namely, that the defendant at the time negligently failed to maintain a vigilant and proper lookout for automobiles at or on the said intersection at said time, that defendant negligently failed to yield the right-of-way to the automobile in which plaintiff was riding and which was approaching and had entered the intersection from the opposite direction, or was so close to the intersection as to constitute an immediate hazard, in violation of a certain section of an ordinance of Kansas City, Missouri, and that defendant was negligent in attempting to make a left-hand turn at the intersection without passing to the right of the center line of said intersection, but attempted to cut the corner thereof, in violation of another section of said ordinance of Kansas City, Missouri. The answer denied the allegations of negligence and pleaded that the injuries of the plaintiff, if any, were due solely to the negligence of plaintiff's husband, driver of the car in which plaintiff was riding.

Appellant's first point is that the court erred in submitting Instructions 1, 2, and 3, requested by the plaintiff because each hypothesized the same set of facts and the same proposition of law, thereby unduly emphasizing plaintiff's theory, to the prejudice of defendant. In Instruction 1, the court hypothesized the date and place of the accident, the presence of the plaintiff in an automobile being driven east on 6th Street at the intersection with Locust Street, and the driving of an automobile westward on 6th Street near said intersection by defendant, and the turning of his car there by defendant to make a left turn, and upon such hypothesis told the jury that if it further found that the defendant, in so doing, failed to cause the automobile to pass to the right of the center line of the street from which he was turning the automobile as required by Section 31-48 of a certain ordinance of Kansas City, then defendant was guilty of negligence, and submitted to the jury that if it further found and believed from the evidence that such failure on the part of the defendant, if any, was the direct and proximate cause of the collision and plaintiff's injuries complained of, the verdict should be for plaintiff.

By Instruction 2, the court hypothesized the same facts as to the presence and location of the parties and the cars, and defendant's attempt to turn left, and directed a verdict for the plaintiff if the jury found that defendant negligently failed to maintain a vigilant watch for vehicles upon 6th Street approaching from the west, and if so, if such negligence directly caused the collision and injuries complained of.

Under Instruction 3, the court instructed the jury that Section 31-45, Revised Ordinance of Kansas City, 1946, required the driver of an automobile intending to turn left at an intersection to yield the right-of-way to any vehicle approaching from the opposite direction, which is within the intersection, or so close thereto as to constitute an immediate hazard. The court thereupon hypothesized the same facts as in the other two instructions as to the presence and location of the parties and the cars in question and directed a verdict for the plaintiff if the jury found that the defendant turned his automobile to the left in attempting to make a left turn of his automobile at said intersection when the automobile in which plaintiff was then riding was within the intersection, or so close thereto as to constitute an immediate hazard and drove his car directly in front of the car in which plaintiff was riding so as to cause the collision, and as a direct and proximate result thereof plaintiff was injured.

It is incorrect to say that the three instructions hypothesized the same proposition of law. On the contrary, each instruction submitted a different proposition of law and a different theory authorized by the petition and proof. The only facts repeated were undisputed. Any repetition in instructions is largely a matter for the court's discretion. Mendenhall v. Neyer, 347 Mo. 881, 889, 149 S.W.2d 366, 371; Corley v. Kroger Grocery Baking Co., 355 Mo. 4, 11, 193 S.W.2d 897. Plaintiff had the right to submit any one or more of the theories of liability pleaded on which there was supporting evidence, and was entitled to proper instructions to cover each of them. Wilson v. Thompson, 345 Mo. 319, 324, 133 S.W.2d 331; Raymond, Missouri Instructions, Vol. 1, p. 66. Defendant cites the case of Arnold v. Alton R. R. Co., 343 Mo. 1049, 124 S.W.2d 1092, which opinion cites the other cases relied upon by the defendant in his brief on this point. In the Arnold case, supra, 11 instructions were given on behalf of defendant, some cautionary in character, some predicated on the same hypothesis, differently phrased, some upon the burden of proof, one constituting a general instruction, and others of a negative character on similar subjects. The court said, 124 S.W.2d at page 1095: "Repetition in or elaboration on the same proposition of law in different instructions is not ordinarily sufficient grounds for reversing and remanding a cause upon appeal (citations); but such practice is not commended (citations), and has been condemned (citations)". The ruling of the trial court in granting a new trial on the ground of error in instructions was not disturbed.

In Reeves v. Lutz, 191 Mo.App. 550, 177 S.W. 764, cited by defendant, four separate instructions were given for the defendant on the same proposition of law, in different phraseology. Such repetition, considered with prejudicial questions on the subject matter, was held as one of the grounds for reversal. In Fantroy v. Schirmer, Mo.App., 296 S.W. 235, also cited, the court held that three separate instructions on the burden of proof imposed upon the plaintiff, unduly emphasized that proposition of law and the giving of them was error. In Miller v. Williams, Mo.Sup., 76 S.W.2d 355, the court held it to be error to give two instructions on the burden of proof. It is evident that such rulings do not apply to the instant case wherein each of the instructions complained of was predicated upon a different proposition of law, and a different theory of liability authorized by the pleading and proof, and in which no hypothesis of facts was repeated except such as were not in dispute.

The appellant's second point is that the verdict was so excessive as to show bias and prejudice on the part of the jury, and that the court erred in not ordering a remittitur or granting a new trial for that reason. Under that point the appellant argues that the evidence of permanency of plaintiff's injuries was inconclusive and insufficient; that there was no testimony that the plaintiff suffered a concussion of the brain; that the physical facts show that the injuries were of a minor nature; that no loss of wages or medical bills were claimed; that the verdict was so excessive as to require a remittitur or reversal; that the circumstances of the collision and the parties, and the testimony of the police officers inflamed the jury and resulted in a verdict penal in nature, rather than compensatory. At the close of the evidence the court instructed the jury that the plaintiff was not asking for damages for loss of wages, medical expense or doctor bills. The court refused to instruct the jury that the plaintiff could not be allowed any damages for permanent or total disability. The instructions given at the request of the plaintiff made no specific mention of the permanency of the injuries claimed, although pleaded. The result was that under the instructions of the court, a verdict for the plaintiff could include damages for personal injuries to the plaintiff, including permanent injuries, but none could be allowed for loss of wages, medical expense or doctor bills.

We recently said in Doutt v. Watson, Mo.App., 231 S.W.2d 230, at page 234: "In considering this question (excessive verdict) we must consider the evidence bearing thereon in its most favorable light in aid of the verdict and judgment, just as we do in determining whether a submissible case was made". We cited Henderson v. Dolas, Mo.Sup., 217 S.W.2d 554, 557, wherein the Supreme Court held to the above effect, and added that in so considering the evidence favorable to the plaintiff the appellate court should "disregard conflicting testimony".

Plaintiff's evidence on the matter of damages was, substantially, that in the collision she had been thrown forward violently against the windshield and dashboard, striking her head, chest and knees, and then thrown violently backward. Some tools and other articles in the trunk of the car had been thrown forward with enough force to go through the partition in the back of the car and strike the plaintiff. Immediately following the collision she stood with others at or near the place of collision until the police officers arrived, and then went with her husband in a car to the police headquarters. There she went up a flight of stairs to the offices, and remained there until the police officers completed their reports, whereupon she was taken to the General Hospital. At that time she complained of throbbing pain in her head, where there was a large swelling or knot formed. She suffered pain in her ribs on the right side, and a laceration on her knee, and was generally bruised. She was examined at the hospital and a band-aid was placed on her knee, methylate was applied, and in about an hour or an hour and a half, she went home. The following day plaintiff went to the doctor's office, where x-rays were taken of her head, back, chest and knees. The x-rays showed no fracture or other injury to her bones. The doctor prescribed sedatives for pain, certain light treatments and taped her ribs on the right side. The following Monday, the plaintiff returned to the office of the Salvation Army, although she performed no services. She continued to work every day thereafter except for such parts thereof as required her to call at the doctor's office, which she did daily for some time, and later about once a week, but not later than May of 1948. The scar on her right knee was two and a half inches long. At the time of the trial, twenty months after the date of the accident, plaintiff still complained of headaches and dizzy spells and trouble with her chest and ribs, and a grating feeling and pain in her knee. She was extremely nervous, and housework caused pain in her back. Prior to the accident plaintiff had had no trouble with her head, back, chest. or knee. In the opinion of her physician her injuries were likely to be permanent. Her physician did not see her after May, 1948, until a few days prior to the trial in October, 1949. On September 21, 1949, she gave birth to a child. We do not find the evidence to support the claim of the plaintiff that she suffered a concussion of the brain. It is true that her physician testified as to the blow on the head and the swelling resulting therefrom, and later was asked to explain the effect of a concussion of the brain, which he did. He did not, however, testify that plaintiff suffered a concussion of the brain. We do find that there is sufficient evidence of permanency of the injuries shown to authorize that element to be considered by the jury.

As noted, it is claimed by the defendant that the circumstances of the collision, the parties, and the testimony of the police officers inflamed the jury, and that the verdict for $4000 was penal, rather than compensatory. The evidence showed that plaintiff was the wife of Peter F. Roberts, Jr., who operated a branch of the Salvation Army on Broadway in Kansas City; that on the evening in question he had supervised a basket ball game in connection with that institution and afterwards undertook to take home a young man who had participated in the event, and with the plaintiff, her small child, and the young man in question, Mr. Roberts was driving the car on the above mission at the time of the accident. On the other hand, the evidence was that the defendant had, in company with a young lady employee of the office where the defendant was engaged in business, attended a farewell party for another lady employee of his office at the II Pagliaccio Tavern, and there had had three highballs of Scotch whiskey and water. Leaving that party with the same young lady, the defendant was returning westward on 6th Street at the time of the collision. There was testimony on the part of police officers that defendant's face was flushed, eyes bloodshot, speech confused, and that he was intoxicated, but that his choice of words and enunciation were good and he had knowledge of time and place. One of the officers stated that he was acquainted with one of the counsel for plaintiff. From the record before us we cannot say that the circumstances of the collision and the testimony of the police officers were such as to inflame the minds of the jurors, and we feel constrained to limit our consideration of the amount of the verdict to its compensatory aspect.

We are mindful of the changed economic conditions of the present time and of the reduced purchasing power of the dollar. We realize, too, that each case for damages depends upon its own facts and circumstances as to the reasonable amount of recovery, yet in order that there may be some approximate standard or uniformity in similar cases, we should consider the amounts of approved verdicts in cases of similar nature. In the case at bar there is evidence of shock, nervous affliction, pain and suffering. There is further evidence that, to a certain degree, these injuries have continued and will be permanent. There is further evidence that in some of the activities of the plaintiff her injuries interfere. On the other hand, the evidence discloses that there were no fractures or injury to the bones of her body; there was no hospitalization to speak of and no confinement at the home. Under the pleadings and under the instructions of the court the jury were not authorized, if it did, to include any allowance for medical expenses or for loss of wages.

In the recent case of Kulengowski v. Withington, Mo.App., 222 S.W.2d 579 (1949), a verdict of $4500 was held excessive by $1500, where the plaintiff housewife had received bruises and contusions of both knees and legs, and a bruised and wrenched left shoulder, and a wrenched condition of upper and lower arm, contusions of the face, with breaking off of several false teeth, and a wrenched and sprained condition of the lower spine. There was evidence of permanency. The court said in that case that in requiring the remittitur it was giving due consideration to the economic changes in recent years.

In Brooks v. McCray, Mo.App., 145 S.W.2d 985 (1940), a 49 year old woman had recovered $5000 for personal injuries. She complained of injuries to her head, chest and back, nervousness, shock, headaches and eye trouble; she was hospitalized for three or four weeks, in bed for a month, and unable to do housework or participate in running her business; her physician testified that without medical treatment she would be disabled for life. Her claim also included doctor bills. The court required a remittitur of $2000.

We are of the opinion that the evidence in the instant case, most favorable to the plaintiff, would not support a verdict in excess of $3000

Lastly, the defendant asserts that the trial court erred in refusing defendant's Instruction C. That instruction read as follows: "The Court instructs the jury that the plaintiff cannot be allowed as damages any sum for doctor bills or medical expense, nor can any damages be allowed to the plaintiff for loss of earnings, or for any permanent or total disability". The court refused that instruction, but gave the following: "The Court instructs the jury that plaintiff in this case is not asking for damages for loss of wages, medical expense or doctor bills". The general instruction on the measure of damages authorized the jury, if the verdict be for the plaintiff, to assess her damages at such sum as would fairly and reasonably compensate her for her injuries. Defendant argues that by withdrawing the items of loss of wages and medical expense, and refusing to withdraw permanent or total disability, that the court thereby submitted permanent and total disability by implication; that there was not sufficient evidence to authorize recovery for permanent injuries; that had permanent injuries been proved, the jury should have been so advised, and since there was not sufficient evidence for the submission of permanent injuries, then, in fairness, the issue should have been withdrawn from the jury's consideration. We believe, as hereinbefore stated, that there was sufficient evidence to authorize the submission to the jury of the permanency of plaintiff's injuries, although such was not specifically done in plaintiff's instruction.

In Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449, 453, the petition alleged that the injuries were permanent and the evidence supported that allegation. The instruction on the measure of damages authorized the jury, in the event they found for plaintiff, to assess plaintiff's damages at such sum as in their judgment, under all the evidence in the case, "would reasonably compensate her for the injuries received". One of the objections to the instruction was that it submitted to the jury the question of whether plaintiff's injuries were permanent when the evidence did not support it. In view of the supporting evidence of permanency, this court overruled the objection to the instruction.

In Pittan v. Otis Elevator Co., Mo.App., 7 S.W.2d 412, 413, the petition alleged permanency of the injuries claimed, the plaintiff claimed continuation of the injuries at the time of trial and the plaintiff's doctor testified that he thought the plaintiff "might get better, might get well, he might not", and further stated that plaintiff's recovery was a matter of speculation. The trial court refused to instruct the jury that there was no permanent injury proved. The court instructed the jury that in event of a verdict for the plaintiff, it might allow plaintiff damages in such sum as would reasonably compensate him for the injuries sustained. This court held, on appeal, that it was not error to refuse the instruction eliminating permanent injuries and approved the instruction given which "left the whole matter of injuries to the jury, without suggesting that they were permanent". Since, as we have held in this case, not only was the permanency of injuries alleged, but sufficiently supported by proof, it would have been error for the trial court to have given Instruction C, requested by the defendant, specifically disallowing any damages for permanent or total disability.

If the plaintiff, within ten days after the filing of this opinion, shall remit $1000 of said verdict and judgment, the judgment of the trial court, so reduced, will be thereupon affirmed as of the date of the original judgment; otherwise the judgment will stand reversed and the cause remanded to the trial court for the retrial only of the issue of the amount of damages.

All concur.