Summary
In State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, decided in 1942, the Supreme Court of Missouri held that it was not harmless error to give an instruction authorizing permanent damages when not supported by the evidence, although the defendant on appeal did not make any claim that the verdict was excessive.
Summary of this case from State v. DunlapOpinion
No. 38066.
November 12, 1942.
1. CERTIORARI: Negligence: Fire Engine Siren: Failure to Stop: No Conflict. There was no conflict in the opinion of the Court of Appeals approving instructions as to failure to stop immediately when the siren on the fire department motorcar was heard or in the exercise of the highest degree of care could have been heard. The instructions cast no greater duty upon the defendant than the Kansas City ordinance required.
2. CERTIORARI: Damages: Personal Injuries: Evidence Insufficient to Submit Permanency: Conflict. The expert medical testimony did not establish that plaintiff's back injuries, which included fractures and sacroiliac sprains, were permanent, and such injuries may not be considered permanent absent substantial evidence to that effect. That part of the opinion of the Court of Appeals holding that the evidence was sufficient to authorize a recovery for permanent injuries was in conflict with rulings of the Supreme Court.
OPINION OF COURT OF APPEALS QUASHED IN PART.
Charles L. Carr and Watson, Ess, Groner, Barnett Whittaker for relator.
(1) Respondent's instructions cast too great a burden upon appellant and conflict with controlling decisions of the Supreme Court. Oesterreicher v. Grupp, 119 S.W.2d 307; Nagy v. St. Louis Car Co., 37 S.W.2d 513; Hall v. Mfgs' Coal Coke Co., 260 Mo. 351; Smith v. Southern Illinois Missouri Bridge Co., 326 Mo. 109; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Connole v. East St. Louis S. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; State ex rel. Central Coal Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866; Oglesby v. St. Louis-S.F. Ry. Co., 318 Mo. 79, 1 S.W.2d 172; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812. (2) The evidence relied on by respondents and set forth in their opinion to support the submission of permanent injuries is insufficient to support such submission. In holding said evidence sufficient to support the submission of permanent injuries, respondents held contrary to last controlling decisions of this court. Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Weiner v. St. Louis Public Serv. Co., 87 S.W.2d 191; Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112. (3) Respondents, in ruling that the evidence in this case with respect to plaintiff's injuries set forth in respondent's opinion — internal injuries — is of such a nature as to make the permanency apparent to a person of ordinary intelligence — a layman — demonstrates its own error and such ruling is contrary to the very controlling decision of this court relied on by respondents in their opinion and is contrary to the other last controlling decisions of this court referred to under (2) supra. Clark v. Mississippi River Bonne Terre Ry. Co., 324 Mo. 406, 23 S.W.2d 174; See also authorities cited under (2), supra. (4) Under controlling decisions of this court where a defendant complains that an element of damage (permanent injuries here) is improperly included in a plaintiff's instruction (plaintiff's Instruction 5 here) for the reason that there is no substantial evidence upon which to base such submission, such point will be reviewed by the upper court without the necessity of a separate assignment of error directly charging that the verdict is excessive, all contrary to the hybrid opinion of the St. Louis Court of Appeals in the case of Higgins v. St. Louis R. Assn., 221 Mo. App. 837, 97 S.W.2d 892, at first relied on by respondents in their original opinion, but which decision, while still cited by respondents in their modified opinion, is not made the basis of respondents' opinion with respect to plaintiff's Instruction 5. Last controlling decisions of this court contrary to the decision of the St. Louis Court of Appeals in said Higgins case are: Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Weiner v. St. Louis Public Serv. Co., 87 S.W.2d 191; Svehla v. Taxi Owners Assn., Inc., 157 S.W.2d 225.
Henry L. Jost and Roger C. Slaughter for respondent Judges and for plaintiff McEntee.
(1) Plaintiff's given Instruction 1 was properly given because: (a) It correctly states the ordinance duty of defendant's motorman in respect to his management and operation of defendant's street car, and his plain duty under the terms of the ordinance to immediately bring his car to a stop on the approach of a fire department vehicle with siren audibly warning of its approach. Raymore v. K.C. Pub. Serv. Co., 141 S.W.2d 103; Duffy v. K.C. Rys. Co., 217 S.W. 883; Hogan v. Fleming, 218 Mo. App. 172, affirmed 294 S.W. 404, 317 Mo. 524. (b) It correctly instructed the jury that plaintiff driving a fire department automobile in the performance of his duties was entitled to rely on said ordinance, and that it would be observed and obeyed (authorities next, supra). (c) It did not call for a verdict and must be reckoned and construed along with other given instructions for both plaintiff and defendant. (d) The ordinance imposing on defendant's motorman the duty to exercise the highest degree of care in the operation of defendant's street car around and about the approach of a fire department vehicle was valid (authorities under subdivision (a) supra, and agreed to by defendant's given Instruction F.) (2) Plaintiff's given Instruction 2 defining in detail, under the applicable evidence, that a breach of duty imposed by the ordinance on defendant's motorman, if found by the jury to be a fact, was negligence is a proper declaration of the law particularly so when considered along with all the other instructions given at the request of both parties, and in particular in consideration of defendant's given Instruction F. (3) Plaintiff's given Instruction 3 that if the jury found defendant negligent as defined in plaintiff's Instruction 2, and under such negligence, if any, directly injured the plaintiff, if it did, that plaintiff was then entitled to recover notwithstanding that the negligence of another may have combined and concurred with defendant's negligence, if any, to produce the injuries, if any, was proper. Robison v. Floesch Const. Co., 242 S.W. 421; Meadows v. Wabash Ry. Co., 273 S.W. 130, 220 Mo. App. 165; Ballard v. K.C.P. L. Co., 221 Mo. App. 1116, 298 S.W. 131. (4) No single instruction given to the jury is to be determined and ruled solely by itself, but must be taken together with all the other instructions in order to determine whether it be free from error. This, of course, has become academic law in this State and does not warrant citations. Childers v. Ins. Co., 37 S.W.2d 490; Bales v. K.C. Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Haynie v. Jones, 233 Mo. App. 948, 127 S.W.2d 105; Schroeder v. Rawlings, 155 S.W.2d 189. (a) Defendant's given Instruction F is but the complement to all of plaintiff's given instructions and defendant by that given instruction has clarified and made certain any uncertainty or ambiguity, if any existed, in any of the other instructions, Williams v. Guyot, 126 S.W.2d 1137, 344 Mo. 372; Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219, 225 Mo. App. 151. (b) In considering these instructions collectively and as a whole, it should be borne in mind that defendant had testimony that its motorman complied with the ordinance mandate and did bring his car to a complete standstill, but that this testimony is sharply disputed by the plaintiff and other witnesses. This, of course, presented to the jury the credibility of the witnesses and the jury preferred not to believe the defendant's witness, but to believe those produced by plaintiff on this point. Reardon v. St. L. S.F. Ry. Co., 215 Mo. 105. (5) The question whether plaintiff's injuries were permanent or temporary was properly submitted under the pleadings and the evidence to the jury by plaintiff's given Instruction 5. Chapman v. K.C. Rys. Co., 217 S.W. 623; Wilkerson v. Met. St. Ry., 126 Mo. App. 613; Clark v. Rys. Co., 324 Mo. 406, adopting ruling in Wilbur v. Ry. Co., 110 Mo. App. 689. (a) Moreover defendant did not assign error on appeal that the verdict was excessive and must therefore be held to have abandoned that prior complaint in its motion for a new trial. Higgins v. St. L.R. Assn., 231 Mo. App. 837, 97 S.W.2d 892; Henry v. Ill. Cent. R. Co., 3 S.W.2d 1004, 319 Mo. 432. (6) In certiorari to a Court of Appeals based on an alleged conflict with the last and controlling opinion of the Supreme Court, this court will go to the opinion of the Court of Appeals for the facts, and not elsewhere. State ex rel. Greer v. Cox, 274 S.W. 373; State ex rel. Frisco R. v. Reynolds, 289 Mo. 479, 233 S.W. 219; State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84. The right of the Court of Appeals to ascertain and declare the facts, primary and inferential, and the ultimate fact conclusions arrived at by it, upon which it bases its opinion, is within the exclusive province of that court, and will be taken as conclusive in the Supreme Court on a proceeding in certiorari. State ex rel. C. A.R. Co. v. Allen, 291 Mo. 206, 236 S.W. 868; State ex rel. Amusement Co. v. Trimble, 318 Mo. 274, 300 S.W. 1064. The opinion statement that plaintiff's "injuries were of such nature as to make the permanency apparent to a person of ordinary intelligence," and therefore submissible to the jury by plaintiff's Instruction 5, as to its finding as to whether such injuries were temporary or permanent, is a fact statement on the quoted evidence is conclusive and not reviewable here. State ex rel. Fitchner v. Head, 324 Mo. 130, 22 S.W.2d 1045. It is the prerogative of the Court of Appeals to decide a case as it sees proper provided its ruling is not in conflict with a controlling decision of the Supreme Court, this court having held that the Court of Appeals has jurisdiction to decide wrong as well as to decide right. State ex rel. v. Ellison, 216 S.W. 967; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694. The Supreme Court will not quash an opinion of the Court of Appeals until the relator has shown a definite, clear and unmistakable conflict as to a controlling and a governing rule of law between the instant opinion and a controlling decision of this court, State ex rel. Travelers' Indemnity Co. v. Daues, 315 Mo. 22, 285 S.W. 479; State ex rel. Winters v. Trimble, 315 Mo. 1295, 290 S.W. 115, and it is not sufficient for counsel for relator to spin out and present a possible or argumentative conflict. State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756.
This is a certiorari proceeding in which relator seeks to quash the opinion of the Kansas City Court of Appeals in the case of McEntee v. Kansas City Public Service Company, reported in 159 S.W.2d 336.
McEntee obtained a judgment against the Service Company in the sum of $6,500.00, as damages for personal injuries sustained in a collision between a car in which he was riding and a street car operated by the Service Company. The Service Company seeks to quash the opinion on two grounds. First, it is claimed that respondents' opinion holding plaintiff's instructions one, two and three to be proper was in conflict with controlling decisions of this court; and second, that respondents' opinion ruling that the evidence was sufficient to authorize an instruction on permanent damages was in conflict with opinions of this court. We will dispose of these questions in the order stated.
To understand the first point it will be necessary to briefly state the circumstances of the collision which caused McEntee's injuries. McEntee was a member of the Kansas City fire department. Immediately prior to the collision, and in response to a fire call, he and an assistant fire chief were driving eastwardly on Thirty-first street with the siren sounding. As they crossed the intersection of Thirty-first street and Flora avenue McEntee swerved his car to avoid a collision with another car moving into the intersection, and when he reached a point beyond the intersection his car collided with a west bound street car. An ordinance of Kansas City provides as follows:
"`The operator of every street car shall immediately stop such car clear of any intersection and keep it in such position until the authorized emergency vehicle . . . shall have passed, . . .'"
The ordinance specified fire department vehicles to be of the emergency class. With reference to the collision it will be sufficient to state here that plaintiff's evidence tended to show that the street car in question was moving westwardly at the time of the collision and did not stop. On the other hand, on part of the Service Company it was shown that the operator of the street car complied with the ordinance and the street car was standing still at the time of the collision. Thus a question of fact was presented for the jury. The court gave instructions numbers one, two and three at plaintiff's request. It is relator's contention that the instructions imposed a greater duty upon the defendant than the law required and such ruling conflicted with certain opinions of this court which will be hereinafter discussed. Note what relator says in his brief:
". . . said Instructions Nos. 1, 2, and 3, each and all of them, respectively, improperly impose an erroneous and prejudicial additional and absolute duty upon defendant's street car operator to observe and obey the Kansas City Traffic Ordinance and avoid the accident in question without limiting said street car operator's duty to the exercise of the highest degree of care and without limiting, or even submitting, negligence on the part of the street car operator with respect to any failure on his part to exercise the highest degree of care."
The alleged vice in the instructions can be illustrated by a quoting from instruction two. This instruction, after submitting a number of preliminary questions, concluded with the following:
"`. . . that a siren on said automobile and motor car (if so) was sounding audibly, so that (if you so find) the servant and operator of defendant's street car mentioned in evidence actually heard, or in the exercise of the highest degree of care on his part could have [430] heard said siren sounding (if it was sounding), and if such are your findings and you further find from the evidence that defendant's servant and agent in charge of and operating said street car did not immediately bring the same to a stop, then defendant was negligent in the operation of said street car.'"
Relator insists that respondents' opinion conflicts with a number of our opinions, especially Oesterreicher v. Grupp, 119 S.W.2d 307, l.c. 308, 309 (1, 2). In that case an instruction was condemned because it placed a greater duty upon defendant than the law required. The portion of the instruction condemned reads as follows:
"`The Court instructs the jury that under the law it was the duty of the plaintiff at the time and place described in the evidence to exercise the highest degree of care in the operation of his motorcycle and avoid colliding with defendant's automobile.'"
In that case there was a verdict for the defendant and the plaintiff appealed. The defendant conceded and this court held that the instruction did cast too great a burden upon the operator of the motorcycle. The case, however, is not in point here. No such duty was cast upon the Service Company by the questioned instructions. The instructions informed the jury that it was the duty of the operator of a street car to exercise the highest degree of care to discover the car of the fire department. That duty was imposed by ordinance. The instructions further informed the jury that it was the duty of the driver of the street car to immediately bring the street car to a stop after discovering a fire department vehicle. That duty was also imposed by ordinance. The discovery of a fire department vehicle is treated the same as the discovery of the red sign on "stop" and "go" signals used at busy street intersections. Under the ordinance the question of whether it is safe to proceed under such circumstances is not left to the operator of a street car. In Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404, cited by relator, this court was dealing with a situation where there was no absolute duty on part of the street car operator to stop the car. That fact renders the case inapplicable to the present situation. As we see it the instructions cast no greater duty upon the defendant Service Company than the ordinance required. The operator of the street car understood that duty and he testified that he noticed the fire department car and immediately brought his street car to a stop. The instructions did not impose the duty upon the street car operator to avoid the collision as did the instruction in the Oesterreicher case. They authorized a verdict for the defendant if the jury found that the operator of the street car did comply with the ordinance. There was no plea or contention that by some unforeseen event the operator of the street car was unable to stop. We need not discuss the other cases cited by relator as they do not apply to the situation we have before us. Some of the other cases are, Nagy v. St. Louis Car Co., 37 S.W.2d 513, l.c. 514, 515 (1-2); State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527, l.c. 528, 529 (6); Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404. We hold that the respondents' opinion on this point does not conflict with any ruling made by this court in the cases cited by relator.
Now as to the ruling that the evidence justified an instruction authorizing the jury to find that McEntee had sustained permanent injuries. The applicable rule often approved will be found in Weiner v. St. Louis Public Service Co., 87 S.W.2d 191, l.c. 192 (1). It reads as follows:
"`To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.'"
Relator cited the Weiner case, supra, and also Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173; Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112. Relator contends that respondents' opinion is in conflict with all of the above cases. See 159 S.W.2d 345 (8), where respondents in passing on this question had the following to say:
"Defendant in its specification No. 5 complains of submission for permanent injuries. We have set forth, supra, the evidence touching injuries received by plaintiff. We conclude that the evidence shows that the injuries were of such a nature as to make the permanency apparent to a person of ordinary intelligence and, therefore, [431] the submission of the issue did not constitute error. Clark v. Mississippi River B.T. Railway Co., 324 Mo. 406, 23 S.W.2d 174."
In the Clark case cited in respondents' opinion this court held there was no evidence to justify a finding of permanent injuries. In commenting on this question the court, at page 179 of 23 S.W. 2d, quoted the following from Wilbur v. Ry. Co., 110 Mo. App. 689, 85 S.W. 671, l.c. 673:
"`Notwithstanding the adverse opinion of his medical experts had his injuries themselves been of such a nature as to make their permanency apparent to a person of ordinary intelligence, the plaintiff would have been entitled to have this fact considered by the jury as an element of damage. But in the very nature of his injuries their duration was necessarily a matter of pure guesswork.'"
We find no fault with the declaration of law as announced in respondents' opinion. But the injuries of McEntee, as disclosed by the evidence quoted in the opinion, were not of such a nature as to make the permanency apparent to a person of ordinary intelligence. True McEntee suffered a fracture of the ilium, being the large bone that forms a support of the body. It was fractured at the point where it joins the sacrum and involved the sacroiliac joint on the right side. But as will be seen by a careful reading of the evidence set forth in respondents' opinion (159 S.W.2d l.c. 340, 341) Dr. Wilmot Gist, who treated McEntee and testified for him, did not say that the injuries were permanent. We quote the evidence most favorable to McEntee upon this point:
"`Q. Do you have an opinion as to what his prospect is for the future? A. It is very difficult to say in some of these back injuries, because some never get well at all; they carry them for an indefinite length of time, and very frequently injuries of this kind will go for several years or more. In the particular instance, where he had a fracture that enters the sacroiliac joint, which is always on a constant strain, even from standing up, it is very foolish to say it will be well in two or twenty years, because I don't know just what is going to happen.
"`Q. Have you any opinion as to whether there is any reason to think he will be well in a short period of time? A. No, I don't.
"`Q. I mean, do you have an opinion? A. I don't think he will be well in a short time, due to the nature of the injuries and the severity of the injuries of this particular person — for instance, the sacroiliac joint and back, I think with an undue strain on them, such as lifting, and doing manual labor, or anything like that, it will have a tendency to recur.'"
That evidence, and in fact all the evidence quoted in respondents' opinion, does not meet the requirement of the rule as set forth in the above cases. Under those rulings the evidence was insufficient to prove with reasonable certainty that McEntee sustained a permanent injury. If the doctors who were experts on this question and who treated plaintiff would not say that the injuries were permanent then certainly a jury composed of laymen would not be justified in making such a finding. We can visualize a situation where despite evidence to the contrary by medical experts an injury may be considered permanent, but this is not such a case. We desire, however, to call attention to the opinion in the Plank case, supra, and observe that in that case the quoted evidence disclosed that a doctor testified the injuries sustained by the plaintiff would definitely shorten plaintiff's life. That fact seems to have been overlooked when the question of whether the injuries were permanent was considered. See Plank v. R.J. Brown Petroleum Co., 61 S.W.2d 328, l.c. 333, 334, 332 Mo. 1150. Also, the observation made in that case, that even if plaintiff was then afflicted with pulmonary tuberculosis that would not necessarily mean that plaintiff sustained a permanent injury, was obiter. Such fact was not in the case. It is not common knowledge that fractures of bones and sacroiliac sprains are permanent injuries. In some such cases the injuries are of a nature that the medical experts consider the condition permanent. See Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, l.c. 910 (26). In other cases of that nature the doctors do not consider the injuries permanent. See Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112, l.c. 113 (1). So we conclude that as a general rule fractures of bones and involvement of the sacroiliac joint are not injuries that may be considered permanent absent substantial evidence to that effect. That portion of respondents' opinion holding that the evidence was sufficient to authorize a [432] recovery for permanent injuries conflicts with the rulings made in the cases discussed.
Respondents' opinion also mentioned that the Service Company had not made any claim that the verdict was excessive. A ruling made by the St. Louis Court of Appeals in the case of Higgins v. Terminal R. Assn. of St. Louis, 231 Mo. App. 837, 97 S.W.2d 892, l.c. 897 (7), was quoted as authority that unless such a point was made an instruction authorizing permanent damages when not supported by evidence was harmless error. Relator and respondents both briefed this point. Respondents in their opinion did not, however, make any definite ruling on this question. The writer of this opinion has not discovered any case where the point was ruled directly by this court. However, in many cases in this court as well as in the Courts of Appeals the question of the propriety of an instruction upon permanent damages has been considered without any mention being made of whether the party had also complained of the verdict being excessive. See Derschow v. St. Louis Public Service Company and Weiner v. St. Louis Public Service Co., supra, and the following cases from the courts of appeals: Putnam v. Unionville Granite Works, 122 S.W.2d (K.C.) 389; Farrell v. Kroger Grocer Baking Co., 71 S.W.2d (St. L.) 1076; Chilcutt v. LeClair, 119 S.W.2d (Spr.) 1. Note that the St. Louis Court of Appeals in a case subsequent to the Higgins case reversed a judgment where an ininstruction was given authorizing permanent damages, absent evidence to sustain the same, and no mention was made of an assignment of error that the verdict was excessive. See Svehla v. Taxi Owners Assn., 157 S.W.2d 225, l.c. 228 (7). In the Higgins case the judgment was reversed and the cause remanded on other grounds. The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule.
The opinion of respondents in so far as it holds the evidence to be sufficient to sustain damages for permanent injuries is hereby quashed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All of the judges concur.