*1 grounds already properly out. The court refused upon other set trial appellant. for direct verdict to 1,No. assignment next instruction
Appellant’s error is that (1) request of for the reasons given respondent, at the is erroneous to appellant employed respondent no evidence that that there was (2) capital appellant’s company; that the instruc stock sell required to company the title to the real estate owned tion good; per shown to be that is further erroneous in recovery mitting respondent of a commission if found and brought appellant ready, willing and purchaser who financially purchase capital already We able to all stock. have ruling motion for a answered these contentions directed They verdict. are devoid of merit.
Appellant assigns giving of No. 2 also as error the instruction request respondent. re- at the He contends that this instruction found in No. For peats errors instruction 1. the same reasons assignment of error is overruled. assignment giving
His of error is the last instruction No. jury they 8. This instruction told the that found for respondent, $10,000. should be for Appellant then verdict contends there support already was no evidence this instruction. We have stated appellant respondent that 'respondent that both testified $50,000 all the- for. undisputed to receive over stock sold people agreed evidence pay $60,000 was that Winternitz for capital Therefore, the evidence respondent stock. shows that $10,000 assignment entitled to and their commission is without merit. judgment of It follows that the the trial court should be affirmed. Affirmed; It so ordered. all concur. Boulos, Respondent, v. Kansas
Adele Company, Public Service a Corporation, Appellant, No. S. W. (2d) 41338 223 446. September One,
Division 1949. Rehearing Motion Overruled, or to Transfer Banc October *2 & Carr, James, Sogseit, Trippe, Depping,
Charles L. D. Souts J. appellant.- James *3 Swofford,
Ben W. N. B. Fischer' B. and Laurence Smith re- spondent. *4 OSDOL, personal Upon
VAN injury. C. Action trial plaintiff by jury perfected .$4500 awarded and defendant appeal its ensuing judgment City from the Kansas Court Appeals. charged carelessly Plaintiff had defendant’s bus “was so and negligently operated, by controlled, maintained the defend ant, servant, agent, employee, its that to lurch caused jerk sudden, in a violent, and unusual causing manner plaintiff violently this to be thrown to the floor.” City In Appeals, the Kansas Court of the defendant-appellant con- (and tended herein contends), (1) erroneously the trial court was submitting negligence by inconsistent in specific 1, Instruction No. additionally jury authorizing negligence to infer under the ipsa loquitur by res doctrine 2. Defendant-appellant Instruction No. contended, further (2) support the evidence did not that the sub- particular (the operator bus) mission a caused the bus lurch; (3) testimony of that the movement of the bus consisted in a manner improper prejudicial of conclusions elicited leading, suggestive argumentative questions; and (4) erroneously photograph admitted into evidence. And finally contended, defendant-appellant jury’s ($4500) award was excessive. case, City reviewing Appeals, the Kansas Court ma
jority opinion,
erroneously
decided
case was
submitted to
jury
specific negligence
upon
negligence
“both
under the
loquitur theory,”
ipsa
res
and reversed aiid remanded.
Boulos
Kansas
Public Service
769 ‘‘ you find from jury that if and believe The court instructs through its and defendant and 'the evidence charge operating of and bus mentioned servant upon passenger and which and in evidence was described - - jerk violently suddenly and to lurch and caused same so, manner, if and and in unusual and violent that as direct -- plaintiff’s body caused to be result thereof thrown - - - injured and result onto the floor of said bus she was as a thereof, you (if so, you if then are such facts be instructed that' true) lieve them to be are sufficient circumstantial evidence jury negligent infer which that the and .defendant you you may and so find find believe from evidence unless other and from all the and facts circumstances evidence that said (cid:127) sudden, violent, j.erk lurch, any, and unusual of ’’ negligence said bus was not due to the defendant. defendant-appellant As the trial stated contends court giving Defendant-appellant erred Instructions Nos. and 2. 1 as part” serts No. “first 2 Instruction 1 Instruction No. specific negligence, part” submitted and the “latter Instruction 2 jury negligence No. authorizes infer under the doctrine loquitur. ipsa Plaintiff-respondent, hand, res on the other contends specific Nó. Instruction 1 does not submit negligence, 2 properly negligence Instruction No. authorized the inference of ipsa loquitur 1, under the res doctrine. Did Instruction No. part” 2,
the “first specific Instruction No. negligence? submit so, If was “no room for” and general there it was error to submit negligence jury they or advise the negligence authorized to infer loquitur’ ipsa Berry under res doctrine. v. Kansas Public Co., 474, 825; Service 343 Mo. W. 2d 121 S. Conduitt v. Trenton 133, Gas & Electric 326 Mo. W. 31 S. 2d
'In general
principle
on
ipsa loquitur
the doctrine of res
does
apply except
(a)
not
when
resulting
injury
the occurrence
ordinarily
such as does'
if'
happen
charge
not
care;
those
use due
(b) the
involved were
management
under the
instrumentalities
(e)
control of
defendant;
possesses superior
defendant
knowledge or-
means
as to
information
the cause of the occurrence.
McCloskey Koplar,
527,
v.
557;
329 Mo.
46 W.
S.
2d
Charlton v.
Lovelace,
364,
13;
173 S.
2dW.
Welch v.
instructions filed or agents submit, particular or of negligent, or as definite acts conduct justify would in circumstances which employees or of defendants acts circumstances alleged or in such the conclusions the submitted resulting injury in negligent. acts or conduct were In these cases the instance, of the that, so in each mere statement simple hypothesized causing pleaded in the or injuries acts or conduct n in words. nearly specific expressed could be situations was as be pleadings submissions in these cases were held to those Stolovey Fleming, 623, Mo. 8 W. specific negligence. In v. 328 S. 832, allegation petition of the stated wherein defendants’ 2d negligent, is, “in “operators charge of said car” were that start upon step trying and ing plaintiff car one foot while the had get like effect the cases of Lam passenger.” to thereon as a Of are (while 952, plaintiff 547 “in Wells, mert v. 321 Mo. 13 S. W. 2d ivas leaving plaintiff stepped act of said car and before had therefrom charge agents and servants of the defendant street, onto the - - - operating negligently permitted said car caused and of and Duggan Co., v. Public Mo. start”); App., car to Louis Service said St. (“defendant, agents W. 2d and servants then and 56 S. 626 its there plaintiff car, was in the in control said while act of jerk, violent, lurch alighting, jump caused the said car to in a any sudden, manner, warning”); and unusual without Mendenhall (“when Co., Springfield App., Traction Mo. 26 S. W. 2d v. 50 she - pay him got attempted pay she the motorman and did on paid him and before but the moment that she had time to turn seat, suddenly, a he carelessly, negligently around and find jerk”); car with up street a Hoeller v. St. Louis started said Public Co., 7 App., plaintiff S. W. 2d Service Mo. was in 199 [while door, (as proceeding toward the exit streetcar the act result operator streetcar) of” the negligence “of the “was of the caused sudden, brought violent unusual to be Grimm stop”]. 232 Co., Sup., 676, petition Mo. S. W. Printing v. Globe stated ‘‘ negligence on of the injured account plaintiff defendant charge suddenly starting elevator operator in or its said start, while the elevator, permitting or in deceased was placing it, warning machinery without deceased.” In the Hughes Lines, East St. Louis v. 149 W. case S. alleged that, through 440, petition defendant’s 2d “in motorbus,” the motorbus “was caused to charge of the said and did turn.” sudden, violent and unusual In Miller execute United 528, 1045, 134 App. S. W. petition 155 Mo. Louis, of St. Rys. Co. carelessly managed negligently and charged the motorman “so car he suffered the same to collided permitted ran said that wagon.” v. Mc- Spears with a team of horses and In State ex rel. 68, Cullen, 686, paragraph 2d three of the 357 Mo. S. W. charged pleaded petition, effect, operator negligent, “violently situation, in he the front end the street car drove plaintiff’s into rear end of automobile.” In the case of Jones W. 2d v. Central Oil did not S. rely ipsa loquitur res intend to on the doctrine submitted his case by hypothesizing “negligently caused, in effect that driver defendant’s (said truck) permitted transport into, allowed and to run strike” and collide the rear end vehicle in such a hypothesized point justify situation factual as Avould out and “guiding” neg- conclusion the of the driver in conduct the truck was ligent. from
These eases differ cases wherein there is unusual occurrence *8 circumstances, attending plaintiff’s injury, with the cause of physical justify an kind of negligence sufficient to inference of some for which responsible, point defendant should be held but insufficient to specific negligent omission, legal the act or the injury. cause of the In case, position the it seems was not in a instant to see know, or to and her not know operator she did what the did, do, violently of the bus or failed to which caused the bus to lurch. operator’s or omission causing act bus to lurch was neither clearly by plaintiff. submitted nor shown The circumstance of the ordinarily happen occurrence as would charge was such not if in those submitting were in the due care. Plaintiff exercise her case in upon reliance the violent and sudden lurch of bus, which bus operated agent controlled charge. defendant’s in She position bus; could show and her operator’s submit in actual knowledge position; or of her (the constructive lurch sudden something operator negligently do); result of did or did not her; the effect of the sudden lurch but it seems she did not allege, know—at least did not nor she did show and submit—-what operator negligently did or failed to do in causing the bus to what, lurch. And she did if any, it seems not know situation con- agent fronted the which have defendant’s actuated him to some- how cause the unusual movement of bus. Was he constrained to striking to avoid slam on the brakes down a or pedestrian, to avoid colliding And, so, vehicle? another was this because he had negligently look out? failed to Or the unusual movement due to abruptly negligence applying his in too brakes, or carelessly manipulating gears? defendant-appellant
As stated contends the Instruction No. 1 sub- specific negligence, mits as stated defendant-appellant further specific submission, negligence, contends as was erroneous 772 hypothesis said, effect, supports the
because, no evidence it is bus” was operating said agent charge “in particular reasonable The inference was causing the bus to lurch. actor operat charge “in circumstances that the defendant’s as to the bus so operated manner ing bus” somehow or in some said of and was, fact, in control the unusual movement—he occasion the bus agent caused bus; plaintiff submitted such operating the of the violently submission suddenly lurch. But such believe, char insufficient, yet we agent as the actor was particular Bergfeld v. negligence. specific as that of the submission acterize 106. City Rys. Co., 654, 227 W. S. Kansas Ry. 435, Co., Mo. Metropolitan v. Street In the case of Price per caused and alleged “negligently 932,W. it was defendant S. riding to come in plaintiff was the train on which mitted ’’ charge was said to be another train. This violent collision with W. (220 page Mo. at 119 S. negligence. 454, the court general Said negligent averred a collision 937), petition “Had the page was occa trains, proceeded to state that such collision and then two operation car, negligence gripman in the of the of the sioned operation train, and negligence of conductor in the - - negligent they or them had been pointed out wherein either of negligence.” (Our italics.) specific been then there would have City Rys. Co., supra, page 665, 285 Mo. at Bergfeld v. Kansas allege specific negligence, said, “In order to page W. at it was S. only case, be an averment as to said in the Price there must not negligence complained of, but particular servants whose them, pointed wherein or either of have been they, must also be out City Co., v. Public Service negligent.” See also Semler Kansas Public 197; 196 S. W. 2d Jones Kansas Service *9 W. Semler case the court App. 236 Mo. 155 S. 2d the by adversely proof contention that his ruled defendant’s by availing of the inference authorized the deprived was of himself doctrine; that, ipsa loquitur although'plaintiff’s the court said res making occasion for the motorman evidence establish the went to operation path of a motor vehicle stop sudden was the across the the streetcar, “plaintiff immediately in of the defendant’s did and front prove specific negligent go attempt and the act of not further de proper (such reversing a maintain a lookout or fendant as failure to emergency brake) causing applying an the street car instead of the stop.” (Our italics.) and violent to come to such a sudden And car Co., Belding supra. v. St. Louis Public Service again see No. 1 was a conclusions Instruction not submission We draw the ipsa loquitur and inference under the res negligence, specific of by permissible. Instruction No. was authorized doctrine plaintiff’s. of evidence the trial (3) judge the conclusion At had case been made the view submissible not “on the expressed unusual vio- of the bus was whether the movement question of to recall granted was leave plaintiff asked and Thereupon, lent.” intelligent an Rose, Rose, stand. daughter, witness plaintiff’s during colloquy young woman, present in the courtroom had been sufficiency concerning counsel of judge trial between the interrogation Upon showing of an movement of the bus. unusual follows, questions as plaintiff’s answered counsel on “Q. already happened there You have described what you bus, I like to have whether or not mo- and would state falling immediately preceding your tion of that bus mother’s you every experienced day riding busses, a usual motion as - - - very or A. unusual. was it unusual motion! It - Q. you Had ever of mo- personally kind observed tion, was, had, A. as before? I but it wasn’t such quite jar Q. easy much a as this one was. Was it violent - - - say violent, motion A. I bus ? would it was sud- den stop.” questioning permitted objections
The
over
defendant on
grounds
questions
“prejudicial
suggestive
leading,
were
argumentative,
province
jury.”
it invades the
of the
questions
generally
The
alternative,
were
in the
form
not so
Although
framed as to indicate the desired answer.
the wit
ness
answer, yet, looking
have known the desired
the effect
interrogation
of the
from that standpoint,
the answers were con
testimony
sistent
her own former
of the
movement
bus.
stated,
formerly
As
“suddenly
had
testified the bus
came to a
stop.”
daughter’s statement,
testimony
sudden
and the
physical
of the
effect
passengers,
movement of
bus
especially plaintiff, tends to show the
movement was
unusual char
Compare Meyers
acter.
Wells, Mo.
Sup.,
774 appeared plaintiff as she representation, portrayal a correct inas plaintiff injured. photograph discloses the time she was The A de heavy weight. witness gbod and of rather apparent health which, injury, after “fairly before her plaintiff plump” scribed as weight “an lot of according witness, plaintiff lost excessive - weighed 170 very Plaintiff testified she looked ill to me.” weighs trial) pounds (at the time of injured, when now 151% judge in of the trial pounds. Much must be left to the discretion determining admissibility photographs. photographs is said It physical condi may showing person’s a admitted into evidence quite they particular time, relevant, tion at a when the evidence is Hoyt objects. be introduced to the condition of inanimate show Evidence, Chicago City App. 361; S., 32 J. R. Ill. C. § p. nearly years intervening between plaintiff’s 614. The three life injury had not photograph plaintiff’s the time the wrought any was taken and verity change plaintiff’s appearance, substantial given testimony good to the that her health was until she was injured. testimony injury weight prior The of her health and fairly a photograph plaintiff bears out the was correct likeness testimony injured. considering when she And of her health was weight injured, photograph when we the admission of the believe hardly could prejudicial. Lackey be held v. Missouri & Kansas Inter Ry. Co., urban S. W. 807.
(5) We will consider the evidence of the nature extent plaintiff’s injuries standpoint from a plaintiff. favorable to She years age was 55 injured. when Her health good, was “worked every day my children, take care of the house.” She suf a fall, immediately fered severe pain felt in her back. She was by treated a physician following day, and was confined to her bed at home for about two weeks. For some months thereafter she regularly was unable to do her duties as a seamstress, nor was she able to continue her full duties as housewife. operated She had sewing feet, machine “with her Although knees and hands.” experienced pain, she able regularly (with to work some over time) from late August November 1944 to 1945; late since that time she has not accept been able to employment. She had earned the approximate average of a week, $25 after deductions. testimony of a support tends claim vaginal .she suffered bleeding within days.” “three or four A physician, answering hypothetical question, was of opinion such bleeding functional “probably precipitated” injury. a bleeding Such caused hospitalized to be in 1946 and 1947
on two occasions for a total days. of 23 She operated on trouble, operation being described a physician as dilation curettage. Following further irradiation treatment bleeding ceased, had although there is probability some bleeding will recur. *11 years plaintiff physical For condi some has had osteoarthritis —a painfully tion which not manifest until severe become experienced. fall or trauma fell and pain is She suffered when she painful. physician spasm her back A found muscle continues right bending the lower back. The of the back from to left twenty-five thirty involving limited per cent. Motions the lumbar spine region “dizzy painful. forgetful and sacral are She is has spells.” stated, weight. As she has lost Plaintiff’s testi get fied her mother up could not and walk “like she used to - - - help get long we have to her up, can’t sit too lies most down of the time.” plaintiff’s injuries justify
We believe that, award excess of even ($2850), Taylor before remittitur v. Terminal R. Ass’n. Louis,
St. S. W. 2d 944, defendant-appellant. cited Taylor caise, In plaintiff’s weekly earnings prior $14 injury his per thereafter, he was able to earn $55 month al- though it was a reasonable inference he would suffer some loss earnings in ease, although future. our there was no direct permanency evidence of injury, support there is for the inference plaintiff will not operate hereafter be able to a machine—this to- gether inability readily her speak English practically inca- pacitates income-earning her from all employment. .plaintiff And injuries the instant case did apparently not suffer more plaintiffs serious nature as in Webb v. Missouri-Kansas-Texas R. 394, 116, S. W. 2d 27 and other plain- cases cited tiff-respondent. Having regard uniformity (as awards well conditions), as for economic say we are unable to the verdict was ex- any cessive such substantial justify amount as would this court’s interference. judgment should be affirmed. Bradley Dalton, GC.,
It is so ordered. concur. foregoing PER CURIAM: The opinion by C., is Osdol, Van adopted opinion judges of the court. All the concur. Gladys Guy E. Respondent, A. Thompson, Trustee in Willsie,
Bankruptcy of the Missouri Corporation, Pacific Railroad, Appellant, No. 40949 223 (2d) S. W. 458. Banc,
Court en October