*1 63. Hоlding, do, as we plaintiffs cases relied on are in point, general we must decide negligence, this ease on the law of forth, applicable principles which we have heretofore set herein. Under principles, those well-settled must hold no _we of defendant was shown. negligent
How can be said that simply defendant was when he being did every day? what is done all over the land did what He any reasonably prudent man do would under the same or similar promptly deposited circumstances—he the check in his own bank with- very in a day short time on he hold, received it. To on the facts in case, this negligent that defendant was would in establish rule this State that would to tremendous lead confusion. It is well known- that tax collectors accept, purpose for the tax payments, checks drawn on numerous banks within their districts. Some of such banks are a . considerable distance from the collector’s office. Under such plaintiffs rule for, contend tax collectors the State would be compelled, self-protection, accept to refuse to the checks of thou- sands taxpayers who customarily pay their taxes checks. All taxpayers required such go would be procure banks and cash bank pay taxes, or, notes with which to their if tax collectors de- taxpayers checks, sired accommodate by accepting their the collec- tors, .protect damages, required, themselves from would be especially larger messengers hire cities, go extra to the drawee banks there procure the cash with pay which to the taxes. Such a rule wholly impracticable would lead to absurd result and be in this day modern a vast of financial when amount business is transacted through the medium of cheeks. herein, the facts court sustaining
On we hold did not err judgment Hughes, defendant’s demurrer. The is therefore affirmed. J., Anderson, J., P. concur. Respondent. Boyce, Appellant, Donnellan, v. Keene Sadler
James S. W. 120. Appeals. Opinion February 2, filed St. Louis Court 1943. Rehearing
Appellant’s February 19, for a Overruled 1943. Motion *3 Frank E. Mathews appellant. for for Lange respondent.
Wilbur C. and Morton K. Schwartz *4 personal for SUTTON; damages recover C. This an action to injuries 'the deroadment by plaintiff the result of sustained resulted trial, jury, with a riding. in he The which was automobile accordingly, and Judgment given was in a for defendant. verdict appeals. 1940, he was that, August on alleges petition in his Plaintiff operated and being driven in an automobile riding passenger as a County, Louis highway 66 in along No. St. defendant over roadway highway negligently ran off the and that defendant and into and out of ditch and wall, thereby directly into brick causing plaintiff injuries to sustain the for which he sues.
Defendant’s general answer is a denial.
There persons were four in the automobile the time acci- Defendant driving dent. was the automobile. Sol was Gross seated her. beside Plaintiff right was seated on the R. Johnson James on left the rear seat. was unmarried at that time. Defendant parties The all were in the employ of Philip Company. Morris Defendant, who then Sadler, employed was Miss was stenographer. as a Plaintiff, Johnson and Gross were salesmen.
Prior to the accident the parties agreed arranged had go to somewhere—nowhere particular,. Gross went Johnson’s home. Plaintiff arrived'about noon. Gross arrived about one or two o’clock in the afternoon. high- Plaintiff had two one or balls with Johnson that afternoon. left Gross the Johnson home to get Miss Sadler returned with her about four o’clock. Miss Sadler had one drink. Plaintiff had a drink after Sadler ar- Miss agreed They rived. all go somewhere and drove from the Johnson home Bill place. Merritt’s Gross drove automobile. It was his automobile. On way they place stopped Merritt’s a while place. at Busch’s Miss had a Sadler dinner date with Gross. She his was date. At the party Merritt’s had and beer. place sandwiches leaving Upon place they filling Merritt’s drove to station for gas.' Upon leaving filling station took drove highway westward place on 66 a distanсe of about seven miles the n accident. Defendant testified that she took wheel because Gross had been driving hand; highball too fast was with a that she driving his got he out automobile and asked him If she could drive and said she could. Defendant an experienced was driver. There is no she contention that was intoxicated. that she The witnesses testified duly sober and evidences The auto- showed no of intoxication. large Mercury. highway top was a Ford mobile down. The on which defendant was at the accident was time highway. concrete four-lane At the time the automobile left the road- way passing going she was another direction. automobile the same right. passing on the lane from She She left the second the left in turning testified that in wheels steering wheel passing the other automobile the locked so she went to control the automobile and it into was unable highway. left side of the or south Plaintiff testified defendant had been *5 going road; miles it west from seven ten before went off the that to speed seventy- miles at a she was this seven or ten between hour; speed that he her twо and miles an warned of her eighty five n or had the automobile responded three that that she under times; she worry; Johnson thought control and to that warned her' and he too; speed did that she did not Gross decrease her after he warned her; that after he last her possibly warned the automobile traveled a road; mile or two before it forty off went that the automobile traveled fifty yards, something that, began like from the time it go southwardly in a finally road; direction until it ran off the that highway along there was a ditch south side about two and eight wide; half or three feet and or ten feet deep that automo- angled highway ditch; ran into bile across into the that it ditch, it came a side road that was above the until raised and hit he was when automobile this side road thrown out on right-hand pile onto a side the automobile rocks five or’six feet automobile, path from the that the next he saw of yards against automobile it in the up was about one hundred down field being constructed; of a that the foundation house that was auto- roadway it left the fifteen mobile traveled in ditch after ten or yards; intоxicated; that no in the automobile was that he had one place. Merritt’s drink or two Johnson’s drink at filling pulled Johnson that station testified as Miss Sadler out speed; that immediately she at an excessive rate started seventy-five hour; going seventy or an that the automobile was miles times; next he or three probably told her to slow down two thing the road down the em- going he knew the autmobile was off ditch, country he was bankment when it hit the lane into against came to rest the foundation thrown out and the automobile go highway; when the automobile startеd off down the that it; that road defendant said she couldn’t steer that she screamed out frightened; he knew she it; that that she steer that she was couldn’t it; she automobile; control that that she couldn’t couldn’t steer the automobile; that suddenly she couldn’t steer the screamed that that when Miss Sadler gradually; the left rather automobile veered to reached over and tried automobile Gross said she steer the couldn’t her; said she couldn’t helping was that when she help her, he highway. it steer the automobile left driving too nothing that was said to-her about testified
Defendant because steering wheel was locked fast; sure that the that she was pass turned automobile turn; all of sudden she wouldn’t back tried to the automobile when she turn automobile and another hour fifty going miles it; about turn she she couldn’t once because the automobile brakes on at put afraid to wheel; where that from over, tried to turn the might Gross turn foundation slab, highway, off off the went yards; she wasn’t or 100 feet building probably about bothered distance, she was that what bothered about the be- locked steering wheel automobile; shе knew stopping wouldn’t and the driving cause she was
69 turn, locked; and it have must been that she could not be sure as to the highest speed wheel, she attained after she took the but that she was high sure that it not as seventy per hour; was miles that it was not higher hour; sixty per than naturally miles that she on put her foot the pass accelerator automobile, other possibly the and that she sixty-five going was per passing automobile; miles hour in the other that down; as soon as she found the wheel not would steer she slowed immediately that she her took foot оff the accelerator it on and put brake; the that apply she did not the brakes full force at first be- might cause she felt that she over; ap- turn the automobile she that plied gradually; the point brakes that distance from where she found that point the wheel did not steer to the where the auto- mobile went off the road into the ditch was half the across distance the road running that, words, and angle; shoulder at an in other the automobile traveled about seventy feet after the wheel would steer until it traveling went off the road; that the automobile was forty-five about highway; miles fifty per hour when it left the that when going she knew that the wheel steering was locked.she fifty-five about per hour; miles that the road the automobile off went southwest; down into up traveling other side on thought that she it hit the left road that crosses the ditch then the ditch foundation; and traveled across the field and hit the from the time the gear locked until the time the automobile building hit the she trying stop automobile; that she was always trying stop it; finally .when hit the automobile the foun- dation it was traveling ten hour; or fifteen miles an that the distance from place where the automobile went off the road to the foun- dation was 150 feet; place about that the distance from the where place wheel locked road and the where the auto- mobile sixty went off the seventy road was about feet. n gave The court jury to the instruction No. 1 at the instance of plaintiff, as follows: ‘‘The Court jury instructs the defendant, was the duty operation in degree highest to exercise the automobile, care, and to prudent drive same in a careful and manner at speеd rate of endanger any person, so as not to the life or limb of you and if defendant, find from the evidence that the at the time and place mentioned evidence, operated drove and automobile at dangerous excessive and speed speed at a rate which endangered defendant, the life plaintiff, or limb then the in so operating dangerous speed, the automobile at a and excessive rate of was guilty negligence, you if find further and believe from evidence that injured proximate as a direct and .result such defendant, your on then part verdict will though you may be favor the plaintiff, and this is true even also find di- said automobile rectly injuries.” contributed to cause gave No. court instruction instance of defendant, as follows: you if find
“The Court instructs from the evidence that at all times herein mentioned the defendant was the exercise highest degree operation care in the evidence, Mercury automobile mentioned and that *7 driving westwardly and that Highway said automobile on No. 66 highway turned the as she said automobile said she on left pass of said car towards her another automobile travel- wheels ing highway in the same direction on said and that while the wheels- were turned to the left the of said automobile wheel sud- denly locked, unexpectedly by and that reason and thereof-the de- fendant was unable steer or control said automobile turn the- or right, her rah thereof back to and said wheels off thereof, highway and into a on the left that the- ditch side locking proximate said wheel was sole cause of of running highway of said automobile off' into the running said off the- plaintiff’s injuriеs, and that of injuries any into highway said ditch- and were not due any in negligence particulars of defendant set part on the herein,' is re- plaintiff in instructions then not entitled to out cover, other your in of shall be favor the defendant.” verdict assigns giving error here for the instruc- defendant’s hypothesize ground sufficiently tion 2 on that it not facts No. does negligence, from which tend to show that defendant was free would jury, finding in or which warrant would injuries. cause of plaintiff’s was the sole by have been under cause instructions review Many so called sole years. our recent of them held erroneous.. Supreme in Most were Court All or another from instruc respect of them are different one court has the- recently tion are with here. The clarified we concerned carefully analyzed requisites proper cause and doctrine of sole Mild, embodying 347 Mo. [Long instructions the doctrine. v. (2d) 853, l. 857; (Mo.), Keller 153 S. W. 149 S. c. Shields v. W. (Mo.), (2d)W. 60; Western Union Tel. Co. 153 S. v. Stanich 54.] written opinions and learned were In these three cases exhaustive instruc unnecessary cause Judge holding it was sole Hyde, negligence, or in negative imputеd specifically the idea tora. to that the contributory negligence, idea of but humanitarian case the negligence any negative existence of specifically instruction must negligence hypothesize specific must of the defendant and accident as sole cause of the relied on person or of a third Dairy (Mo.), S. Highland Farms Co. injury. or [Hopkins (2d) 254, l. c. W. 257.] ] in- brought attention have to our cases been In all which cause the sole as negligence relied on volving cause instructions sole negligence negligence plaintiff, wheife humanitarian by plaintiff recovery, was relied on for a third negligence or the of a party. ¥e no relies have such case before here. Plaintiff here us negligence. solely primary His on on instruction submitted his case theory the sole primary negligence part on the of defendant dangerous speed. the automobile at an excessive and for quite issues simple. thus became The underlying principle governing rulings sole in- cause on structions, negligence cases, where the in humanitarian plaintiff, negligence of a рarty, third is as the relied defendant sole injury, cause of the such an instruction must be drawn so carrying to avoid implication to the that'the concurrent negligence of negligence defendant the plaintiff, or the concurrent recovery, or, defendant third a. party, will authorize words, other negligence negligence plaintiff, party, the third concurring with the injury cause the acquit liability. the defendant of If the instruc- will tion, alone, given, with read other instructions from this is free *8 fault it is not held bad. If facts the instruction so read submits showing a sole Highland cause situation it is v. [Hоpkins sufficient. Dairy (Mo.), (2d) 254; Farms Co. Long v. Mild, 159 S. 347 Mo. W. 1002, 853; 149 W. (2d) (Mo.), (2d.) S. Shields v. Keller 153 S. W. 60; (Mo.), Stanich v. (2d) Western Union Tel. S. State 54; Co. 153 W. ex Shain, 950, rel. 527; Snider v. 345 Mo. 137 W. (2d) S. McGrath Meyers, v. 412, (2d) 792; Abernathy 341 Mo. 107 S. W. Branson v. Co., 1171, (2d) 562; 344 Mo. 130 W. v. Doherty Furniture S. St. 996, Louis Butter 339 Co., (2d) 742; Lynch, Mo. 98 W. S. Dilallo v. 82, 7; Mo. (2d) Borgstede 101 S. Waldbauer, W. 337 Mo. 88 S. W. 373.] It happens so Supreme that in the our Court all cases decided 'involving sole brought cause that have atten- instructions to our been tion the negligent is, acts on as the sole relied cause were acts. itBut course, of not an essential the sole cause doctrine relied act negligent as sole neg- the was a cause act. Whether act was the ligent only or never so is blameless a matter of no concern. It is injury. may essential that it was the sole cause of The sole cause existing thing, elements, be action of or it be an may some condition, for physical agency which action or condition no human directly responsible. present In the case action relied eaiise plain- on as sole injury locking tiff’s was of the wheel. The crucial issue jury for the guilty was as to whether defendant speed driving at an rate excessive which concurred injury, with locking of the wheel to cause the or whether injury. wheel was the sole cause of the And the question instructions, here is as to whether not the read to- gether, properly submitted that issue. urges that defendant’s instruction fails to submit facts
showing situation, only legal a sole cause submits We but conclusions. requires finding do think not this so. instruction highest degree defendant in the was in exercise of the of care operation obviously in the sub driving and of the automobile. This legal mits not not fact. It submits conclusion but an ultimate merely general was in the terms that dеfendant exercise of highest degree care, but submits that she was the exercise highest degree operation of care in of the automobile. It is broader in its in that it terms instruction plaintiff’s than does jury operation not confine the of the automobile dangerous speed. But at an excessive and rate this was disadvantage. The advantage of it to his plaintiff. Certainly was not degree of jury highest must have understood that exercise its driving, care in operation of the automobile included they reading of speed. But if so from this did not understand instruction, they when clause must have so understood of defendant’s instruction, which told reading it in with plaintiff’s connection duty the auto jury operation of defendant in that was highest degree to drive the same to exercise of care and mobile speed so as prudent in a careful and manner and at rate required an endanger person, finding any life limb of by plaintiff operated recovery to a drove essential dangerous speed. Whether the automobile an excessive dangerous being at an excessive and or not the automobile driven determine, course, of fact for the speed rate issue was, together instructions reading not see how the two we do upon deter called they were have failed to understand could jury that Moreover, instruction told the that issue. mine *9 dangerous rate an excessive and the automobile at if defendant drove instruction negligence, and defendant’s guilty he of speed of any not due to injuries were jury plaintiff’s find that required the out particulars set the any of of negligence part on the defendant requiring the referring jury to instructions, expressly other thus act— specific the had committed defendant them to decide whether of dangerous .rate at an excessive of the automobile the negli constitute instruction, which would plaintiff’s out in speed—set require a does not Certainly this gence part of defendant. the specific finding a requires of It legal conclusion. finding mere of is, defend instruction, that that fact, plaintiff’s set forth ultimate dangerous rate at an excessive automobile ant was not Court Supreme what accord with precise This is in spеed. of W. 950, 137 S. Shain, 345 Mo. ex rel. Snider in State en bane said required addition, instruction 'defendant’s (2d) 527, l. 531. In c. jury to find that because locking of the steering of the wheel defendant was unable to steer or control automobile, locking and that the the steering wheel was the proximate sole and cause of automobile running off the highway and plaintiff’s injuries. Plaintiff further contends that defendant’s instruction have should
required to find that she was at all operating times the auto- mobile at a aiyl reasonable rate of speed under the circumstances cоn- ditions. This contention sufficiently by answered have what we already shown, is, that that the instruction in- plaintiff’s read with struction requires a finding that defendant was in the of the exercise highest degree of care in the driving operation the automobile and that automobile being was not driven at an or dan- excessive gerous speed. rate of Plaintiff further contends that the instruction have re- should quired a finding locking that the wheel was due steering any fault of the defendant. say As to this it will that suffice there was no evidence showing tending locking show that steering any wheеl was due to Moreover, plain- fault defendant. tiff did not submit the theory respect. case on in that required further that contends the instruction should have a finding that the locking of the steering wheel was the sole cause of the automobile running private intersecting across the road and running field, into the required finding whereas it only that the locking of the steering wheel was the cause sole running off highway and into the ditch. In this over- looks that the instruction also required finding locking the steering injury. wheel was the sole plaintiff’s cause of There dispute no about the action of the automobile after it left the highway. Reading the together whole instruction with instruction, we do not see how it jury. could have misled complains
Plaintiff also giving of defendant’s instruction constitutes reversible error because there was no evidence from which locking could find that wheel was the sole and proximate injury, cause of plaintiff’s or that reason of locking wheel defendant was unable to control automobile. Plaintiff contends the action after running at wheel shows it was excessive, dangerous negligent speed; that if the auto- running mobile had speed not been at such excessive rate of application stopped of the brakes woxdd have the automobile roadway ditch, before it struck the fill across the private building least before it ran out field and struck the founda- into the tion. We are view. evidence unable concur shows this' frightened greatly defendant was she discovered that the steer- when ing wheel was locked so that she to steer automobile. was unable *10 According testimony fifty from to running to her the automobile was The autоmobile steering wheel locked.
sixty per miles hour when the ditch, ran about sixty ran into the seventy ran feet before roadway fill across thirty farther before striking feet sev- run Running miles hour automobile would fifty per at ditch. ninety run per second, per hour it enty-five sixty feet miles would immedi- apply the brakes full per feet second. Defendant did'not force turning must be ately fear of the- over. Due allowance resulting for automobile a sudden from made for the state of mind such defendant subjected terrifying emergency. We that she must also consider was running in- by developed to automobile in the violence action ditch, fill in the which was sufficient upon to the ditch and over the vio- From such passengers automobile. to two of the out throw . more or necessarily thrown about have been defendant must lence manage automobile. ability to her to so as interfere with less things for distance the automobile These are to account sufficient not must stopped. ran into the field before it In this connection we -to that automobile forget show plaintiff that on burden facts being negligent speed. Under all the driven at say circumstances in evidence we that such cannot voluntarily plaintiff Moreover, having as a law. shown matter of urge jury, in no here position submitted issue to is insufficiency the evidence to warrant such submission. in support his was no evidence
Plaintiff contention that there by locking from could find that reason of the which urges automobile, wheel defendant was to control the steering unable argument by that the automobile could have been controlled locking wheel, by brakes as well as and that while the may impossible guide have made it for defendant to nothing her the automobile it had whatever do with control argument by We not think brakes. do this applying show, shows, is tends defendant’s evidence sound. inability control the was the direct result of the shows, show, It tends did wheel. defendant by the use In fact stop all she could to the automoble of the brakes. way plaintiff negligent her any does not contend that she was by efforts to control the automobile use of the brakes after locked. steering wheel complains No. at the given of instruction instance
defendant, follows: charge
“The laid Court instructs thе Recovery against negligence. is one this case charge may charge negligence except had when such be is, weight greater preponderance, sustained jury. evidence, satisfaction of the credible to the reasonable charge, disprove upon does not the defendant said “It devolve charge proof casts the in reference to said rather the law burden of but *11 75 negligence must sustained charge be plaintiff said upon weight the credible evi- is, greater by preponderance, dence, jury. tо the satisfaction of neg- charge of therefore, find
“If, you touching the evidence in favor of the ligence against the defendant does not preponderate is not balanced, plaintiff in that case plaintiff, evenly then and is your find verdict agaist you the defendant and will entitled recover to ’’ for the defendant. ground it re- on the complains of this instruction it re- requires in that quires higher degree proof than law quires satis- charge sustained to the must be jury. faction of the 431, .Schaff, 241 "W. Supreme Shepard
Our S. banc, Court en review, there under responding to a like criticism an instruction said: is re- frequently
“It is well settled ruled that it and has been require jury from the versible error to 'the to be satisfied evidence re- he can necessary facts to make out case before cover.” Doherty Co., (2d)
In Mo. 98 S. W. 996, v. St. Butter 339 Louis 742, just like the instruc- the court had under review an instruction against complained here, complaint tion same was made it. proper The court held the to form. instruction be 1083, 1082, Dyer (Mo.), (2d)
In Mitchell v. l. c. 57 S. W. court, criticising review, perti this there under made instruction nent observation: short,
“A is simple instruction, telling the burden weight greater plaintiff prove preponderance his to case evidence, jury must of the credible and that he has done so the unless defendant, ought find for to inform the what sufficient be plaintiff required is do. A to that effect will be plain declaration easily elaborated jury. understood more the instruction is The likely upon, complex the more it becomes and the more it is to be Co., 338 misunderstood.” also: Rouchene v. Gamble Const. [See, 991, 123, Evans, 338 (2d) 58, 63; Mo. 89 l. c. Nelson v. Mo. S. W. (Mo.), R. (2d) 695; Seago 93 W. v. New York Central Co. S. 336, l. 164 c. S. W. 341.] his Seago required In case to prove Instruction jury by preponderance greater ease satisfaction of the instruction, weight evidence, court, criticising and the after said: bad, not'be Instruction 6 was it will
“Since we have held that assignment 4. necessary on Instruction "What specifically rule the warning ought a sufficient be we have said of this instruction case, admonition in the Rónchense bar and trial to observe the courts supra, proof to burden of instructions.”
It appears reversibly thus that the court not rule the did instruction erroneous.
So ruling far as we Shepard аre advised case and in has Doherty case been never overruled. Those cases are therefore necessarily controlling here. judgment Commissioner the circuit recommends
court be affirmed. C., opinion adopted
PER CURIAM:—The foregoing Sutton, *12 judgment as the opinion of the court. the circuit court accordingly Hughes, J., Anderson, affirmed. P. McCullen JJ., concur. Wisdom, John C. Error, Keithley, A. E. James Henry Houchens, Walter Lewis, and Walter McPherson, Doing County and Holland Moore, Business Scotland Company, Sales 450. Defendants in Error. 167 S. W. January 5, Opinion 1943. Appeals. filed Court Louis St. January 22, Rehearing 1943. Overruled Error for Defendants Motion of 2, 1943. Denied March of Certiorari for Writ Petition