*1 modify proceeding in a when filed should be sustained provided, circuits within judge county, multiple divorce; one a decree be transferred should of Section 508.110 the case provisions reg- instances court; division all other another in the judge circuit to sit should call another judge ular case, pur- judge circuit to sit court to transfer a request this Rule 11. Supreme Court Const., Y, Art. suant to § Robinson, supra, v. Cole, Robinson supra, of Cole v. The cases con- they hold far Moore, supra, so ex rel. Reece v. and State longer followed. be opinion herein, should trary to our the recent cases directed our attention Plaintiff-respondent has 1013[15-17], 2d Purdome, Sup., of Osborne [3-5], 2d Sup., 250 S.W. Purdome, Mo. and Osborne contempt case. in criminal change of lies held that no venue where in- inapplicable to the upon considerations is based conclusion This power generis-, are sui Contempt proceedings case. stant Purdome, courts. Osborne contempt is inherent punish col.). 1012(1st 2d supra, further cause remanded reversed and the judgment The Lozier, opinion. Van with this Osdol consistent
proceedings GC., concur. adopted by Coil, C., is foregoing opinion
PER CURIAM: The judges concur. All the the court. opinion of Rowe, I. L. Appellants, v. Ella C. Brewer, Brewer Glenn (2d) 42815 252 S. W. 372. No. Respondent, Banc, en November Court *2 Van Seiler, Blanchard & Hecker, Jenny & Cole Harold F. appellants. Fleet for
Moser, Marsalek, & Carpenter, Cleary Carter, Julian Jaeekel C. and Bussell J. Joseph respondent; Uorsefield Nessenfeld counsel.
PER following portion opinion of an CURIAM: The prepared by one of adopted the commissioners is as a per opinion: curiam son, allegedly
“Plаintiffs sued for death of their caused negligence. 537.080, defendant’s RSMo. Sec. alleged contributory negli- Y.A.M.S. Defendant denied negligence, gence judgment and counterclaimed. Plaintiffs had a verdict and $15,000 against his counterclaim. Defendant granted ground was a new trial on the Instruction appealed. No. was erroneous. Plaintiffs E. “Larry Brewer, plaintiff’s son, was buried on his eleventh birthday. boy. He a graduated was normal He had just from grade. grades fifth He school, being made excellent one of the ‘top’ thirty-five or four in a members class between thre§ forty. good health, physically strong, He was an excel- player lent swimmer and tennis sports. was active in other He played violin in the school orchestra. He was likeable and made rapidly. He friends church member and attended church and regularly. Sunday School He a Cub Scout. He was mechanic- ally money by He cutting inclined. earned running lawns er- fop neighbors. rands At the time death, of his his billfold con- he tained had $3 about earned. “Larry sustaining injuries died within hour after col- parties’ between the automobiles. lision The collision occurred *5 iy2 2, 1950, 12:30, p.m., June on
about U. S. Route about miles Bourbon, Missouri. driving west of Defendant was west. Mrs. driving east, Larry sitting and was Brewer was beside her ‘drizzling a was seat. There rain’. The pavement, front hard- centerline, marked was According wet. plaintiffs’ with surfaced Brewer’s evidence, (to Mrs. sharp, the site was a unbanked curve on the and to occurred right) left defendant’s and the collision east end of the So did curve. Brewer testified. Mrs. so the driving westwardly who and saw Tindell, witness was a truck curve. immediately collision end before he reached the east “Mrs. Brewer first it was about noticed defendant’s car when distant; nothing un- feet was side’ it on own and she observed ‘its going (ap- usual about its it than she was movements; was faster parently she going m.p.h) was about did not know how but she faster; then, nearing curve, much she was the end she drifting my road’; noticed' that defendant of the ‘was side put right on her my strength’ she brakes ‘with all and felt go right edge rear off pavement wheel of the and onto the shoulder; time, lengths at that defendant’s car was two three car away.and get ‘it coming me, tried to over towards but it on road’, right] the other side of the and ‘he hit [defendant’s right’; ‘way my car, front side of the front the collision over’ side; right pavement; on her her rear still at the wheel was off the impact, time of no of her ear was left centerline— ‘just angle’ sort of on stopped. it an she had almost —and “Defendant’s that occurred collision on ‘straight highway’ highway. east of the curve and on his side of testified driving m.p.h.; Defendant that: he was he first saw the Brewer ear (100 feet, when it was about a half mile away in his deposition), paid particular to it until he attention right noticed that its were pavement ‘throwing wheels off the mud’; coming water and then other car ‘was at me broadside * ** manner, it had flipped around; turned in some I around just happened to see it coming toward the front of my auto- mobile; put there was no anything else, time to brakes I immediately pulled my right, my right, ear to the towards the north shoulder’; to the best knowledge, of his crossed he never the center- ; the other line and car was on side of the when it stоpped. road (for giving
“Plaintiffs’ Instruction No. 6 of which the granted trial) trial.court a new ‘The was: court instructs the you find that and believe from if the evidence that on the occasion in evidence plaintiff mentioned Ella driving C. Brewer was an eastwardly along automobile Highway over and 66 in Crawford County, Missouri, that defendant I. operating L. Rowe was westwardly and along automobile over highway, said and that being by plaintiff automobile driven Ella Brewer C. and the auto being driven collided; mobile L. I. Rowe and immediately prior of and at timе collision, you said if such was, find there L. Rowe negligently defendant I. drove operated at driving the automobile which he was time around a curve highway excessive, high dangerous said at an speed rate of *6 negli- and that said existing, trader the then and there circumstances negligent, direct- gence of the Rowe, you said I. L. if find he was so his and 'in evidence ly contributed to cause the collision mentioned I. L. defendant injury you find, and so damage, any, then, if if and counterclaim Rowe is not entitled to recover of on his plaintiff's I. your against defendant be in and plaintiffs verdict will favor of L. on Rowe his counterclaim.’ that'defendant agree
"We not do that the instruction assumes finding requiring a driving his car around a curve instead of ‘was is that the construction on issue.’ The reasonable requires finding negligently drove a ‘defendant instruction highway at an in said operated and his automobile around a curve the circumstances excessive, high dangerous speed under rate of italicized we have existing.’ then and there The clause which driving was his only undisputed defendant assumes fact that Hengelsburg driving curve. car—not that he was it on a Contrast defendant, wherein Cushing, 51 S.W. 2d cited Mo.App., clearly position on assumed the instruction the automobile’s highway. No. 6 was er Instruction
"Defendant next contends that high ‘excessive, hypothesize roneous in that it failed to facts as * * * circumstances,’ dangerous speed rate of under the other 2d citing Manchester, 217 S.W. Yates reversibly Instruction No. 1 is cases. Defendant also asserts that speed predicate a to liabil in that it submitted as erroneous excessive 6. Plaintiffs ity language in the Instruction No. same counter the verdict Any harmless as error Instruction No. thus: only 1, the instruction returned under Instruction No. obviously verdict on both their claim and defendant’s authorizing counterclaim. in the con-
"In there was material conflict this case automobile nor to the circum- cerning speed of defendant’s being operated, the evidence was under which it was stances occurred, ‘straight high- conflicting whether the collision on as to Mrs. Brewer’s it occurred on way’ on a curve and as to'whether evidence, In view the highway or on defendant’s side. side of the proximate have been a contends, speed could not no submissible issue of and that there was the collision cause of negligent' speed. plain- observe failure to 1 submitted defendant’s "Instruction No. driving (and right side on keep failure to
tiffs’ car high operation his car at and his side) highway, of the the left ' then and the circumstances speed under dangerous rate of foregoing’, Clearly, etc. by reason all the and ‘that existing, there tive submission this submission speed and conjunctive. failure to Since keep there to the right conjunc- side (and sub- driving highway, the fact that side) the left rule) speed (which mission as do not improper have been Baking ground Grocery & Kroger Corley for a new trial. *7 Co., No. 355 Mo. 2d We rule Instruction 900. 1 was not erroneous.
“Instruction their plaintiffs’ No. 6 did authorize a verdict on claim. And it counter plaintiffs’ authorized a verdict on defendant’s only claim if in negligent operating contributorily defendant was high car excessive, ‘around a highway curve said at dangerous speed rate of and there exist under the circumstances then ing.’ plaintiffs’ Other similarly plaintiffs’ instructions authorized contributorily verdict on defendant’s counterclaim if defendant negligent failing keep right driving to to the and in on the left highway. side the (the of only But Instruction No. 1 instruction authorizing a verdict for both on their claim and defend plaintiffs, ant’s counterclaim) required jury find that defendant to negligent respects operating speed, to additional at excessive ’ viz., to plaintiffs keep right. failure observe car failure Thus, jury found that these othеr acts or omissions constituted primary negligence plaintiffs’ contributory negli as to claim and gence as to findings jury counterclaim. The defendant’s were required to make under necessarily precluded Instruction No. 1 them finding’ from for defendant on his counterclaim under Instruction No. 6. In other words, jury’s finding that all defendant’s of acts or omissions negligent, as submitted in Instruction No. were finding constituted a contributory negligence of defendant’s on his counterclaim as to these same conjunctively acts or omissions sub mitted Hammel, Mo.App., Instruction No. 1. Hoefel v. See S. W. 2d 405. Hence, any No. error in Instruction 6 was harmless.
“Such conclusion whether unnecessary renders a determination of plaintiffs made a speed. submissible case as to defendant’s excessive
“Defendant further contends that Instruction No. 6 infer entially against authorized plaintiffs’ a verdict defendant on cause of action plaintiffs’ because of placing upon instruction defendant proof the burden of as to his counterclaim. Munzlinger, See Kunz v. Mo.Sup., S.W. 2d 540. Instruction No. 6 authorized a ver against only dict on his counterclaim purport and did not against to authorize a verdict him on claim. We overrule assignment. this paragraph “In the first of Instruction No. jury ® ** plaintiffs’ damages to assess ‘at sum as will fair authorized
ly reasonably compensate plaintiffs necessary pecuniary in * * jury, any, by if to them reason of the loss their said child *.’ Defendant complain paragraph. does not the first ‘Instructions
(on damages compensatory measure of sections under the lim- statutes) approved death havе neither have been ited or damages, detailed the elements nor directed the manner estimating plaintiff’s further than limit recovery just compensation to the the pecuniary loss fair which has or would be sustained result of the necessary death.’ McDowell, Hertz v. 2d “In paragraph second told of Instruction No. determining pecuniary injury, that ‘in necessary the amount of such any, you if the law does not afford an exact standard of measurement given permit you more accurate than that does to take above, .it your knowledge into experience consideration common in life in relating any.’ connection with all the evidence injury, to such if ‘It repeatedly state, has been held that the courts nature of the loss exercise a minor their child is own judgment such, that it is upon the facts and proof, proper “for the *8 connecting knowledge experience they them with their own and ’’ supposed possess are in generality to common with mankind. Rys. City Co., App. 902, Roberts v. Kansas 204 228 586, Mo. S.W. Savoy Co., 929, 905. Miller v. Hotel 228 68 App. 463, Mo. S.W. 2d sаys 932. However, paragraph that the second ‘constituted positive misdirection’ in that law does afford a standard of /‘the given paragraph.’ measurement more accurate than that in the first (On damages measure and death of a minor elements of for child, Mennemeyer Spald 960; see 359 221 Hart, 423, v. Mo. S.W. 2d ing Robertson, 517, 523; 357 14 A.L.R. 37, Anno., Mo. 206 S.W. 2d 485.) 2d supplementary
“But defendant offered or ex- no instructions planatory that, of Instruction No. 4. ‘It seems the measure of when generally according is submitted to the standard in effect by statute, fixed request the defendant if he desires in- should limiting detailing plaintiff’s further structions or the elements of dam- ages directing jury McDowell, how them.’ to estimate Hertz v. 358 214 546, City Mo. S.W. 2d 549.. And see Hancock Kansas Ry. Co., Terminal 574; Mo. 100 S.W. 2d Golden v. Co., National Utilities 2d 298. This as- signment adversely is ruled defendant. assignment in
“One defendant’s new trial motion was that procured by the verdict was and per was the direct result of ‘fraud upon petrated by testimony the court and the false of witness cross-examination, Tindell.’ On Tindell stated that one of Seiler, Joplin, represented any Rоbert had never him attorneys, motion, support In case. his new trial defendant filed affidavits signed for showing Seiler had an answer Tindell a certain suit. (those uncontradicted counter Plaintiffs’ affidavits of Seiler and two Patton, Joplin) Max Douglas, Neosho, other attorneys, Herbert regard- January, were that: a Seiler-Tindell conversation a case in ing Tindell Seiler summons case, the instant showed avoid agreed answer to de-. defendant; which he Seiler to file an in that attorney plaintiff fault; informed Douglas, Seiler so agаin dis- Seiler never Patton, employed; whom Tindell later filing the an- fee for that ease Tindell and received no cussed with Tin- agreed name stricken swer; Patton to and did have Seiler’s finally a month before disposed of attorney; dell’s and the ease was by Douglas instant trial and Patton. “ place and the testimony site of the collision Tindell’s Tindell’s Assuming that impact Mrs. Brewer. was corroborated knowingly represented him) (that statement Seiler had never per- ‘fraud resulted from false, does follow that the verdict it not testimоny? of Tindell. petrated the false on the court when it overruled been the trial view Such must have court’s action that such We hold assignment in trial motion. defendant’s new proper. as to evince says was ‘so “Defendant verdict .excessive, jury.’ Even if passion prejudice itself, passion not, in show does and of the amount award Mo. 229, R. Co., Louisville & Nashville prejudice. O ’Brien v. 2d 690, 693.” circumstances, regard mitigating aggravating
Aside from value child recovery death of basis of minority. Menne during the child’s parents services to the child’s 537.090, 960, 962. Seetioii meyer 2d Hart, 221 S.W. * * “* give may Y.A.M.S., expressly states: RSMo. they dollars, as exceeding fifteen thousand damages, *9 * * just, deem fair and ain by the evidence shown facts and circumstances The amount that may establish case character particular of this grossly or grossly either is awarded the court duty be the in would inadequate; and such a situation it may the case grant as trial, a new a conditional remittitur or to order be. eases: illustrate, extreme let us assume two
To have to evidence any age, shown (1) infant, of is An hе could mentally physically, to establish defective, been so then, parents: to his earning capacity or render service have an never his a verdict for circumstances, clearly, in the absence of aggravating be excessive. $15,000 would for wrongful death earning sums vast been shown to have prodigy is An infant (2) to do so have continued probability, would and, in all reasonable majority: then, clear- attaining years before appreciable number of an ly, in the mitigating absence of verdict for circumstances, nominal death would be insufficient. the other
On in hand, many perhaps in cases, as this case and most them, say, death aged, of a normal fourteen infant, years less, developed special aptitude, and had is shown: who obviously, the in is, upon speculation verdict must be, case based nothing and more. There can substantial evidence to be no probable case, net value In parents. of his future to>his such a service we deem it to expressed Legislature be the jury, intent of the that the ‘‘ not the triаl or appellate they fix the amount of the award as court, deem fair just”. and And, too, we think is able more likely and reviewing arrive at fair and just award than the court. This, for the parents reason that the in most cases sees the something surrounding learns their station life and the circum- being stances under which the child lived and was reared. Furthermore, should we amount reduce the of the award consistently any permit could not thereafter verdict stand an greater amount fixed an than that here for the death of infant decedent, age approximate of the of this circum- under similar Such an reducing by judicial stances. order would amount to fiat the statutory $15,000 maximum of amount fixed in this case for the death of such an infant under similar This the court circumstances. unwilling do.
The cause is reversed and remanded with instructions to set granting order aside the to reinstate verdict and new trial and judgment rendered in accordance therewith. Leedy, Tipton
Hollingsworth, Conkling, concur; J., JJ., Hyde, result; Dalton, J., concurs in separate opinion concurs result оf,, filed; C.J., separate Dllison, concurring opinion concurs in J. Dalton, DALTON, (concurring). J. reached in the concur result —I
per opinion, curiam but feel that be stated and additional facts should prior decisions should be reviewed.
The concerning age, physical character and the development mental has been fully child reviewed opinion. pecuniary Defendant offered no evidence on the issue plaintiff and did not loss cross-examine either with reference to the education, support reasonable cost of the child’s and maintenance. By cross-examination defendant did show that the suffered from child allergy hay during fever the summers —and that his —chronic expended him parents had funds for treatment and had to Trav taken *10 City, they purchased cottage stay a erse where in which to Michigan, hay the fever was over. As to matters which affect until season recovery Spalding a for the death child see amount of of Robert- the
603 (Mo. Morgan 357 son, 523; Mo. 206 37, (2d) Oliver 517, S.W. 39 S.W. (Mo. App.), 73 Sup.), (2d) 993, 997; S.W. Marx v. Parks (2d) 570, 575. submitting issue of the
The form of thе instruction the made to opinion has has been been reviewed and reference to ex- requested supplementary fact no instructions issue planatory cautionary this of Instruction 4. instruction on No 218 requested given. Montgomery (Mo. Sup.), See v. Ross “re- with 99, sought be submitted (2d) No issue was attending gard such mitigating aggravating circumstances Spalding v. supra; neglect 537.090, or default.” act, Sec. cir- It under supra (206 (2d) 521). Robertson, 517, SW. That ver- $15,000. that the returned verdict for cumstances trial has, court, since a new effect, approved dict been the trial granted alleged giving 6, solely for error in Instruction excessive assignments in trial reference to an with the motion new verdict were overruled. verdict was
Appellant quite apparent the contends that “it is now compen- reasonably far in ‘will fairly excess of what can be said by them plaintiffs necessary pecuniary injury’ sustained sate so son”; as a result of the death their and that “the verdict was of ’’ jury. passion prejudice part of the excessive evince on the opinion part that аdopt concurring this On issue we this applicable opinion, supra, the commissioner’s which reviewed “But and made follows: is in authorities certain observations as year boy old excessive for the death an stant award 11 ? statutory maximum RSMo $15,000, it allowable because was for , in this have appellate YAMS. The courts state 537.090, Sec. solely never held that an award in the maximum amount this court because it the maximum allowable. decisions of Two chil intimate that maximum amount in instances of is excessive years. 273 Kansas City, drеn of tender In Davoren v. required a bane, SW 40 ALR en remittitur court, maximum, in the case of a statutory the then one-half of $5,000, ‘ (under rul previous year boy. only assigned was, old The reason McCarty, Hornbuckle v. ings).’ Apparently the reference was (in Division No. 1 wherein ALR by $5,000 in case 1922) $10,000 deemed a award excessive year upon the boy. appears to have been based old That decision capacity until he reached would theory earning the child’s 14 could ‘negligible’ earnings, between have been and that regard au dо those decisions as $5,000. not have exceeded We maximum for an thority proposition for the award facto, or that such excessive, ipso 14 is, death of a child under years Twenty-two court. appellate be award must reduced that, under division held after in the Davoren this- decision *11 604 $10,000 the year limitation, an death of a old $8695 award for the 9
boy was not Wright excessive. Osborn, v. 356 Mo. 201 S.W. 2d 935.
“In
instances of
pecuni-
death
adult,
of an
the award for
ary
‘justified
loss must
358
by
McDowell,
be
the evidence.’ Hertz v.
Mo.
214 S.W. 2d
of
value of
546, 551. But: ‘An estimate
the
prospective
developed any
child,
young
services of a
too
to have
particular talents or aptitudes,
only
can be reached
on considerations
general
of the most
be
character.
In such
much must
left to
’
the common
jury.
sense of
McCarty,
Hornbuckle v.
295 Mo.
“The cases, statute fixes a maximum award all death and this applies though limitation even in a particular might case pecuniary injury show a in excess of maximum. As pointed out, have our appellate courts not re- have hesitated to оrder mittitur support where affirmative evidence failed to the award pecuniary But, children, made for injury. young instances of requires difficulty proof of direct pecuniary determination of large injury jury’s sense; be left in a measure and, to the common jury’s award necessity, based, upon direct, positive must be evidence, upon probabilities might reasonably find 1 (Mo. (14 mos.); McFetridge Sup.) v. Kurn 125 912 v. SW 2d Marx (Mo. (3 App.) yrs., mos.); 39 2d 570 8 v. Parks SW Missouri Pac. Walker (Mo. (3 yrs.); App.) 253 804 R. Co. Indiana, SW Buchholz Standard Oil Co. App. (5 yrs.); Dugdale Joseph 244 211 Mo. SW 973 v. St. (12 Co., App. 243, yrs., mos.) Ry., Mo. 189 830 L.H.&P. 195 SW 10% Co., App. 608, (2 yrs., 107 Lead Mo. 82 Barnes Columbia 203 SW 7% Ry Co., (18 mos.); mos.); App. yrs., Hickman v. Pac. 22 Mo. Ry. Co., (18 yrs., Kelly mos.); Pac. 94 Mo. 464 SW 966 Parsons Mo. SW City Higginsville, App. (17% yrs.). V. exist, considering age, condition, health, per- the child’s mentality, a,nd sonality perspective, and the circum- parents’ ages, attitude stances.
“No could predict, certainty, probabilities with as to Larry future, Brewer’s nor precisely plaintiffs’ pecuniary loss. fix *12 But the jury, specific even without thereof, evidence have rea- could sonably concluded parents’ ages that the werе such that health the life expectancy both parents beyond Larry of extended the time would have majority. jury attained reason- his could have The also ably that, concluded all probability, plaintiffs reasonable sustained a pecuniary injury substantial by Larry’s reason of death.”
Further, pecuniary loss could
Larry’s
be inferred from
death and
relationship
plaintiffs.
Sharp
Co.,
to the
In
Biscuit
National
553,
561,
In case the ambulance affirmatively, record shows by account plaintiffs funeral in the of on $816.00 bills sum incurred expenses of the death of could their son. Such be considered “the necessary injury resulting of such death.” Missouri from See sustained cited 536. Plаintiffs (2d) cases Anno. A.L.R. proof damages. their burden of on the issue of plain- was for
It in the first instance fix the amount of damages effect, approved by verdict been has, tiffs’ presented court. On the record in this case there is sound trial or legal say basis which court can verdict is excessive this it is sustained the evidence. There is no substantial remittitur. The amount is within the limits fixed in the record binding upon plaintiffs which would legislature require record, passion under and, the circumstances of this does not show prejudice. apprоve Wright Osborn, the statement situation, this we In saying: exists (2d) 940 in “No formula is it be determined whether award of by Courts determine under the instant circumstances. upon its own considera- question facts, in each case due character conditions, ex- uniformity decision, economic being given tion pertinent and all factors. The test must legislative policy pressed toas verdict finally the size meet, however, is whether bounds it is within whether court, the conscience of shock ’’ reason. opinion. per curiam reached stated, I concur As result G.J., Ellison, concurs.
Emery Winters, Respondent, Railroad Association Terminal W. (2d) No. 43116 252 S. Appellant, Corporation, St. Louis, 380. Two,
Division November