William CATO and Lorenia Cato, Plaintiffs-Appellants, v. Aisie MODGLIN, et al., Defendants-Respondents.
No. 36709
Missouri Court of Appeals, St. Louis District, Division One.
Oct. 26, 1976.
Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
Application to Transfer Denied Feb. 14, 1977.
Appellant‘s second point is akin to his first point. He contends that the trial court erred in sustaining Betty Strauss’ motion to quash his motion for contempt citation “without hearing evidence on the matters.” In the alternative, appellant contends that the trial court should have granted him “leave to amend”5 before sustaining respondent‘s motion to quash. Appellant, in his motion to cite Betty Strauss for contempt, alleged that Betty Strauss “did conspire with the plaintiff [Carol Beth]” to remove Catherine Marie from his custody and from the State of Missouri and “failed and refused to reveal” the whereabouts of Carol Beth or Catherine Marie, although she at all times knew their location. Appellant failed to allege facts which, if found to be true, would show a conspiracy to violate some right flowing to appellant by virtue of the original divorce decree. See Middleton v. Tozer, 259 S.W.2d 80 (Mo.App.1953). Furthermore, there is no indication in the record, nor does appellant allege in his brief on appeal, that he attempted to introduce evidence on the matter. The matter was called, argued and submitted before the trial court on November 26, 1974. It does not appear from the record that appellant attempted to “amend” or sought “leave to amend” his motion. In any event, at this stage of the proceedings it was within the discretion of the trial court to permit an amendment.
We find no abuse of discretion in sustaining the motion to quash the contempt citation as it relates to Betty Strauss and accordingly rule this second point against appellant.
Lastly, we turn to respondent Betty Strauss’ motion for damages for frivolous appeal filed pursuant to
We have read the transcript on appeal and reviewed the briefs of the parties and the authorities relied upon, and, finding no error, we affirm the judgment of the circuit court.
The judgment is affirmed.
All the Judges concur.
Kortenhof & Ely, Joseph M. Kortenhof, Ben Ely, Jr., St. Louis, for Jacky Williams.
Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, St. Louis, for Lloyd Hicks.
Albrecht & Homire, Edmund C. Albrecht, Jr., St. Louis, for Aisie Modglin.
Holtkamp & Beckemeier, St. Louis, for Florence Dollinger.
RENDLEN, Judge.
Plaintiffs William and Lorenia Cato appeal from the judgment entered on directed verdicts for defendants Williams and Hicks and on the jury verdicts for defendants Aisie Modglin and Florence Dollinger, Administratrix of the Estate of Paul Dollinger. This case arises from a multi-car accident during a heavy snowstorm January 26, 1969.
Points numbered IV and IX of plaintiffs’ brief, not raised in the motion for new trial, are thus not preserved for review.
“In determining whether a submissible case was made on the theory of primary negligence or under the humanitarian rule we review the evidence from the standpoint most favorable to plaintiffs and give them the benefit of all reasonable inferences therefrom.” Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 922[2] (Mo.1959); see also Schmidt v. Allen, 303 S.W.2d 652, 655[3] (Mo.1957); Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1974). This standard of review is “tempered only by the wise, judicious limitation that this rule calls for consideration of all, not merely an isolated part or parts, of the facts shown by plaintiff and does not require the court to supply missing evidence, or to give plaintiff the benefit of forced unreasonable inferences, or to disregard the dictates of common reason and accept that which, on the whole record, obviously is not true.” Graham v. Conner, 412 S.W.2d 193, 198[3] (Mo.App.1967).
Plaintiffs sought recovery from the defendants, alleging as acts of primary negligence, excessive speed, failure to keep a lookout ahead, failure to “have their vehicles under control,” and neglecting to swerve or sound a warning; also as acts of humanitarian negligence, failure to stop, slacken, swerve, or sound a warning. If the evidence justified submission on any properly pled allegation against either defendant Williams or Hicks, the directed verdict as to such defendant must be reversed. See Nelms v. Bright, 299 S.W.2d 483, 488[12] (Mo. banc 1957).
Considering the evidence most favorable to plaintiffs concerning defendant Williams, the jury could reasonably have found that plaintiffs and Williams were traveling north on Highway 67 toward St. Louis in a severe winter storm. The road, a four lane north-south divided highway, was covered with approximately four inches of snow and virtually all northbound traffic was traveling at 35-45 miles per hour in the right-hand lane. Williams was following plaintiffs either immediately behind or following a truck1 immediately behind plaintiffs’ automobile. When the line of traffic slowed in front of plaintiffs, their car went into a skid, apparently as a result of striking the car ahead, sliding sideways northward in the right-hand lane. Defendant Williams’ car hit plaintiffs’ car broadside or at a slight angle. After the impact, Williams’ car slid around plaintiffs’ and came to rest across the centerline north of plaintiffs’ car. Williams admitted striking plaintiffs’ car testifying: “When I said I could have gotten around him, I was basing it on the fact that the truck [i. e. the truck Williams said was traveling in front of his car] got around the car and the Volkswagen [plaintiffs’ car] did appear to be mostly in my lane in the right so the truck got around, so I assume I could have gotten around, I mean there was room to get around but putting on my brakes I slid into him.” (Emphasis ours.) Even if the jury did not believe there was a truck, this testimony with the other evidence combined to make a submissible issue of defendant‘s negligence in electing to stop instead of swerve. As this defendant testified, the truck ahead of him, if there was such a truck, swerved and missed plaintiffs’ car, permitting the jury to consider whether Williams could have so swerved, since as he conceded, “I assume I could have gotten around, I mean there was room to get around.” Therefore, the ruling of the trial court as to defendant Williams must be reversed and the cause remanded for retrial.
The mere fact that injury follows negligence does not necessarily create liability. The burden of establishing by substantial evidence appellants’ negligence as charged and the necessary causal connection between such negligence and the injury alleged rested upon respondent. And, if the evidence merely established that the injury might have resulted from several causes for some but not all of which appellants were liable, the necessary causal connection remained in the realm of conjecture and speculation and respondent‘s case failed.
See also Kane v. Chicago, Burlington and Quincy Railroad Co., 271 S.W.2d 518, 521[2] (Mo.1954), cert. denied, 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738 (1955). Similarly, plaintiffs “upon whom the burden of establishing the essential element of causal connection is cast . . . do not carry their burden by leaving that essential element in the nebulous twilight of speculation, conjecture and surmise.” Hildreth v. Key, 341 S.W.2d 601, 606[8, 9] (Mo.App.1960).
While as noted we must review the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to plaintiffs, it has been stated, appellate courts cannot “imagine the existence of evidence, when none in fact exists, or supply missing evidence, to flesh out an otherwise insubmissible case, nor can it spring inferences from nowhere upon which to predicate submissibility.” Wallander v. Hicks, 526 S.W.2d 848, 850[2] (Mo.App.1975). In the case at bar, while the evidence must have been sufficient to permit the jury to infer the Hicks’ car contacted plaintiffs’ there was no evidence from which the jury could determine the force of the impact or that any of plaintiffs’ injuries were the result of that impact. Thus plaintiffs left the crucial element of causation in the realm of speculation and no submissible case was made. The trial court properly sustained defendant Hicks’ motion for directed verdict.
Plaintiffs obliquely suggest that the court‘s erroneous action sustaining the directed-verdict motions prejudiced plaintiffs’ case in the eyes of the jury, requiring reversal as to all other defendants. We do not agree. It is essential that if juries are to know what is to be considered and decided, they must be properly advised of rulings on motions to dismiss and as stated by the court in Elmore v. Kansas City, 333 S.W.2d 795, 798[3] (Mo.App.1960), “we are aware of no ruling taking the view that it effects juries prejudicially [to so advise them verdict-directing actions] in instances where another defendant thereafter remains in the case.” As to the ruling on defendant Hicks’ motion there can clearly be no prejudice. However, the erroneously directed verdict in favor of Williams is more troublesome. We have reviewed all of the evidence as to the other two defendants and find the verdicts amply supported. Further, the evidence as to Dollinger was different from that as to Williams. The evidence as to defendant Modglin was both different from and inconsistent with that against defendant Williams. Thus even though the directed verdict was erroneous, it could not have prejudiced and may have aided plaintiffs’ case as to the other defendants. The judgment need not be and is not reversed as to all defendants.
The single possible instance of the trial court‘s misstatement of the evidence occurred when the court stated that the expert witness had said that he could not make any comparisons of one set of paint samples. In fact the witness had said that the paint was very similar but the sample was too small to be spectroscopically matched. This mistake falls far short of reversible error and such evidence goes to defendant Hicks against whom plaintiff otherwise failed to make a submissible case rendering the error if any harmless. In any case plaintiffs did not object to the statement when made and thus has not preserved it for review.
Finally, plaintiffs argue the court erred in permitting plaintiffs’ witness, the Highway Patrolman, to testify on cross-examination from his report, that the vehicles involved were skidding, when in fact he did not observe the accident.
Defendants Williams and Modglin argue that plaintiffs had elicited favorable hearsay testimony from the patrolman on direct examination and his hearsay testimony to the effect the report showed that all cars were “skidding” was admissible under the doctrine of curative admissibility. See Young v. Dueringer, 401 S.W.2d 165, 167-68[1] (Mo.App.1966). Ordinarily the use of curative evidence of the character offered here rests within the sound discretion of the trial court and we see nothing in this record which justifies reversal of the trial court‘s exercise of that discretion in admitting the evidence offered.
While there appears to be merit in defendants’ contention that the evidence they sought to introduce was of the same hearsay character as that offered by the plaintiffs, most significantly its admission was not harmful to plaintiffs. The evidence seemed to show that all cars were skidding, there was no contrary evidence and this fact does not appear inconsistent with plaintiffs’ theory of the case. Plaintiffs’ point is denied.
WEIER, P. J., concurs.
McMILLIAN, J., dissents in separate opinion.
McMILLIAN, Judge (dissenting).
I respectfully dissent from the majority‘s holding that plaintiffs’ made a submissible case against defendant Jacky Williams. The evidence indicated that defendant Williams was traveling at thirty-five (35) miles per hour or fifty-two (52) feet per second when he first saw the Cato automobile crossways in the road sixty feet ahead of him and the car was sliding back towards him. Assuming that Williams reacted normally to the danger presented, in three-fourths of a second his automobile would have travelled 39 feet. Although Williams immediately applied his brakes in an effort to avoid the accident, his automobile slid on the snowy pavement into the sliding Cato vehicle. Thus, it appears under the circumstances then existing, the majority opinion correctly found that the Williams automobile could not have stopped within the remaining 21 feet so as to avoid the accident. On the other hand the majority, without any evidence, concluded in the emergency situation confronting defendant Williams that Williams had sufficient time and distance, after discovering the Cato automobile, to have avoided the accident by swerving his automobile. At best defendant Williams’ statement that, “. . . I assume I could have gotten around, I mean there was room to get around but putting on my brakes I slid into him” is highly speculative as to whether Williams could have avoided the accident with the on-coming, sliding Cato vehicle, by swerving. No evidence was adduced by plaintiffs as to how long or far it would have taken defendant Williams to swerve his automobile so as to avoid the accident. Consequently, taking into consideration the snowy condition of the road, the sliding movement of the Cato vehicle towards defendant Williams’ automobile, and the fact that Williams had less than a half of a second to take some evasive action, I find no evidence to support a case against Williams. Therefore, I would affirm the judgment of the trial court sustaining defendant Williams’ motion for a directed verdict because of the failure of plaintiffs to make a submissible case against him.