Cervillo v. Manhattan Oil Co.

1090 discloses tbat at the the de-

case. record close evidence following request: orally “At the close of all fendant made the ground interposes a demurrer on evidence the defendant joined prove failed the issues in this case the under lapsed application revive policy and that said had request accepted.” submitted to the defendant and not was not was refused. in the nature

An instruction of a demurrer to the evidence should writing. Having failed to ask written instruction in the nature law, evidence, defendant, of a demurrer to the as a matter properly jury. Sherman, that the case was v. admits [Gee 789 ; 293 R. S. S. W. Sec. 1929.] complaint given is made No of the instructions or refused. Clear- jury. ly fail prejudicial the case was one for the We to find error judgment to the defendant. The is affirmed. The Commissioner so Boyer, C., concurs. recommends. foregoing opinion

PER of Campbell, CURIAM: The C., a- dopted opinion judgment as the of the court. The is affirmed. All concur. Company Respondent, Cervillo, al.,

Rosie et v. Manhattan Oil Appellants. (2d)W. 183. S. City Appeals. April 4, Kansas Court of 1932. Shapiro respondent. Benanti C. for

Frank and Julius Trvppe & for Smith, Murray appellants. Uogseit, Company, sued Manhattan Oil BOYER, C. Plaintiff: its suc Henry Snapp company, damages to recover for cessor the death run who was over son the wheels her minor of the de operated by truck then company’s employee, Henry fendant general petition specific charges contains Snapp. neg The alleges recovery ligence under the humanitarian rule. plea general denial and a answer death The was caused who, knowing the deceased negligence of the presence the sole n undertook to negligently mount the go same or so injury, cause his all of which as to was without thereto close negligence knowledge. and without defendants their recovery case submitted to The authorized under theory only. the humanitarian verdict assigned duly They appealed. defendants errors numerous. are separately, pertinent portions will be considered and the will pleadings points. and facts shown consideration of the dispute: January 9, 1929, Facts not On Ditta, Joe a child then years past age, plaintiff, nine met son his death. He surviving parent, following the sole and this suit was filed on the day January. 16th two Forest Avenue Pacific Street were public thoroughfares City; Forest extended north Kansas Avenue west. and south and Pacific Street east and Pacific Street did not directly Avenue, but extend across Forest where it entered jog fifty-four north, the west feet there was about tragedy it was scene of extended to east. The was near middle of Pacific the the intersection of these two streets where Street property enters Forest from Between lines Pacific Avenue the west. wide. The fifty sixty Street was wide and Forest Avenue feet feet thirty paved paved portion Pacific feet the Street was wide and portion twenty-six of Forest Avenue feet wide. There was a was intersection; approximately manhole center of the it was the 13.2 curb Forest and feet east of west line of Avenue fourteen the curb Pacific Avenue feet south of the north line of Street. Forest grade; approached upward Street on an the Pacific from the north nearly intersection more was level. M., day

On o’clock P. defendant the and about four driving Snapp employee company was of defendant and was the going truck in towards and over the inter- Forest Avenue south other children had been section with Pacific Street. Joe Ditta and nearby, place. north released from school and to the and east of Pacific Joe Ditta The children from the Street and came east Forest Avenue north the with others crossed "to west side from the Street Forest Avenue intersection of Pacific as it entered of their proceeding southwardly and the direction west side of Forest homes. the children remained east Some of curbing ground and snow on street Avenue. There was throwing making snow- plainly visible. The children were Street, going of Pacific crossed intersection balls. As the truck boy very of the near center south, some ran over the streets, injury then resulted in received and the intersection of the time, at the truck was prior accident, his death. Just ( than six seven miles moving more or speed of not at a rate have injury could place hour, approaching and while signal given There was no aof few feet. a distance stopped within the intersection. crossed approached, entered by the as he driver boy arise over location issues of fact The controverted intersection; entering the approaching truck was time the at the entered the time the prior to and at movements position and his or saw intersection; defendant’s driver and whether crossed arid avert in time to boy peril could seen boy that the to show tends injury. The evidence facing the manhole intersection near standing in the middle him; horn that there no was fifteen feet east when straight driver; the truck moved signal given by the sounded both him and right struck front wheel boy; that toward him. The evidence passed over of the truck side wheels on the standing was not that the is to the effect 'of defendants truck at in front all, was not of the street intersection intersection, and that after crossing the while it was time feet fifteen passed position of the truck had front end lifted hands west side ran toward the away, he very near the approached crossing intersection as it was fell slipped and he wheel; his feet rear truck in front boy’s proximity wholly unaware it; the driver under it, and did approaching him could see truck; not and did some until he had driven injured boy had been not know beyond. distance

Opinion. urged by The first point appellants counsel for is that trial refusing grant ground to per- court erred a new trial on the by plaintiff’s or mistake committed witnesses. The basis charge by plaintiff’s of this is founded on statements made two of given questions propounded witnesses and their answers them to by written a competent reporter down some months shorthand prior after the accident more than year the trial. These witnesses, trial, directly contrary at the testified to state of facts previously given. to and in with their main conflict statements The boy standing issue of fact the trial was was in front whether right wheel, (cid:127)of the truck and was run down front or whether passed boy, after the front end of the truck had he ran toward grab ride, slipped, the truck to and fell the side of under the right wheel. rear ICissgen

William was one of witnesses. At the time years age. he In was fourteen November of that accident year reporter pro- questions he the shorthand in answer to stated defendants, pounded investigator in the office school all; he attending, he was then he did not see the accident at that boy; going about it another he told was south was on the. running Avenue; they on the east side Forest sidewalk were looking pay- other towards but he wasn’t and the it; ing that he his back any attention to had to it and did not see happened. During know accident and did not how the trial right that he front the truck he testified saw wheel of strike testified to other facts about location boy, various boy. cross-examination he truck and On testified that he crossed injured boy Forest Avenue with the and walked on the west side up Street; Pacific thereof to and across walked south to northwest corner where Pacific Street enters Forest Avenue, and injured then across the street went south. who re- back on the asked given corner. He was about the mained by answers reporter investigator him the shorthand and the and said: “I telling questions you.” what I am told them Numerous and answers transcript reporter contained in the were read the witness. He. denied that he made' the- shown had answers in the transcript every question practically and denied and answer which had been propounded reported. parts He was asked what of the answers’ wrong wrong.” and said: “All said, however, He he questions answer truthfully undertook to in the office of the president of the school. witness,

Plaintiff offered another Marion Bonura, who at the time years age of the trial was and at the' twelve date the accident scream, ivas ten. He testified that he heard turned around, and right wheel of run saw the front over Joe Ditta. The examination of this had been made in witness the same manner as Kissgen transcribed, William that of at that he time stated happened; that he did know how the accident that he walk- ing it; ahead and had his back to that he did not know which wheel boy; just ran over heard some scream and then lying given back He looked and Joe was there. admitted that he had reporter, some of the answers to but denied most of them. He “Q. you Why didn’t these was asked: tell folks at the Woodland I you saw front wheel strike Joe? A. School hadn’t been thinking I quite until come because it about it down awhile ’’ questioned referred to afterwards. was where he had given prior trial. and had answers questions put transcript Defendant evidence the asked the witnesses and answered them and showed that the transcript prepared by experienced reporter an court had been and that the questions propounded by had been another and the answers tak- en in the office of school the examined, the where witnesses were particular. every correct in transcript and that the true and com- urge perjury that mistake appellants for Counsel conclusion, that the escape from the no mitted; that there is support evidence without contrary was court ruling question the exact But was not subject that it to review. is alleged in the ground was not trial court. to the presented motion, Referring we find that new trial. motion for perjury was committed trial was “that grounds alleged for new that verdict naming them, and by witnesses,” trial therefore question The that perjury. occasioned “perjury” had not upon was whether or to decide was called court had occurred committed, whether “mistake” and not ruled question sought presented and to be The the verdict. influenced question upon by trial ruled from the different plainly is here perjury urged as well had been as question of mistake If the court. different, cannot we find might result have been testimony holding was no mistake there trial court erred ques- verdict because contributed witnesses which presented was question decision. The presented for tion was necessari- upon the trial court In the motion perjury. passing that of perjury. judge not commit ly witnesses did ruled his conclusion issue, and unless upon trier became a of the fact no can be entirely substantial evidence there support is without interference. highest prerogatives

One of the vested in tribunal is that with which the trial court is clothed when upon interpose called be litigant party unjust tween a and an verdict. This duty re paramount sponsibility is to all importance others and the of it magnified ruling because of fact that of the court is often final and conclusive. such upon question When court rules it authority 1002, committed to of section Revised Statutes judicial permitted a sound discretion is discharge high duty that confronts the court. It is the use and not the abuse question is permissible. discretion that perjury whether was committed when called to the attention of the court trial motion for new trial aside, respondent is not to be waived con theory tends, questions of veracity for are pass ease, after verdict must out ap pellate if court should not interfere approval verdict receives judge. proposition trial That is not the all. When the perjury raised, motion a new trial was filed and process inquiry a new was then initiated which an involved of fact judge the exercise of a discretion. determined sound necessarily binding appellate The conclusion is court. However, judge rules, presumed ruling when the trial that such presumption and to overturn such the rec supported evidence

1096 ruling by disclose that is not supported must substantial

ord authority The test of for interference evidence. with such action under circumstances is whether the of the such decision trial court Queermann, upon rests reasonable foundation of fact. v. [Davis (2d) 22 58, upon appellants relied S. W. Cases are 59.] Railway 527, They Co., App. same effect. are: Scott v. Mo. Nugent seq.; Dry B. Thompson v. & Bro. Goods Co., et 17 S. (2d) 596, 597 ; Camren, Piepmeier (2d) W. State ex rel. v. 41 S. W. 902, 904. present say

In the situation we cannot the record is sufficient ruling unsupported by to show that the substantial evidence and it must be for a overturned failure the trial court to use judge occupied The trial sound discretion. ad- exceptionally vantageous position question. in passing this He saw wit- nesses; conduct, demeanor, appearance and of all of them were under his observation. The witnesses who are said to have committed perjury They were children. denied almost all the material previously statements were in with made conflict their testi- mony explanation the witness There meager on stand. of a judge may variance wide important, so and but the have found ex- youth surroundings tenuation and the children. There support finding some evidence to and conclusion that did give intentionally testimony. though might false Even we believe weight contrary that the evidence is conclusion court, against yet trial constrained appellants we would be to rule contention here made. many reasons, Plaintiff’s Instruction 1 is assailed one which petition; it is is that broader than the that it recovery authorizes or ran theory that the ivalked into the side and liability theory pleaded petition; no such in the and only theory liability petition the truck was and run directed at over the child. pertinent

This contention parts necessitates statement of the petition In charging part and of the instruction. initial petition alleged neg- carelessly “was ligently driven, operated controlled, so that the same was caused at, into, against permitted upon, to be run directed and over plaintiff’s charges specific infant son.” follow of negligence Then concluding stating humanitarian negligence. with that This last al- legation charges specific negligence negligently defendants keep vigilant lookout, highest degree failed failed to to exercise although care, warning, failed sound a and “that said defendant corporation, Henry Snapp, agent, and said defendant servant saw, or exercise employee prompt of due and care on son in part peril their could have seen being danger of coming struck contact said automobile in time thereafter the exercise of due care on the speed stopped defendants to have said truck or slackened thereof, aside, thereby or to have turned the same diverted thereof, warning thereby signal course to have a or and or sounded striking plaintiff’s son, negligently . . . have averted things.” any and all of said failed do lengthy, purports case,

The instruction is the and cover entire Among required finding it directs verdict. other matters danger being by of coming the child in imminent struck or was danger truck; contract the that the child was oblivious to his with ignorant require “or of the presence of said truck” and a find- ing saw, that “the the of driver of said truck or exercise highest degree seen, walk- the of care could have said child so running approach- ing Avenue, you find, on if or said Forest so ing point position peril the of and in a of collision imminent truck, you posi- from said if find and in such so believe was thereafter, peril, tion imminent in time exercise the of of highest degree truck, of of care on of the driver and said appliances hand, safety means of at and with reasonable to said occupants thereof, signal truck, contents and to have sounded. a or truck, warning child, so, stopped if and warned said or have said thereof, changed the speed or slackened or to have course to have thereby so, if thereof, child, and averted collision said and negligently carelessly do you if and failed to find that driver collision, you if avert or all of acts to and avoid said said negligence such find, if that as a direct result of you so and find by, or any, if was walked ran into carelessness, and said child struck thereby run over and so, if was knocked down and truck, findings, must be killed,” required then the verdict with other plaintiff. adopted and evidence, plaintiff pursued the

In the introduction of standing ground boy theory liability on that the was ob approached, front of the truck as it of the street in middle ap truck, driver of the while danger, to his and that livious directly standing, it boy was drove proaching point where no truck over him. There is front at him ran the wheel liability was plaintiff’s evidence suggestion intimation in or suggestion pretense theory. There no or any other predicated on ground liability theory on the the evidence truck, or ran toward walked the side of boy, approaching while thereby placed position presence ignorant it such situation or could1 seen driver saw a time when the peril at adopted theory thus injury. The avoid in time to allegations interpretation an aid to pursued lends petition petition and to the intendments thereof. While reasonable charges danger being that “the was in struck coming truck,” danger or in contact with the of contact arising being alleged danger from was the clearly directed at-and run over the child. We think that defendant against liability or to defend notified called ig theory boy, danger peril arose because the oblivious of or presence norant or ran the side walked into saw or time when defendant’s driver either could have seen peril injury. arising such situation time avoid in authorizing theory struction recovery walked clearly truck is petition ran into scdd broader er purview roneous. The law is that instruction must within the pleadings Authorities both and the evidence. could be multi plied; [Degonia Railroad, v. Mo. one will do. 589.] advantage gave plaintiff instruction an undue of which her counsel argument availed in in record effect: “But himself shown the to this by wheel, even if he was run over the back as his Honor instructed danger you, wheel, the the alone is not in contact with the front but boy if injured killed, the ran into side of that truck and was and the you, duty your law, as his Honor instructed it is under the and he you plainest language tells that can be uttered man that if boy the ran into or in with the that came contact side of truck . your duty bring plaintiff.”

. then it is in a verdict for the prejudicial clearly The of the instruction is thus nature revealed. respondent they Counsel for in say cite numerous cases which that counterparts of approved. the instruction have been We find no such counterpart in of said fail authorities and to find that deal the being petition. an instruction broader than the Respondent quotes length also cites and at from various cases in which the humanitarian but in expounded, rule none which do any justification submitting we find for a case to a on an in broadening beyond struction scope the issues the petition. Counsel also and recovery cite refer to cases in which was authorized person injured coming where child or was in contact with the car, of a a sample side motor of which is v. McCarty, Hornbuckle 295 Mo. 243 S. In W. 327. that there case was evidence that unexpectedly truck was turned from street intersection to the path in left children who were oblivious of presence, laterally driver of looking instead forward had turned his head looking to the was backward while he continued to drive present distinguishable the truck. The case is upon the facts. Oc require casion does nor space permit does reasonable a review many of the cited, we cases content ourselves saying after examination we find none of them upon issues, ruled facts, They at bar. in case presented theory similar to those trial present did not petition her verdict because support plaintiff’s do urged. recovery was issue on which ran into boy walked or in the case The evidence driver truck that furnished defendant. side boy Street when entered Pacific truck testified that Another standing northwest corner. on the sidewalk on the following in an automobile defendant who was witness shortly while the truck injury, and prior testified that feet boy about fifteen crossing Street, Pacific the street his hands raised and ran towards it with the side If such was the situa- slipped feel under the rear wheel. could tion, of the truck saw or there was no evidence driver boy manner. driver approaching the truck in that have seen immediately cab and back was seated the left side of an enclosed large him tank front end of was a oil on the truck. The at already passed the time had situa- he started run towards it. At time and resting look duty tion no driver to backward there was might one who in order to observe the actions and conduct of laterally street, duty to look ahead as was held it was his laterally case, being duty supra. Hornbuckle to look ahead, utterly absurd to it would be unreasonable and contend laterally duty same instant it was also his to look behind. The highest degree yet never exercise of of care has attained efficiency. holding Therefore, standard of there could be no basis for negligent failing the driver see com- leave plete safety and run toward the side of the truck after driver passed him. had

Considering aspect upon presented of the case here and which respondent claims recovery, may further we observe that if the child or ran walked into the side of the truck there is no evi- ignorant presence dence that he was truck. ihe of the subject presence evidence would that he knew of indicate running obtaining of the truck purpose and toward it for the any duty part a ride. Neither think do we there was on the of the horn, change driver of the speed, sound a slacken course car, car, stop and the' all after the front end of the truck had passed boy standing in the or on fifteen .street the sidewalk Enough feet from the truck. has been said to demonstrate that giving of said instruction was reversible error. P2 given

Instruction plaintiff at the in these words: instance is gentlemen jury, “You are further instructed, in connection PI, you with Instruction No. if that even should find and believe from negligent placing evidence that child was in deceased position (if peril was)that himself in of imminent find you so contributory negligence you such matter is in not an issue before instruction, you connection with and are therefore instructed law contributorily negligent, as a matter of that if the deceased was if contributory negligence, time question, in such regarded not as a defense de- any, you must be or considered rights termining considering plaintiff under Instruction given you No. PI as herein.” misleading highly

Appellants contend instruction that the is concluding equiva- prejudicial because the of the instruction is informing jury negligence in placing lent to that the of the child determining peril himself in must considered as a defense not be rights meaning under Instruction weighing thereof is “in the conduct of the driver the disregard entirely boy.” told must It conduct argued all-important is was an factor conduct determining what the conduct of the driver should been and liability. deciding argument is based This presumption that safety on the sidewalk until stood unexpectedly front him passed end and then ran out negligently into attempted the street and to obtain a ride in possibly where the driver him. In could see view the tried, manner in which the ground upon case it jury, way was submitted to the and the in which this instruction analyzed, argument presented. there is reason and force in the juror However, opinion ordinary we are of is not keen so analyst and it is doubtful whether he would so reason about the likely instruction. that he would instruc- understand give subject neg- tion that he contributory should no heed to the ligence it entirely because was no this defense case. But is not plain. power Potential confusion and the are to mislead contained instruction, we containing while do condemn it as error, clarity. reversible we neither do commend it for It is com- posed single measurably sentence, unduly long, of a involved, and fat with useless words. Respondent insists that no similar instruc- tion condemned, has ever fails to cite us case where approved. a similar In one was behalf of the instruction in- it is instructing clear sisted that court the fact peril it was immaterial how imminent created, and that contributory negligence is defense in no a last chance case. We greatly think improved, the instruction could if one is desired subject on the it would the well draw another free from the fault might that it confuse or mislead.

1101 sub Instruction which plaintiff’s error no reversible findWe it insist damages Appellants alone. the measure mitted ex consideration the jury take into erroneously authorized the limitations, authorized plaintiff proper without of life of the pectancy jury it and intimated to the expenses, for funeral recovery a failed $10,000. Defendants might a verdict for the sum return measure modifying or other instruction request any age witness, her jury as damages. plaintiff was before The expectancy jury to consider her was entitled shown, and the Light City Kansas observation. Stevens v. judge of life and by ap 651, 631, 208 S. W. relied App. Co., & Mo. Power question is different. there considered point. pellants is not bill. It plaintiff paid part of the funeral evidence that There is subject The instruction indicated for consideration. proper was a $10,000, and that the not exceed the sum of verdict could that the in that jury to find for instruct court did not mean to times criticized have at sum. Similar directions other be discontinued. practice should it has been held [Bales gen It Service Co., (2d) 40 W. is v. K. Public S. C. 669.] error. not constitute reversible erally that such direction does held half Of the maximum present the verdict was about In case likely prejudiced that defendants were recovery it is not instruction. amount named discharge refusing the court erred in It next contended that is asking of misconduct counsel on account defending company was the case. designed that an insurance to show wit- reporter the statements who took The shorthand had testified she trial was on the stand. She prior to the nesses were áccompanied where the witnesses attorney the school an" questions answers, transcribed them. examined, took down in evidence. On cross- and offered transcript was identified questions she was asked various by plaintiff’s counsel examination another, her, relationship to accompanied attorney who about the following: employed, whom Q. Mr. Hoiles. Who A. “Q. is he associated? With whom A. Q. they in? lawyer. office are What A. He is a Hoiles? Mr. Q. give youWill me the name Building, 1204. Bank Reserve Federal known employed? A. as they are by whom the office Q. you bill for this trans- Whom did L. Hoiles. of Mr. S. office your carbon bill? Q. you have a Do A. Hoiles. script? L. S. Q. you know me. Don’t Yes, I have it I have. don’t A. Employers employed by In- L. S. Hoiles is fact a matter of sustained objection was made and Corporation?” An surance discharged. Whereupon, jury be moved that the counsel defendants’ 1102

plaintiff’s counsel said: “If .your Honor please, Mr. Hoiles is employee, and there isn’t controversy it, about Em- of the ployers Corporation.” Assurance The court said: show “You can paid it, why you who for question? did ask the last A. Because a matter of fact Employers he is with the Company.” Insurance already The court: “You had shown that.” Counsel: jury “The know employment.” entitled to the nature of the motion discharge jury overruled. Preceding trial, presence of the court and out of hear ing jury, of the it Employers was admitted- that the Liability As Corporation surance was the insurer and that Mr. Hoiles representatives investigating associate were its the case. The examination given, on the voir dire is appears but it to be conced panel ed that the members of the were asked whether them Employers or employees stockholders Liability Assurance Corporation. objection here made is not directed to an im proper dire, examination on voir but to an injunction inexcusable subject of the of an insurance company the examination of the objectionable question wholly witness on the stand. Ye think the unjustified and that it prejudicial could have no other than a effect. proper purpose There was no or motive back it and no conceivable give reason it other’ than jury an intimation that an in company surance was interested in the defense of the case. This is shown the statement of presence counsel in the objection jury, question and after had sustained, employee Mr. Hoiles was an Employers of the Corporation, Assurance any controversy' there wasn’t about Employers it. The Corporation Insurance as a matter of fact was not the al insurer, though of similar name. is not reasonable to conclude that the object question purpose was to testimony discredit the of the witness on the arising stand on account of the interest employment her Mr. ground upon Hoiles. This is the justification respondent seeks sound. pur The obvious pose jury impress was to with the idea that an insurance com pany party was the interested on the side of the defendants. Even jury during if the had been informed voir dire that an insurance company defending, justify that would not a reiteration of through questions fact the medium improper and statements during highly counsel the trial. The improper, the trial court so indicated and instructed disregard it, knowledge but as a matter of common know we that such instruction wholly damage. repair Episodes ineffectual to ehar this (cid:127)acter trial, are detrimental to the cause of a fair the inestimable privilege occurrence, sides. This both last fortified in evil effect bickering indulged lack constant of decorum througout

1103 record, ought ease, require as disclosed to be sufficient to judgment. Halpin-Dwyer 29 Co., reversal v. Const. [Nolen 219 ; S. (2d) 215, Smith, 428 ; Edwards v. W. v. S. W. Miller Harrison Const. S. W. Co., 259.] assignments

We examined remainder error found any importance have not that of them are of sufficient or of designated quality prejudicial. pertain the to be in- They the parts deposition Snapp in of troduction evidence of defendant interest; against as exclusion of certain admissions the statements Bonura; privilege of of Marion of cross-examination of one plaintiff’s witnesses; in photo- to the introduction evidence of the graph boy; of the deceased to the exclusion of the statement of »f apparently going defendants’ witnesses “the ’’ truck; climb on the and that verdict éxeessive. the necessary We do not deem it a detailed discussion these to enter of separate points. them the- We éxamined and find under' attending record, as shown the and in view of the circumstances control, in superintending discretion of the trial court there any materially affecting in no error of them the merits of the case. record, evidencing stormy the Upon a consideration of whole trial, committed, we are indecorous and the errors convinced justice only by a the the of can be best served reversal of interest remanding trial. Com- judgment new the ease judgment be reversed missioner therefore recommends Campbell, C., concurs. the case remanded. TBIMBLE, My opinion view the written is that Boyer, P. J. judgment

C., opinion as the of the court and the adopted, should be accordingly. Judge trial, and the cause remanded for a new reversed assigned but, opinion, in agree with the reason the Bland does opinion is of in result reached since he the effect, concurs submitting question No. 1 plaintiff’s instruction was erroneous “slackening in not negligence of the truck driver of claimed tending show is no evidence when there speed truck” prevented or slackening would have averted speed that such retried, Consequently, case will have to be any way. tragedy in against the method leveled is, the criticisms when doubtless carefully will avoided or source authoritative trial ground obviated. of such criticism negligence petition, specifications in the a number of There are Boyer’s Judge opinion, the case sub-

but, pointed out as rule. alleged humanitarian violation one, mitted as are not such affect in mentioned here specifications enough petition support is broad of whether way the charge negligence violating humanitarian rule n particular manner contained within adduced. the evidence pleaded allegations petition All which bear violation the humanitarian rule are as follows: relationship parties, the fact alleging

After status and injured age, public was on the years deceased was nine thoroughfare City of Forest at and near the intersection Kansas Street, Henry Snapp petition up Pacific set Avenue with trucks; employee one of its defendant as a driver of was an belonging to said “an automobile said time and that at being ... in the business corporation, and driven defendant Henry corporation, by said defendant said defendant engaged aforesaid, and while employee . Snapp, as its southerly direction on employment, scope of his said negligently driven, operated and Avenue, carelessly Forest directed permitted caused and to be same was controlled, so that the plaintiff’s infant against son.” at, upon, into, and over run provided a negligent in that it was careless and That defendant pre- of said and obstruct the view driver as to truck so constructed negligently vigilant lookout, maintaining and a him from vented condition; dangerous in said said truck driver to drive ordered said knowing he condition, it in that well negligently operated that he further lookout; “said defendants were a that maintain could not negligently and this, they that negligent, in to-wit: and careless son vigilant plaintiff’s infant a lookout for carelessly keep to failed negligently they carelessly and streets; upon said and others of the street hand side truck as close to operate the failed to carelessly to failed they negligently and practical; as was operating automobile highest degree said of care exercise the to Missouri, as not the State of so required by laws of as negligently to sound carelessly and failed another; they injure warning truck to any approach of said give any signal or son;” plaintiff’s deceased defendant corporation, and said “although defendant said

That saw, by exercise employee or and Henry Snapp, agent, servant plaintiff’s son seen could have part their care on prompt and due coming by or danger being contract struck peril and position of of due the exercise in time thereafter with said automobile stopped said truck or slak- to have of said defendants care on the thereby aside, same and have turned the thereof, or to speed ened warning signal sounded thereof, or to course diverted son, by'the at striking plaintiff’s means thereby have averted to and thereof, truck, occupants and contents safety said to with hand and they carelessly negligently and failed to do all said and things injuries to avert and plaintiff’s avoid said to said son.” negligence

That “the of both time defendants as aforesaid at said gross aggravating; and concurred jointly severally in- cooperated and also to cause and occasion fatal juries plaintiff’s thereby son, directly caused ¡proximately Ditta; son, of said infant Joe reason death things aforesaid, premises facts, and of the matters and herein plaintiff damaged, forth, set said has and said defendants have become and are indebted and liable said Rosie Cervillo ($10,000) dollars, exemplary ten as the sum of thousand actual and damages, law, provided particularly as in such cases made and Missouri,. 1929.” section Statutes of Revised general together a plea— Defendants’ answer was denial injury negligence caused the sole “that said and death was knowing deceased, seeing presence who, the said negligently to mount defendants’ undertook the same or injury, get all of was without so close thereto as cause negligence part of these defendants and without their ’’ knowledge. but, filed, reply filed, case was tried as if No -was one were of moment. this is no allegations petition,

Now, where is there in all of above parties supposing the situation any room or reason alleged the humanitarian violation of rule the time of the petition placed-them, namely, than any place other where going truck, which was in front street ahead or operator southerly Avenue, Forest thereof direction on into, at, “to be directed run driving permit upon, as to so carelessly keep “failed against plaintiff’s son” and and over oper- negligently “failed for son” and to vigilant plaintiff’s lookout a was hand side street close to the the truck as ate degree highest the negligently “failed to exercise practical,” and “failed negligently truck” and automobile operating said- of care approach an said any teaming any signal give or to sound “although corpora- said defendant and son” to deceased saw, employee, . Henry Snapp, its tion, and said defendant their have prompt care on could of due and exercise or the being danger peril struck and in a plaintiff’s son seen exercise the . in time truck, . . . . . said thereafter slackened truck, or stopped said have ... to care of due thereby diverted and same aside turned' the speed thereof, to have or warning there- signal or sounded a thereof, or to have cowse . . . . but striking plaintiff’s son . by . averted negligently any failed to do things,” (Italics and all said etc.? mine.)

Reading above, no one suspect would ever plaintiff' that what would really claim in the evidence be boy would that the was at one side of and, the street passing, as the truck was he ran toward the side in an attempt climb to on and catch a ride. There is not an intimation of such anywhere an idea or situation petition. And the presented situation picture the latter so entirely different from that in the former, that, would entirely proof new and required, different be but the evidence would peculiarly specific have to of a be character as to the definite knowledge driver’s of what boy’s was, .the intention and as to the opportunity driver’s tragedy to.avert danger boy’s after became, been, apparent, should have case whatever could before presented be under a violation of the rule, humanitarian in a situa- just tion where the circumstances were like those of stated. One boy witness ran toward the side put truck and his as if up to climb on truck. arms when boy’s But did the intention says; become manifest? No one would but the inference boy arms, be did not raise his and thus intention, disclose his truck, until he range was close to the and then he was not within the way driver’s vision. That is naturally it would occur; for, running, boy would not raise his arms until he was close expected raising to where he to climb and where a of the arms necessary would be or of avail. Even if it could be said that must, primary the driver midst of his manifold duties everything watch or in keep to and observe ahead front of him, also eye boy, to side of street observe still he is not required have that omniscience which reveal him would to what years age intends, attempt, nine or will do one instant from might driver, possible the next. be under the circumstances considered, rule, here violate the humanitarian but it would knowledge occur; because he had what about to no mere theory duty ought he or that his known to be situation, on the alert and ascertain the will be sufficient to make a ease circumstances. under such phase case,

But, regard important this without more plead a petition feature is that the does not violation of the humani- circumstances, manifestly places tarian rule under those point or ahead of the at which in the street front of long way danger so the truck continued on its danger way. him not see nor move out of the and he did toward circumstances, duty of the driver is manifest if these Under danger duty so; it or observe the was his to do he did not see danger ways. in various :But, also he could obviate under the situation, boy place when danger did the come into a ? And other manifest to the when would that become driver or should have become ? Moreover, Slowing up so could he do to avert it ? what would it; swerving not; boy might do one side it to indeed cause the would very to miss his intended hold and fall that account. fact charges negligently that the petition that the driver failed to swerve charge pleaded in necessarily put boy shows that the one side intending coming front of the truck toward it from the side to catch a ride. petition clearly pleaded humani- this case violation of the clearly expressed.

tarian under the one situation so The evidence rule clearly submitted, No. 1 attempted present, and instruction entirely rule under an situation. It is well violation different permitted. settled that this cannot be

Going see, or could back of whether driver could feature opinion truck, it seen, he is said as ran jury de- effect, were bound to believe holding, errs when driver Snapp and Russell said the fendants’ witnesses no But, ran there is could not see the as he toward truck. any showing, under the him, nor there is evidence that did see Hence, discussed, any duty to see him. was under situation that he compelled it not a whether believe him, trouble say did not see but the two witnesses who the driver entire evidence to show there was an absence Boyer’s opinion Judge him. driver saw him or have seen should court, judgment adopted opinion should and the should be reversed remanded. and the cause against Company, the Manhattan Oil

BLAND, J. This is suit damages the death Henry Snapp, to recover and one its successor by the son, Ditta, who-was run over plaintiff’s minor Joe being operated Company, Oil at defendant, Manhattan judgment verdict Snapp. There was a employee, time ap- $5,365 defendants have sum of plaintiff in the favor of pealed. years age, was killed Ditta nine that Joe show The facts City; Avenue, Forest Kansas Street and of PaciSc intersection thoroughfares public are two and Pacific Street that Forest Avenue and Pacific north and south Avenue extends city; that Forest

in ac- directly not extend Pacific Street does west; Street east and from the west enters east but where it Avenue to the Forest eross north, at ex- fifty-four jog feet to the' about there in- killed near middle east; deceased ivas tends these two where Pacific of streets Street enters Forest Ave- tersection west; property fifty that between lines Pacific Street from nue sixty wide; width; that Forest Avenue is paved feet in feet that the thirty paved portion Pacific Street is feet in width and the portion of wide; twenty-six ap- feet that there is a of Forest Avenue manhole intersection; in the center proximately of the manhole line of 13.2 of the west curb Forest Avenue and fourteen feet east Street; the north curb line of Pacific that Forest Avenue feet south of approaches upward grade Pacific Street from the north on an nearly it at intersection is more level. January 1929, driving M., P. Snapp

About four o’clock was going Forest south the truck on Avenue toward and over inter- section Pacific Street. Joe Ditta and other children on with from ways nearby home a school the north their located to and east of came from east said intersection. The children on Pacific Street Ditta, others, and Joe crossed to the west side Avenue Forest intersection Pacific north to the Street as it enters Avenue Forest Joe Ditta and some of the children then the west. crossed they proceeded the southwest corner of the intersection as south- wardly in the direction of their homes. Some re- children' east mained on the side of Forest Avenue. There snow the on curbing ground plainly the street was not visible. The chil- making throwing dren were snowballs. As pro- the truck going ceeded on over intersection Pacific Street south ran deceased, who over was about center intersection question. prior the streets Just the collision and at time moving speed at rate of truck was of not more than six per seven hour and, approaching miles while injury, stopped very could have within distance few feet. No signal given approached, driver he entered and crossed the intersection. controversy boy

The main at trial was over the location of the approaching entering the truck intersection, time position prior his and movements to and at the time the truck entered and crossed intersection and whether the driver the truck saw deceased, position or could have seen peril, in time injuring averted him. The evidence behalf tends show that deceased was standing facing in the middle of the intersection near the manhole, him; east when the was fifteen feet from that there nowas horn signal given by driver; sounded or straight moved boy; right toward that the front wheel of the truck struck him both passed body. wheels on the side of the truck over light most favorable defendants, taken The evidence inter- standing in the them, is to the effect while it was truck at time not in front section and was the front end of the crossing that, after the intersection ran toward away, fifteen feet passed had crossing it was lifted as truck with his hands the west side of the in front the truck approached very near the intersection and the it; that fell under right wheel; slipped and he that his feet rear proximity deceased’s wholly truck unaware of the driver of the was approaching, him truck; could not see the that he did not and injured until he had driven that had been and did not know deceased beyond. some distance the trial court erred urged by is that point the defendants perjury or mistake

refusing grant ground trial a new facts In this connection the by plaintiff’s witnesses. committed Company liability insurance Oil carried show that the Manhattan casualty, sent an shortly after the company, and that the insurance vicinity to a school the attorney reporter shorthand and a skilled questions the collision; attorney propounded the thereto and that the children, made answers witnesses, who were However, reporter. by testimony transcribed the was afterwards plain- nor the testimony signed by witnesses, was never the this testimony. The taking of the represented tiff at the time of the made two on statements charge of error is founded basis of this the witnesses These at witnesses, plaintiff. who testified these contrary in conflict directly to and facts trial testified to a state of transcript of their testi- in the as contained their statements witnesses trial these reporter. At the mony made shorthand deceased, run over they saw to the effect testified testimony transcript of their directly it. But the in front of who time they stated at the company shows that insurance taken they not see did at school house that examined were happening. Kissgen. William At the the witnesses

One of years age. óf He stated was fourteen the collision he time of examination, according transcript, did he school at the boy; about it another accident; he was told not see During testified the trial he happened. how it that he not know did deceased, and the truck strike right front wheel of saw the that he and the deceased. location of facts as to various other by him at the school house given the answers asked about He was telling A you.’’ number of I am “I them what told and he said: transcript re- in the questions answers contained that he had made he denied witness and read to the porter ques- practically every transcript. He denied shown answers transcript tion which propounded showed had been re- H,e ported. wrong.” said, all stated the answers “were He however, questions truthfully that he undertook answer the while principal office of the the school. Bonura,

Another of Marion at these witnesses was who time trial, years age twelve the date of the collision years age: transcript testimony ten he shows that stated the school examination that he did not the col- house see happened. lision and not know But trial tes- did how at the he scream, right tified that saw he heard turned around and front wheel of the run over deceased. He admitted that had given some at the school house but answers denied most “Q. Why you them. asked: He was didn’t tell these folks at the you Woodland School saw front wheel strike Joe? A. thinking I I hadn’t been about it until come because it was down quite awhile afterwards.”

Defendants’ transcript properly evidence tends to show that reported testimony taken at children the school house. urge perjury committed, While defendants or mistake was trial upon perjury. question, motion for new was founded position therefore, disagree is whether or not we are in a with holding procured through the trial court in that the verdict was not nothing perjury. ease, We find about the other than the usual ju appears conflict that often in cases of this kind between extra testimony dicial statements of witnesses at trial, and their and justified ruling interfering are in trial with the court’s 22 Quermann, (2d) 59 ; the matter. v. S. W. v. Scott [Davis Ry. 527, 530 ; Co., App. Thompson St. Jos. L. H. & P. 168 Mo. v. Nugent (2d) 596, 597 ; Dry Co., Bros. 17 S. W. ex rel. Goods State (2d) 902, v. Carmen, S. W. 904.] giving plaintiff’s It is court insisted erred instruction lengthy, case, 1. purports No. The instruction is to cover entire finding Among required and directs a Addict. other matters it danger being by coming that the child was in imminent of struck or danger truck; in contact with the' that the child was oblivious to his finding ignorant required of truck” presence “or of said and saAv, by highest of that” the driver of said truck or the exercise seen, Avalking running degree of could have said child so or on care find, Avenue, you approaching point if of collision said Forest so position truck, you if peril in a of imminent from said so find and and peril, thereafter, position imminent in time believe he was in such of highest by degree part of of the driver the exercise care of truck, appliances hand, and with reason- by means of said and occupant thereof, have safety truck, and able to said contents so, signal warning child, if have sounded a and warned said or to or truck, speed stopped thereof, said or have slackened or to changed thereof, thereby course have and averted the collision so, you carelessly if child, said if and that the driver with find and negligently do all of failed to one or said acts to avert and you collision, find, you said if if avoid so and find that as a direct negligence carelessness, if any, result of such and said child by, so, truck, ran into if struck walked or said and down was knocked ’’ thereby killed, required other run over and findings, and then your plaintiff. verdict must petition; insisted that the instruction broader than recovery theory

it authorizes a walked or ran truck; theory liability into side that such was not the. theory pleaded petition; liability peti- is that tion in front of the truck when it ran him. over charge petition general contains a negligence, is, first “carelessly negligently operated that the truck driven, and and controlled, permitted so that same was caused to be directed against upon, into, run at, plaintiff’s and over son.” cer- Then follows specific charges concluding negligence, stating neg- tain with that ligence under This allegation negli- the humanitarian rule. last gence follows:

“That, although corporation, said defendant and said defendant Henry Snapp, agent, employee saw, servant and or the exercise prompt part care on due and their could have son seen being peril danger coming struck or contact with time said automobile thereafter the exercise due care on the said stopped defendants have thereof, aside, speed or slackened the or turned same thereby thereof, signal or to diverted course have sounded a warning thereby striking plaintiff’s son, to have averted safety the means at hand and with to said contents oc- thereof, they carelessly negligently cupants failed to do injuries plain- all things of said avert and avoid said to said tiff’s son.” plaintiff standing all that in

The evidence of shows deceased was approached; truck that middle of the street front of the as it the danger truck, while was oblivious his that the driver of he of the standing, directly approaching point the where was drove it the course, him. Of him and ran the front wheel of the over at deceased, part plaintiff on the that there was no evidence the approaching walked or ran into it while side the the injured by falling- the However, under wheel. was the rear. alleges was in of the truck petition, place, in no that deceased front charge permitted was any time. The that be “directed at son,” general. at, upon, against most into, run and over charge as this Evidently pleader it was to make the intention enough general in which truck ran over deceased to the manner might take as to this care of variations that the evidence to take be, solely upon may However the case was submitted matter. that charges negligence in the all other humanitarian rule and upon theory, were abandoned that petition, outside that based quite charge apparent not It is be considered. and need negligence position that did not' confine of humanitarian allegation location, that he specific but makes the of her son by danger being com- struck “or peril was in a ours.) (Italics us ing contact with” truck. means to allegations petition apparent quite it is that that theory upon enough humanitarian based to submit a case broad question is no ran There that deceased into the side the truck. jury’s consideration to was sufficient evidence that there theory that doctrine establish a case under the humanitarian falling coming was run to its side and under the child over right rear wheel thereof. testimony Snapp Russell, is witnesses,

If the defendants’ not have seen believed the the truck could deceased to be driver of running jury bound to toward the truck. But the was not take the testimony liberty of these as true and were at to believe witnesses plaintiff. that favorable to not was bound testimony witness, Snapp, that he looked to believe the passed him, saw as he at the northwest second time and deceased Pacific Pacific Street For- corner of Street and Forest where enters deposition est Avenue from west. He that testified again right after when not look he saw deceased the truck did forty thirty standing north of feet where deceased intersection; the sidewalk at the northwest corner of that after seeing point when at deceased his truck was that he looked to the many However, left notice him. there and did thereafter are testimony inferences to be from other drawn deceased was standing upon corner of the sidewalk at northwest streets passed point the time the front end as was testified to driver of the truck. testimony witness, Josephine Ditta, shows that she sister, deceased, Pacific

her followed crossed over Street Annie, sister, thereof. behind south side She testified her “Q. Now, us.” testified: her and deceased “was behind She (Pacific south) Street, Joe went the street he? never across did Q. A. A. was behind us.” This Yes. He did? He shows got to the corner the intersection. deceased southwest This Kissgen. He witness, William said that also testified to he and Forest; south side of deceased crossed deceased went on the east

1113 side,” fifty over “on. the southwest at time the truck which was about that deceased away; “went back on the corner on the southwest feet (toward) back on side and went the east side” and him in ran over the street. say testimony jury witnesses, Josephine could from this of the Kissgen,

Dütta William went into the and deceased street the southwest of the intersection. The evidence shows corner manhole, a is 13.2 feet of he ivas struck near which east the west curb Pacific Street about line of Forest Avenue extended across and of fifteen sixteen feet north the south curb line of Pacific Street or eastwardly words, Forest In across Avenue. other in order extended get gone collision must north to to the deceased have easterly diagonal and, course, or otherwise of if this direction plain sight truck, true, of must have been of driver he south, laterally ahead, he de who was headed had looked and while proceeding approached point “in a slow trot” as he ceased was testimony liberty all jury collision. at to find from of the in front of the truck run that deceased either and was over or, truck, wheel, well as the be the front wheel rear lieving testimony that ran in a trot toward center defendants’ he attempting ride, purpose to board it for was run over wheel slipped he ran truck and and rear say duty it was only. course, could Of at to taken whatever measures there were of the truck have driver de stop the truck when saw' should seen his command age, trotting years nine ceased, was a child toward who 452 ; Mo. Rd., v. 170 Mo. Holmes Ry., v. [Livingston truck. 535 ; Kaster, Erxleben S. 149 ; Llywelyn Lowe, 239 S. v. v. W. (2d) 993, 1001 ; Messer 198 ; Ry., 23 S. W. (2d) 195, Carney W. v. court apprehend We no 290 W. Gentry, S. v. 1016.] child vehicle, seeing a or other say that driver of would obligation it, no age trotting would be under years toward nine his command to avoid and to take measures anticipate trouble 566, 567: Ry., 100 S. W. Mann v. it. As was said in years be measured old should not “The twelve conduct adult, immaturity to an applied because of care the standard imperfect knowledge an embraces, only ordinarily youth between cause proper relation laws and natural facts and necessary to the exer- of those elements effect, but, possessed when thoughtfulness discretion, care, still lacks of reasonable cise ordinarily prudent be attribute judgment presumed Thought- experience. may be come adult, im- patent all but indifference lessness, impulsiveness, taken childhood, must natural traits dangers are minent ’’ child. classify the conduct come to when we into account testimony tending if stated, there to show As before deceased of the when left the southwest corner intersection he went street, over, in was run point where he then it makes no difference testified, did, if many other witntesses left the how that he side- place. truck from We, walk or started toward the some other there- fore, testimony witness, with the are concerned defendants’ However, very Russell. this witness testified that he was in a occurred; position testimony was good see what his' or more guess. It is that this witness less a true testified that front end boy truck came in trotting, of the was south of the- when the right angles street, and at the middle of the toward with it. But testified first saw the witness that he ’deceasedwhen the was fifteen trotting truck child feet west of the and that the was then toward according and, witness, to this was middle truck child got he up still at the middle truck when to it. got child, tiruck, up

It is different see how the when he to the he in could be at the middle thereof when was the same away the truck when fifteen feet reference center of he was very think approaching that, probably, slow trot. We jury, testimony, taking under this in most even witness’ favor- light to have found of the truck plaintiff, able could that the driver running it, if, seen for the reason that, have deceased toward could was thereof, the truck he at the middle when deceased reached considerably north when was truck must have been further deceased words, must therefrom. In other the truck have covered fifteen feet during the fifteen feet the time that deceased covered feet several twenty that the truck was about feet question. The evidence shows photographs length. many There introduced are and, viewing jury, before the photographs, these which were evidence half appear that the driver of truck was stationed about it would If way the middle of the truck. this true between front and feet forward of deceased ran into was seated about five where he suppose truck traveled more truck. It is reasonable to hour, feet, going per six or miles while than at the rate of seven five covering If was fifteen feet in a slow trot. deceased deceased was actually running hour making per over four of five miles he was say that trot. it is reasonable to not in a slow Therefore traveling further than fifteen faster than deceased feet point when deceased started toward it. At away from the of collision testimony he the truck in this stated witness’ away fifteen feet “just entering Pacific when deceased was Street” east in middle of the street. proceeding testimony However, apparent from all we think it is justified saying saw jury the driver trot, slow in time approaching it in a could have seen deceased truck, evidence, under the have stopped could have feet, four or accomplished in less distance than five for the require of the truck it would the driver stated reason that put if in- space amount he did not brake on. The this plain stopped if he the brake he could have ference used instantly. or almost truck in less distance stop Even truck did not have time to if driver it, running could seen deceased after first saw or toward warning. in least, Supreme a The he, at could have sounded Court warning 377, 388, W. a Spindler Wells, v. 276 S. held that the case of in given person circumstances even when a is of should be some aware approach of the vehicle is about to strike him. The driver of the that warning brought truck in to the should have sounded a order to have deceased, years age, danger of the realization who was but nine of the of the facts in proceeding toward truck. The this case disclose highest degree the or utmost of situation where rule the care should applied with all the both severity, as on sidewalks on sides many running back forth street were children and in truck play. across street absorbed driver of saw high degree care, have to situation and should used a not control, looking danger. keep his truck but in under however, We No. 1 think, instruction was erroneous slackening speed of submitting jury question in guess speculation truck. is to mere whether this would It left prevented coming slip- have deceased in contact with and/or in his ping such a manner to cause death in under as way very which in instance. Schmidt Transit happened this v. [See speed App. 182, if the of the truck had Co., Mo. Even 187.] slackened, would no could tell whether deceased did, slipped bit in of the rear than he a little more advance wheel consequences. this of the Very probably with is also true same proper it the truck. We think was submission of the failure swerve danger, question as to his to submit the of obliviousness of deceased although coming there- and intended to catch ride he saw the truck say jury age, years on. could He was child nine ignorant of the that, judgment, in he was lacking discretion and intending catch running of the truck danger full to the side driver youth- apparent have been ride, his would ob- question of his he to submit had looked. It was error ignorant being it error to submit liviousness but submitting that walked in presence of the truck connection there evidence suggested jury ran it. into This through presence truck but ignorant that deceased relied evidence some inadvertence ran into its side. to the side

plaintiff submitting ran in deceased no intending it. There is ran forward to board shows that he face that, ran toward from the evidence as deceased evidence or inference forward, course, he must have run face he did not he ran to it. seen the before P-2. con- plaintiff’s Instruction Defendants is made of

Criticism concluding misleading because the instruction that this tend informing negligence of equivalent thereof peril must placing himself not be considered deceased as a rights determining under defense Instruction 1. unnecessary out this instruction. It to set is merely contributory negligence and concludes by stating deceased, if contributory negligence any, “must re- not be determining by you as a or con- garded defense or considered given you P-1 instruction sidering rights plaintiff under con- so worded as to meet the could be The instruction herein.” striking word, “de- out all of it after the of defendants tention say instruction con- not intend to While we do fence.” wording given, it was prejudicial error stitutes at another the instruction plaintiff to redraft would be better for suggested. omitting the words trial plaintiff’s Instruction which sub- error in no reversible We find it Appellants insist damages, alone. measure of mitted the jury the ex- take into consideration erroneously authorized the to limitations, plaintiff proper authorized without pectancy of life of the jury it expenses, to recovery for funeral and intimated $10,000. Defendants failed might for the sum of return a verdict the measure of dam- other instruction on any modifying or request age was jury witness, as a her plaintiff was before the ages. The life expectancy to consider her jury entitled shown, was & City Light v. Kansas Stevens from observation. judge of it ap- 631, 208 W. relied App. 200 S. Co., Mo. Power different. there considered is question The point. pellants is not bill. It was funeral paid plaintiff is evidence that There indicated The instruction subject for proper consideration. court $10,000, the sum of could not exceed verdict in that or jury find for instruct the not mean to did at times been criticized other sum. Similar directions v. be discontinued. practice should [Bales has been held that the generally (2d) 665, It is Co., 40 S. Public Service W. 669.] K. C. reversible error. not constitute In direction does held such re- maximum of for about half of the present ease the verdict prejudiced by likely defendants were covery is not and it in the instruction. amount named discharge refusing terred that the court

It is next insisted ask- plaintiff counsel for jury of the misconduct on account designed ing company show that an insurance was de- prior fending reporter, took, the ease. The shorthand who She trial, plaintiff’s witnesses, statements of was on the stand. attorney where the accompanied testified that she to the school examined; questions and witnesses were that she took down the transcript The answers and transcribed them. identified she plaintiff’s offered in evidence. On cross-examination counsel questions attorney accompanied was asked various about the who her, “Q. you know, questions being: propounded Don’t Employers fact, employed by a matter that L. S. Hoiles Corporation?” Objection sustained. De- Assurance was made and discharged, whereupon, jury fendants’ counsel moved that your Mr. please, “If Honor Hoiles is counsel said: Employers employee, any controversy it, and there isn’t about over- discharge Company.” Assurance The motion to ruled. discloses, by record admission of counsel for defendants, that defendant, Manhattan Oil Company, was insured and that Hoiles representative

was the of the insurance company; Clark, who went with Miss Arceneaux to the school testimony house to take the of the children, attorney was an company. the insurance Neither Hoiles nor among Clark were attorneys defendants’ at the trial. shows, record also inference, that paid Miss Arceneaux was by Hoiles, representative company, the insurance for her serv affirmatively ices. It is shown that bill she sent her to Hoiles. therefore, proper to relationship show his with the insurance company. Snyder Mfg. v. Co., 285 ; Jablonowsky Elec. 284 Mo. [See v. Mfg. Modern Cap Co., 89 ; 279 S. W. Grindstaff v. Steel Co., (2d) S. W. 702.]

We have examined the assignments remainder of the of error and have not found that of them are of importance sufficient quality designated to be prejudicial. They pertain to 'the parts instruction in evidence of deposition of defendant Snapp against interest; admissions the exclusion of certain statements Bonura; Marion privilege of cross-examination of one plaintiff’s witnesses; to the introduction of photo- evidence of the graph boy; of the deceased to the exclusion of the statement of defendants’ witnesses apparently going that “the to climb truck;” and that the verdict is excessive. We do not deem it necessary to enter separate a detailed points. discussion of these

On account giving error instruction No. judgment Arnold, J., is reversed and the cause remanded. concurs; Trimble, J., P. concurs the result.

Case Details

Case Name: Cervillo v. Manhattan Oil Co.

Court Name: Missouri Court of Appeals

Date Published: Apr 4, 1932

Citation: 49 S.W.2d 183

Court Abbreviation: Mo. Ct. App.