*1 defendant, pending appeal death is for Schaffer, App. v. 17 Mo. action. abates the 442.] [Woehrlin damages injuries in a for for held suit This court has judgment and, pending was for below where the person, plaintiff died, death his- did not abate the suit. appeal in this court injured party, claim for By recovery in the lifetime judgment, merged suspended in the which damages became un Rail Admr., St. L. court. v. & I. M. til final action [Lewis, Co., 59 Mo. road 495.] pending judgment here, appeal from a dies When survive, action does not him on a cause of which before against although reversal, will abate such thereof, action the reversal after 118 Kandle, done here. v. Pac. granted, is as was trial new [Green J., 175, 3; 172, 1 Idaho, 190; p. 125, p. sec. C. 90, J., C. note note Ky, 1106, 206, 77 W. 111 Am. Gibson, 117 S. St. See, 86. Irvine v. Rep. 251.] Upon the last above stated. remand approve the rule as
We though it never been The present case it was as tried. adminis- deceased, Kauffman, were authorized under revival statute trators 1929, 1056, Statutes in the Revised move for Section abatement below, in the which the was trans- hence venue to court designated general ferred, in the number of terms court within the they the General Code. This did. statute revival just having venue, period to, changed referred been within plaintiffs, difficult to see application it valid on the stipulating why act of the administrators the ab- reason supply might filed in order matters contained stract merely a waiver. constitute That ob- papers lost files should repleading necessity and enabled the court to rule viated suggest merely might appellants questions as arise. The answer had never been withdrawn. Kauffman’s be- the answer had appear that It nob the administrators had does come officio. functus answer: filed an correctly below and the decided affirmed. The cause All concur. Lynch Lynch. Appellant, A. Dilallo, James Genevieve
Leo (2d) 101 S. W. 7. One, December Division 1936. *2 Boyle MeChesney appellant. & Priest and S. P. *3 respondents. E. Baker for Ernest
BRADLEY, $10,817 personal injury for to recover C. Action society in- wife, of his plaintiff, services, companionship and loss of special damages for accident, medical and jured in same and damages the car owned and nursing to the wife and attention for de- by and went plaintiff. at the time Yerdict driven overruled, being plaintiff appealed. and motion .for new trial fendants automobiles, arose, from collision, between the which this The Louis, January 13, Avenue, 1929. Plain Grove St. occurred on Tower on negligence, alleged grounds jury but went tiff six thr.ee neg speed; (2) these, (1) that defendants viz.: Excessive in same direction pass going1, ligent attempting to- another wrong upon side of attempting, so their car over and ran and car; the humanitarian with plaintiff’s into street collision contributory denial, general is a rule. answer ‘1 saw, by highest or the exercise of the plea plaintiff as follows: That seen, degree automo on his have the southbound part care being by defendant, Lynch, position of im bile James A. driven being by plaintiff’s with peril danger of automo minent collided by plaintiff, in being operated north Tower Grove Avenue biles on degree thereafter, highest on by time the exercise of the of care safety with reasonable the means at hand and part and with therein, stopped his persons to have automobile and signal or automobile, his horn said the same aside sounded turned thereby ing on thus and device said automobile plain colliding automobile, but avoided with said southbound reply gen negligently so.” The carelessly tiff failed to do denial. eral only here, assigns Plaintiff, appellant error defendants’ ‘‘ 5,No. court instructs the
Instruction which follows: The operating you plaintiff if find and from believe the occasion men north on Tower Grove Avenue on automobile with an that said automobile collided automo tioned evidence and traveling prior the time Tower Grove Avenue and that bile south on collided, be said was and automobiles said southbound automobile danger being collided position peril in a came imminent highest degree saw, with and that exercise automobile part, of care on his could have said southbound seen peril danger being collided position thereafter, highest plain degree time of care the exercise of the appliances hand and with rea part tiff’s and with means and person and the safety and his said automobile sonable therein, automobile, you you his said find, to have turned *4 thereby col could, have avoided said find he and that you said auto lision, find, so failed to turn his and that fail, plain failure on aside, you mobile find he did and proximate a result part negligent direct and tiff’s was and that as aside, said automo failure his automobile turn collide, you plain instructs were caused to then the court bile& against defendants.” tiff is not entitled to recover negligence, and primary No. 1 Instruction submitted Plaintiff’s rule. No. 4 the case under the Instruction submitted humanitarian support plain- say no available evidence to that there was Defendants reason, it should that, for such and tiff’s humanitarian instruction complain given, cannot, therefore, he about not have been and given requ’ested were No. and Instruction 5. Defendants their contributory negligence, plaintiff makes specifically on complaint no on this instruction. (1) record, viz:: Was there sub- questions on this
Three arise 4 submitting No. support evidence to Instruction stantial 86 so, if was defendant’s
the cause under humanitarian rule? facts, plaintiff, re- (3), 5 can proper? Instruction No. any theory? against Mary Lynch, under defendant, cover Genevieve questions in stated. We rule the the order defendant, we have reference Hereinafter, I. where we use the term appears. Plain- it Lynch, James A. unless otherwise p. 13th, with his wife and eight m., January tiff testified about friend; a that be- from a visit to son, returning to his home he (east streets), and west avenues tween Folsom and Vandeventer Avenue, Grove about driving slight upgrade, a on Tower north, street; curb; and sleet on the that snow three feet from the east standing yellow at a block, a cab was that about the middle of the left) cab, (to “when box; pass this pulling call that he was out auto- Lynch coming from behind another all once I saw Mr. south ‘ ’ ‘ ’ (cid:127) direction; came that defendant in the same proceeding mobile going right my he was and when he saw over on side of the street right on swung away to hit and started skid skidded me he side of hitting me with the me. me headon and into He missed hit per hour. driving miles I was car, sideswiped kind of me. my car;” he first sideswiped . . . The hind of his car end lights from be- (defendant’s) “came saw defendant’s car when his him from I coming car. I that when first saw hind the other estimate my road, I was side of the about behind other car over ’’ abstract, plaintiff away. appears additional And, feet as in an forty “miles traveling than car was better testified that defendant’s per (defendant’s cars testified that these hour.” Plaintiff further around) running thé middle in about passed “were one he other behind this pulled out “from street;” way. . . . get I out of my couldn’t automobile into track and when collision oc- on and put I him I the brakes As soon as saw standing I curred was still.” sitting in Kracht, testified that he plaintiff, Fred witness he noticed two when (the yellow by plaintiff) his cab cab mentioned behind the fifteen feet south;” about “coming that “one was cars one roadster, and the behind coupe other. The front was one and as zigzagging big big car was kind car, it was a a sedan. car This swung car. got past around other me it this it little street and forty down the about feet coming north was (plaintiff’s) back end hit Lynch swung, car skidded around Mr. Dilallo’s I saw street. it went across the Mr. Dilallo’s car and ear watching zigzag I was because the collision before *5 curb on the car was close it. Mr. Dilallo’s turned to watch - the street. side of place on the east took east side. The collision skidding and coupe, it started big swung car around "When this I street. finally up going across and wound hit this other car thirty twenty-five or big be about speed car to estimate the of the believe, ear, going twenty I about miles miles an hour. The was other sitting I was looked like back hour. . . . From it an where ’’ big car. of this car hit front fender the little fender deposition wherein Plaintiff introduced a he testified driving midway Vandeventer; that he was between Folsom and south collision; plaintiff’s he car that when that before he first saw saw plaintiff’s (defendant) “possibly it; was feet” from fifty car he that street; traveling downgrade (2 and were on the that was ice snow he %) eight hour; lights per or 3 miles on or ten that the his car and skid; burning; car that plaintiff’s on did not made no at- he twenty tempt stop, got but in about feet of car to when pull right;” he, he “tried to over that under the conditions safety himself, passengers stopped could have his twenty his car feet. evidence, by plaintiff,
The above contains all the offered that pertinent question support whether was there submission of case under humanitarian rule.
Defendant, codefendant, as a for himself witness testified that Vandeventer; 150 feet the collision occurred about south of that he (vehicle snow); driving in the was track track southbound (west midway was between the of the outer track this track center track) track; rail of vehicle the outside the southbound street car by plaintiff’s was the center of the ear struck about left front door; lights car; on was that he see the northwest;” (defendant) working angle in “on an that he a little hour; going eight or per (traveling miles that he saw no was ten direction) any; plain- him and pass in front of did not same change was west of the did its tiff’s car of the center street and not angling I I “After saw him toward me collision. course before figured way. coming right my I him turn he was did not see either only do, pull there and that was to thing was one direction try accident, I right an which did.” On cross- to thei to avoid “straddling the that he west rail” examination said track; twenty him that it was feet from street car the southbound nothing curb; skid; there time did he the west that at no ‘‘ west, just track, I into and could turned track in the worn my I necessary. it was on side of the street. think was but didn’t coming turn angle, I but made no effort to or swerve at, saw him me and nearer curb my to the track west of automobile "Well, right me, I right say on he was me. wouldn’t until seventy-five away.” possibly fifty or feet that de- instruction was Plaintiff’s humanitarian degree highest saw, care could exercise
fendant south, from the approaching have seen automobile thereafter, by highest peril, the exercise time degree speed or to slackened the care, stopped to have have so
88 striking thereby to have aside “and have avoided and collid- turned ing with the and his automobile.” facts, plaintiff position peril
Under the was not in a pass ear in until defendant’s car to the left to around turned (2d) 1065; Henson, 282, him. 326 Mo. 30 S. W. [Phillips front of McCoy v. (2d) (Mo. App.), v. 60 Home Oil & S. W. Gas Co. 715.] being application plaintiff’s Such rule to of the humanitarian turning depend upon by will case the situation created out pass determining to his 'left to the car in of him. And front justified whether on the humani the facts submission of rule, plaintiff’s favorable tarian view the facts of case same we way the evidence. Defendants filed as we would on a demurrer to overruled., plaintiff’s ease, when did not demurrer the close but successs, thereon, again, stand filed demurrer at without situation, plaintiff In was entitled close the whole case. rule, exception in cases most favorable evidence- but this rule has an invoked, plaintiff’s where even from a own the favorable evidence theory case, contradictory of re runs counter and is to some other covery Tunget al., upon ex rel. v. Shain et plaintiff. relied [State (2d) where 434, exception 340 rule has an Mo. 101 S. W. And this 1.] case is con sought to be invoked from defendant’s evidence theory recovery. trary plaintiff’s to the and his [Elkin 600, Co., 951, (2d) l. c. St. Public Mo. S. W. Louis Service stated, supra, and cases there went We cited.] go charge permit him tot also speed. To of excessive jury, rule, defend under the humanitarian though ap-‘ running hour, an even eight ant’s car was or ten miles deposition defendant, would plaintiff’s pearing from speed. theory of excessive He contradiction of charge speed could on his excessive not recover theory that defend rule on the also recover under the humanitarian eight hour, and therefore ant's car was or ten miles traveling time, two theories etc. The stopped or down could have been slowed properly contradictory irreconcilable, cause cannot'be are Tunget v. Shain ex rel. theories. submitted on inconsistent [State al., supra.] et from car, when it came stated, Plaintiff, as testified that defendant’s away. De feet front, twenty or
behind the one in twenty-five that he plaintiff, testified fendant, deposition in his introduced away first car when he “possibly fifty feet” from safety obtaining, it, the conditions saw twenty feet. And stopped passengers himself, could have fifty possibly that he in his testified own case defendant stopping distance. as to seventy-five away, no estimate feet but made the evidence theory, invoke plaintiff, cannot But on his humanitarian stopped his ear deposition from that defendant twenty feet, stopping speed because the evidence as to is based on a eight per hour, ten miles which speed plaintiff evidence as to given cannot invoke appears for the reason above. It stopped car was occurred, when the collision and it will be noted try defendant did not right, swerve to his not because he did *7 time, not have but necessary. because he did not think it was In the any absence of speed stopping available as to evidence distance of car case, defendant’s on humanitarian we are clear that there nowas substantial evidence submit ease under that theory rule on the that defendant have stopped could in time or slowed down sufficiently to However, avert the collision. opinion
we are of the tending there that is substantial evidence defendant, by show that highest degree the exercise of the care, of right have swerved his car to the and averted the collision. We reach this conclusion from the evidence of defendant that he could right swerved and averted the collision, thought had he hold, such was necessary. therefore, We plaintiff sub stantial support evidence to submission of his the hu manitarian theory rule on the defendant, by the exercise of the highest degree care, right could have swerved to his and averted the collision.
II. Was defendant’s 5 Instruction No. erroneous? Plaintiff’s 4, submitting Instruction No. rule, cause under the humanitarian submitted, alternative, slowing theories, stopping, the three swerving, down or and we have ruled that there was not sufficient support theory evidence to slowing down, stopping or hence there was no support substantial evidence the instruction on the conclusion, three theories in however, the alternative. The that there no substantial support plaintiff’s Instruction No. 4 stopping slowing down, should not work affirm ance of the for if defendant’s Instruction No. 5 is erroneous. plaintiff The rule is that where a submits his case solely doctrine, contributory negligence on the humanitarian cannot interposed recovery as a defense to doctrine, under that an’d permits contributory negligence instruction which recovery to defeat under that [Doherty doctrine is erroneous. v. St. Co., Louis Butter 996, 339 742; Borgstede Mo. 98 (2d) S. W. (en v. Waldbauer banc), 1205, (2d) 373, 337 88 Mo. S. W. 378; l. Silliman c. Mun v. ger Laundry Co., 235, 329 Mo. 44 (2d) S. W. 159; rel. State ex Haid, 1224, Berberich v. 333 Mo. 64 (2d) 667; S. W. Francis Transportation (Mo. Mo. App.), Pac. Co. 85 (2d) 915, S. W. c. l. 918; City Co., Millhouser v. Kansas Public 933, Service Mo. (2d) 673; Larey Ry. S. W. Co., v. M. K. & T. 333 Mo. 64 S. W. (2d) 681.] above, Defendant’s Instruction 5 is No. set out con
venience, we set out its substance. This here instruction directed the (1) to find for That defendants if it was found: operating Avenue; (2) north on that his car Tower Grove (3) collided car; prior with the collision de- defendant’s position danger'of fendant’s car being peril in a became with; (4) collided exercise of the saw or highest degree posi- of care could have seen ear defendant’s thereafter, danger being tion of peril and with in time collided highest degree the exercise of the means and care safety, appliances etc., at hand and with to have turned reasonable collision; (5) plain- thereby his car have avoided the aside neg- aside; (6) tiff failed to turn his car and that such failure ligent; proximate that “as a result direct failure It to so turn his said ears were caused to collide. car aside” (if predicated will be observed directed facts found) finding plaintiff regardless of the fact that against primary case was and on submitted both the humanitarian rule negligence. Doherty solely case, supra, on the humanitarian was submitted
rule. The verdict were for the defendant and below among things, of plaintiff appealed, complaining, other instructions challenged Among for the was Instruction defendant. instructions you jury “The the that if believe and as follows: court instructs find from that the occasion mentioned in the evi- the evidence plaintiff against truck mentioned dence walked or ran the side of the you thereof, if further in the near the left rear fender evidence walking in plaintiff’s act so believe and find the that from you against truck, find, if so running the side of the said the injuries, any, plaintiff if sustained on said sole whatever opera- occasion, part of the any on the not due out particulars set tor of the truck mentioned in the evidence plaintiff is not herein, in that case in other instructions then and ’’ your for you recover find verdict the defendant. entitled to will (331 W. 55 S. case, supra, In it is Mo. Millhouser stated the l. 676) only properly in a case submitted (2d) that “the defense c. disprove facts is one or more of the basic on the rule humanitarian Doherty case, the in the consideration which that rule rests.” In the case, quoted court set from the of the instruction above out that only defense relative to the excerpt from Millhouser case the above observation that rule, made the in case under the humanitarian “Certainly, if the and then said: statement was rather'broad injuries cause of plaintiff of a the sole and conduct acts the defendant a verdict for negligent, was not then the rule, be the humanitarian Should a authorized. rule, which that upon facts disprove one or more the restricted to which, true, facts may affirmatively state of rests? show a Or by plaintiff, injury upon the place blame would entire appropriate instruction question submit jury? (The italics.) court’s We think correct, the latter rule otherwise the lawsuit compelling would be similar to a man to enter boxing contest and by dodging the rules restrict him to By the other fellows blows. In- struction merely presented the defendant for consideration of the jury the upon facts relied for its defense. If pre- the facts were as sented defendant, plaintiff was not entitled to recover under the humanitarian plaintiff doctrine. case, generally The done, enumerated his main upon instruction the facts which he sought a favorable verdict. Must a defendant content himself merely submitting negative instructions such as instructions number 4 and 51 We think not.” Doherty was approved, but the instruc-
tion in required finding that case negligence, if any, injuries was the sole cause of sustained, “and was not due to any negligence on part operator of the truck mentioned in the any particulars evidence in set out other instructions there- in”, present case, while defendant’s Instruction No. 5 told jury, among thé things, other could not recover if it were found that his failure to turn car aside “was the direct and proximate” cause collision. Borgstede In the case, supra, the verdict was for and de- appealed.
fendants Among assignments was the refusal of this instruction: “The you court instructs the find and be- lieve from the evidence in this case defendant William Wald- bauer atwas all the times exercising mentioned in the evidence highest degree of operation care in -of automobile, is, said very such care as a prudent careful and person would exercise under circumstances, the same or similar and that while said automobile being operated by said William Waldbauer the deceased walked into the automobile, side of said and that the said William Waldbauer *9 ours) know, (italics did or by highest degree not the exercise of the of known, care could not have walk that deceased was about to into automobile, you find, position the side of in said if so or a of was peril, by highest thereafter, in of the time the exercise degree care, speed, stopped, of to have slackened the swerved said automobile, given warning approach prevented as to or so guilty injury, said William Waldbauer not the defendant was then It negligence your must for the defendant.” verdict be proper the word and held that would have been the instruction or. the court said: been used instead of the italicized In that case Missouri, doctrine, a of a motor- “In under the humanitarian driver highest discovering required degree car is to the of care exercise peril pedestrian peril danger. a It whether that or is immaterial Contributory neg- negligence pedestrian. was created the the ligence passes solely under the out of when it is submitted the ease Munger humanitarian Laundry doctrine. Silliman v. Com [Citing pany, Haid, However, question and State ex rel. v. supra.] the negligence injured
whether issue party, the the is made where it case, de in the A injury was the sole cause of the remains ease. fendant in right has to submit properly cases have that issue ’? Borgstede jury. ted to the It will be noted that the instruction neg contributory case did not specific (1) contain a direction ligence finding recovery, (2) specifically require could defeat a not predicated negligence that the as the deceased facts sole injury, finding cause of a specific that defendant negligent not plaintiff’s as out in humanitarian instruction. set instruction in the and third of from the these omissions second Borgstede specifically the instruction in case covered are case, Doherty would be Doherty and we case instruction think the con likely less if it a further direction confuse contained tributory negligence recovery. could defeat not Doherty are Borgstede and the The instructions in ease therefore, are, exactly not humanitarian defense instructions 5 in No. respects Instruction defendants’ different some closing lan- Although again we refer to the repetitious, present ease. with instruction ended guage of No. 5. This Instruction defendants’ aside, automobile “plaintiff to turn bis said that if failed the direction part was you fail, failure on find he did and that such ours) (italics a direct CMi>d result negligence that proximate aside, said were automobile failure his automobile turn not you plaintiff is collide, instructs caused to then the cou-rt necessary it "We not deem against defendants.” do entitled to recover cause,” “proximate cause” upon “direct to enter discussion of defining ex- these proximate cause.” Efforts “direct affects'plaintiff’s 5,No. as it are numerous. Instruction pressions humanitarian least, say confusing extremely highly to- theory, negligence; easily layman, mean that and to the recovery the hu- under not, would bar his the sole cause or whether construing it conflicts the instruction manitarian rule. And so instruction), (plaintiff’s 4No. humanitarian plaintiff’s Instruction foiffid, predicated facts therein which told the should though you plaintiff, “even then the would verdict contributing negligence guilty of find that the himself was defense . . .” If a humanitarian said collision. is submitted a cause recognition practice, then when to have instruc- rule, such humanitarian primary and the conflict, contain the sole should, and- tion confusion in order avoid negligence not due provision may we term what plain Doherty case, also *10 provision the the defendant as in in de- considered negligence to be contributory not direction that cases where rule. In recovery termining the humanitarian under in a collision of guest injuries a sustained sues to recover- for auto of the defense that the cause mobiles and where makes the sole solely party, of a third collision was due ‘‘clearly jury that must advise the the defendant imputed negligence, any, party third cannot be (2d) 487, l. 85 S. W. c. plaintiff.” Moussette, 533, 337 Mo. [Watts Instruction No. 5 is er It is conclusion that defendant’s our 492.] roneous, effect, concedes, was entitled which rule, have and we to have his case under the humanitarian submitted right. ruled that he had such facts, against defendant,
III. plaintiff, Can under the recover Mary theory Lynch, presented? Defendants Genevieve wife, are husband and but were not such the time of the collision at giving Lynch marriage, rise to this Prior to her Mrs. was a cause. brother, Luepke. young John, years old, Miss She a fourteen County, who attended school in St. but came home week ends. Louis Sunday night, bad, degrees zero, It was weather four or five above wanted, Lynch Mr. Luepke go was at the home. John to his night sister, Lynch, him, school that and asked his now Mrs. to drive but she refused of the weather and road conditions. John then because (age given), John asked his older brother not and he refused. gone his., car,
have' school on the street but he would have had to car, walk after he left the street “and it was a cold some distance and, using night.” Lynch Mr. to make the volunteered drive Luepke family car, Luepke along, the drive and Miss went mad© trip. Luepke, father, Mr. the collision occurred on the return nothing car at was not at home and knew about use of the urged peremptory It direction to time. that under these facts Lynch given. Mrs. find for should been Plaintiff séeks to fasten liability upon Lynch Mrs. on the facts relative to agent Lynch ‘Mr. her brother to his school made her for the taking Lynch purpose trip. stated, of this As Mr. to make volunteered Lynch, Mrs. drive. He did not make the hence there could drive for agency. True, interested, no because it her be she was brother school, the interest of who wanted to be driven the sister in getting safely his school would not under the facts her brother here agency Lynch. Mr. Mrs. the relation of between create trip joint enterprise. In Keim v. et Neither was the Blackburn (Mo.), 280 S. W. facts were about these: Plaintiff al. by George Blackburn, W.
injured-by car owned and driven Mary Blackburn, Roach. time, as can determined” one “so far Mary daughter W., along W., G. Roach were G. car. evidence, named as defendants. At the close court involuntary daughter. An non- directed verdict for the father and daughter. leave, etc., to the father and Motion was taken as suit plaintiff appealed. nonsuit was overruled and the set aside the *11 guest Roach was a at time Blackburn home and took thei ‘‘ out, car pleasure shown, whether for Mary or business was not and accompanied Blackburn father, him.” There was no W., any G. knowledge car, had of the of the and use there was noth ing to Mary, any way, attempted show that direct Roach’s supervise course operation says "or to car.” Then court, although "may Mary have been her father’s chauffeur it, riding and accustomed as such to use the the time was at facts, these as will submission of stated, not authorize the her In ability any proof to the party the absence that she taking using of the car in her father’s behalf or that any any during trip she in manner or at time directed or at tempted operation.” in that behalf to control its use or The action refusing of the trial court to set aside the nonsuit was affirmed. only present case, The Keim difference between the case and the liability so far daughter, as concerns the is that the Keim purpose trip disclosed, present case of the was not while in the purpose Lynch young case the take the Mrs. was to brother of nothing is Lynch, his school. There here to show that Mr. Lynch supervision of Mrs. -trip, acted under or that he was sub any ject supervision way, and we have to her ruled the facts support agency. (Mo. App.), Counts v. do not Thomas (2d) 416, l. c. considers the Keim Blackburn S. W. says "it will be noted that in the Blackburn case the Su upon lays special importance Mary the fact Black preme Court taking rising nothing to do with her father’s car had burn guest. fails to show she was more than a that the record mere clearly intimates that she taken the car out court or had The purpose trip, pur jointly in the whatever that been interested might have been different.’-’’ what pose was, the result But there present that in the support for the contention case Mr. said is no agent Lynch .Lynch acting trip Mrs. as the that the was a request joint enterprise. We think directed verdict for given. been Lynch should have Mrs. defendant, Lynch, affirmed, judgment Genevieve should be Lynch, James A. should as to be re Ferguson remanded. It is so ordered. and the cause
versed CC., Hyde, concur. foregoing C., adopted Bradley, opinion PER CURIAM:—-The judges All concur. of the court. opinion
as the