Hertz v. McDowell, 214 S.W.2d 546

383 an embolism. might start system injected the venous stance into Any con injuries of kind. might it; Trauma to start the veins materially is con up the circulation dition, say, I should that slows it; produce various kinds very frequently it. ducive towards Falls region.” The mortem post injuries, pelvic in the particularly body “ex negative parts all as to (autopsy) on deceased was post At artery.” the close pulmonary formed clot in the cept Pulmonary em following: (1) of death: “Cause mortem was the The coroner’s verdict as to (2) of left femur.” bolism. Fracture post In the shown mortem. cause of death was same as following: injury is the “Did result appellant filed answer body injured? Intracapsular Parts of fracture death? Yes. Pulmonary any permanent embolism. Exact nature of femur.

left injury? We rule that was substantial evidence that Death.” there contributing the fall was the cause was Morrow v. to the formation of the embolism. Orscheln Bros. cause 1166, 138, Lines, App. (2d) (13); 151 c. Truck Mo. S. 1. 147 (Mo. Telegraph App.), v. Schroeder Western Union Co. 129 S. W. 917, (2d) (11); c. 923 1. Waterous Columbian National Life Ins. (2d) 456, 1. (2-4). 186 W. c. 459 S. judgment affirmed and should be it is so ordered. Dalton and CC., Osdol, concur. Van opinion

PER foregoing CURIAM: The adopted by Bradley, C., opinion as the of the court. All judges concur.

Lyde Executrix, Respondent, v. Wallace Hertz, H. McDowell, G. and Edward B. Daugherty, McDowell, Clara M. doing busi George

ness as McDowell Company, Tire Howard Brown, Appellants. 40698. 214 (2d) S. W. 546. No. Banc, Court en November 1948. Berger, Morrison, Nugent, Henry Buck, W. H. Hoffstot (cid:127)& appellants.

Hecker Buck for Beeves, Jr., Henry Eager,‘Kenneth L. Albert I. E. Midgley, and n &. Blaclcmar, Newkirk, Eager, Midgley Swanson respondent. executrix of the will of her son ^[547] VAN OSDOL, C. Lyde IT. Alfred Hertz instituted this action as W. Hertz for wrongful death. Sections 3653 and 3654 R. S. Mo. R. S. A. Alfred W. Hertz, years a old, bachelor died a injuries as result of sustained at the intersection of 12th and Streets, Walnut City, Kansas when by by he was struck a truck owned defendants-appellants, McDowell Daugherty, and and driven their employee, defendant-appellant jury Brown. The returned a for verdict the executrix, awarding damages. $7000 The appealed defendants City Kansas Court Appeals, seeking of ensuing reversal judgment on assigned grounds the trial court had committed errors in giving and instructions, refusal of errors, which defendants-appellants contended, resulted in an award of damages. excessive City Kansas Court Appeals judgment affirmed (203 S. W. 2d 500); however, upon Cave, J., dissent P. case was transferred to this court original ap on as if here finally canse may determine the we where Missouri, 1945. V, 10, Article Constitution peal. Section widow, mother Hertz, executrix, a Lyde H. original plaintiff, .The this court the January 14, and order of deceased, died administrator de bonis non with the will annexed of estate party plain- as been substituted deceased, Hertz, has Alfred tiff-respondent. “plaintiff,” referred to

The administrator will be hereinafter and as “defendants.” defendants-appellants fully restate the which unnecessary to here evidence

It will be fairly accurately opinion of the fully, and stated in the has been although will refer- Appeals, we make some Court rulings upon in connection with our the con- ences to the evidence parties. tentions B on plaintiff’s

Defendants assert Instruction the measure (a) erroneous. is contended the instruction failed It i^as jury include advice on the issue of the life mother’s ex pectancy (b) submitting ag and was erroneous in circumstances of gravation. follows, The instruction reads as your plaintiff

“The court instructs the if is for verdict then fixing damages you age will take into consideration the and pecuniary you deceased’s mother loss believe from evidence she as a direct result of the death of son, her fixing damages, you may take into consideration the miti- gating aggravating circumstances, any, if upon attendant your injuring fatal if deceased verdict will be in lump you such sum as whole stated in one sum as believe from the represent will evidence fair and reasonable compensation for the sustained, your aforesubmitted loss so may but verdict $10,000.00. exceed “The court solely mentions this amount because such is the maxi- recovery mum in a death action and because such is the amount sued ’’ for. (a) emphasize Defendants the facts that the mother at the time years of her son’s death was 89 and, old according to the American Experience of‘Mortality (see Table Section 5968 R. S. 1879) intro- duced into evidence defendants, the mother had an “expectation of life” of 1.69 years, but and of but 1.42 at the age of 90 when the cause say was tried. Defendants the mother’s life expectancy was the issue,” “vital and the should have been specifically instructed on the “issue.” In the of case Schaff, McCord v. 279 558, Mo. 216 S. 320, W. (action under Employers’ Federal Liability Act), cited defend-

ants, an instruction jury authorized the to take into consideration age the of deceased and did not anywise advise the jury to take

388 plain parent, the deceased’s expectancy life of into the consideration plain of expectancy The life erroneous. tiff. The instruction was therefore, became it, deceased, and much that of tiff less than w’as based should to be assessed damages the just verdict that vital ato nature, of who, course plaintiff expectancy life upon the Salisbury Heath v. cases of import like are the die first. Of would expect life mother’s (the 2d 31 Co., 27 S. W. App., Tel. Mo. Home May deceased); minority of years the ancy less the might be than (the 161 249 S. W. App. 610, berry Co., 211 Mo. Iron v. Mountain their that of less than and mother was expectancy life father the 651, App. Co., 200 Mo. son) & Power ; Light v. Kansas Stevens de one, widow (the expectancy plaintiff the 630 208 S. W. life control). In Stottle husband, die should ceased who would sooner (action 2d 1190, W. 433 Co., & 321 18 S. Chicago v. R. I. P. R. Mo. the was Safety Appliance Act) deceased for violation the Federal given 23; the years wife was 27 old at time of his death the plainly based instruction was apparently correct—the instruction life, “and this is husband, of the the shorter expectancy on the life ’’ wrong is because of general injury the rule. Where the ought the jury to measure minor, ful a it has been said the death of necessary value of child parent-plaintiff the the to the minority. Pac. parent during Parsons v. the the child’s Missouri Himmelberger-Harrison Co., 286, 464; R. 94 Mo. 6 W. v. S. Coleman 254, Land & Mo. 79 W. 981. In the ease App. Lumber 105 S. B jury

at bar authorized the to take into considera the Instruction age mother, language of the tion the the instruction contained no susceptible amount award misleading construction should be governed by that the computation age of the who, nature, longer. son in the course of would lived the But have obvious, give say, it as defendants did not instruction “expectation specific advice to the of life” of the mother. (on damages compensatory Instructions the measure of under the wrongful statute) approved sections of death have been have damages, neither limited or detailed the elements of nor directed estimating damages in the manner of further than recovery plaintiff’s just compensation limit the fair loss which has or a necessary would be sustained as re- wrongful general sult death. These in- measure structions, effect, language follow of the standard fixed 3654, supra. Steger Section v. Meehan, Sup., See Mo. 63 S. W. 2d 109; Wells, 892, 31; Koehler 323 Mo. 20 S. 2d Morton v. South- Telegraph Telephone Co., & Avestern 280 Mo. 217 S. W. 831. Goltra, See also Menard v. W. 2d (wrongful S. Illinois). that, death statute It seems when the measure of dam- ages generally but in effect according is submitted to the standard in request if he desires should statute, the the defendant fixed plaintiff’s elements of limiting detailing the structions further- Steger v. Mee to them. directing jury how estimate damages or Co., Telegraph Telephone & han, supra; Morton v. Southwestern 2d 851 S. W. Kuril, 351 Mo. supra. And see Crabtree Act). Safety Appliance (action of Federal on violation based circumstances of B of given (aside from the submission Instruction recovery to the infra) will limits the aggravation of we treat which mother pecuniary for the loss the compensation fair and reasonable of her son. as a direct result the death (as they, “foreclosed would have stood Defendants concede Steger, contention) as the defendants” in the to the did instant requested cases, they had no instruction supra, Morton and Crabtree assign 2; as refused-Instruction and defendants error defendants’ follows, in reads as instruction, the refusal of that which case, Lyde in plaintiff court instructs the that this “The Hertz, support during H. from Alfred W. received some Hertz his right recovery, if lifetime, any, predi- that basis her is upon cated the fact that the deceased would have continued to furnish support some to her until the time of her death. You are further ninety years at time age instructed that this and that you considering in will her damages, any, you amount allow as if may expectancy take into consideration life years of 1.42 of a ninety years age, given woman as in the Experience American Mortality, together Table of with the state her health and other you judge facts and circumstances from which length can of time plaintiff may said You live. are further instructed that in computing recovery, any, you governed the amount of if shall be the amount actually the deceased the.support contributed to and main- plaintiff during life, tenance and the amount he would support have contributed her and maintenance had he lived.” We believe the refused might No. 2 subject Instruction criticism in emphasizing the “expectation in shown of.life” Experience American Mortality Table of without .in appropriate way advising jury they judges were the of the Table’s evidentiary value when considered in connection with the other circumstances hypothesized might have tended add to or detract from weight its and value. See Annotation 87 A. L. R. pages 915-916; L., Mortality 19 R. C. Tables, 13, p. 224; See. Stevens v. Light & Power supra. And in our opinion the giving of the instruction would have been prejudicially erroneous in at least one respect, is, that advising in that, in computing the amount of recovery, they governed should be the amount money the son actually had during contributed his life and would have contributed had he lived. The loss as contemplated by the statute recovery “amount limited, case,

not to be instant he lived. There money” have had deceased contributed would tending in his lifetime was evidence to show deceased introduced and, to his contribu- resided the home of the mother addition tions “of money” to his mother, did tasks and rendered services fully (more home, such an described in and about the infra) family might and pe- adult son the man of household do. The the cuniary may, by parent loss for which be recovered for wrongful all the death of an child is in eases limited to adult not by the which been the parent would have contributed to the may child had the child The lived. loss consist the various ele- ments of enter pecuniary value that the domestic relation of into parent child, living family, and in one or otherwise. In such cases the aim way of the law in a repair is to the loss sustained parent. L., the Death, 8 R. 115, p. C. 840. And see 16 Am. § Jur., Death, 182, pp. 122-123; Chicago, Talbert v. R. § I. & P. R. Co., 1080, 321 Mo. 15 2d 762; S. W. Bolino v. Illinois Terminal R. Co., 1236, 355 Mo. (action 200 2d 352 S. W. under Em- Federal ployers’ Liability Act). proffered The being instruction erroneous, trial the court did not err in refusing requested it. A instruction must be correct or the may court refuse it committing without error; reversible and when erroneous requested instructions are the trial court duty is under no to modify correct or any way. them in Schipper Brashear Truck Sup., Mo. 132 S. 993; 2d I, Vol. Raymond, Missouri Instruc- tions to Juries, 1, p. 2. § expressed by legislative Sections 3653

The intent as and give computing damages the a broad discretion in to supra, is prescribed, the death, upon within limit based wrongful the every which, and ;pecuniary loss of kind character under all the cir case, necessarily particular would of the result cumstances from the (and jury, in a death, proper case, those entitled to recover the the may diminish or increase amount also because circumstances may they mitigation aggravation in wrongful which find of the act, neglect, death). or default which caused the Steger v. Meehan, Nafziger Baking Co., Marlow v. supra; S. W. 2d 115. Attending (b) error authorizing the contention of aggravation circumstances of consider believe submission was —we alleged specific proper. negligent The had acts of defend- recklessly performed and ants were with indifference to rights plaintiff’s principal hypothesized of deceased. instruction rights disregard safety “reckless of deceased and the public” conjunctive hypothesized negligent with acts of de- fendants, hypotheses supported were tending evidence show that about 4:45 the afternoon of the fatal weather —the “nice, the east on sunshiny” (from was truck, approaching —the Street) busy 12th downtown intersection of 12th Walnut.in City, being speed was driven or 30 miles at a rate of 20 per hour, it crowded”; was that “Easter time and the streets were the deceased body was struck. and his thrown truck 12% point feet from the impact; truck, downgrade, moving that the had against light; traffic the intersection the red entered approached (a pedes- that deceased had observed driver defendant and that did green light) traffic walking with was others, who, with trian, did sound driver not defendant coming.’ The the truck see emergency brake. “There attempt to use warning, nor he .did immediately emergency)” after (foot or absolutely no brakes was casualty. testified; other evi- and there was driver true the defendant It is hydraulic on .tending foot brake to show introduced dence him,” there also evidence suddenly “gone out on had but truck foot-braking apparatus’ deterioration tending to show that the a from and tear period over time wear as would occur such was A whereby pressure gives gradually. out witness said the the brake by a giving pedal be “that faded out.” gradual out would indicated failing for use emergency the reason to brake explaining In de- get he to trying gear, driver testified was the truck “in fendant If brake I it in reverse ... the foot wouldn’t hold knew put to emergency expert wouldn’t hold.” But an brake witness tes- emergency purely brake was mechanical and failure of tified system hydraulic foot-braking nothing would have do to with the emergency brake. There was also evidence tending to show warning no horn or device on there was effective the truck.

AVehold the trial did submitting court not err in the circumstances aggravation. evidence, The from standpoint considered a most was, plaintiff, to believe, favorable we justify sufficient to the find negligent ing. that the submitted acts were attended such circum stances as to evince a disregard for rights reckless of others and indicatory a want care consequences. indifference to. Spalding Robertson, 357 Mo. 206 S. W. 2d 517; Marlow v. Nafziger Baking Co., supra; v. Thompson, Adams App., 178 S. W. 2d 779. supra,

As stated the defendants’ contention of exeessiveness urged being was due to the (assigned) errors in the giving and refusal of instructions; nevertheless, although we have against ruled defendants’ conténtions error in instructing the jury, we will examine the pertinent evidence to the contention excessiveness of said, award. As has been jury may exercise a broad computing discretion in damages for wrongful death. The jury’s discretion not must be exercised arbitrarily amount of —the jury’s But the evidence. justified must jury’s award it has been with, unless interfered not be will exercise discretion

clearly abused. years old March mother became evidence showed deceased’s hip, a broken years ago twenty-five she 28, 1946. About could subsequent ocasions. She accidentally on two had fallen and anything except her a doctor for had not had walk at all. She three for about no colds years, had suffered many, many and leg for enough print.” “large with newspaper a years. could read She original all her hearing; and had diffifficulty with her She had no opinion Physicians were of the fillings. teeth with but two small condition,” general her health her not affected leg “has her age. had no average” people for of that She than the “better was obliged The shown fact that she was organic or infection. disease leg hip not con- pain in her and was a because of take sedative way. longevity any affect her physician a sidered family The son Alfred lived with his mother residence which gave average” she owned. was an architect. He her “on the Alfred per month, the sum of in cash and checks she $125 expenses employ paid a maid. “He used for household all the awnings house, for utilities; paid any- he for new and whenever thing necessary, painting, like he did paid either that or it being . practically supported done. He me. . . stop He would buy something, pair stockings down town and me if I needed them, groceries Wolferman’s, many they at times groceries had very nice, stop fruits that were and he would bring some everything him gentleman home with ... he did that does, things. the house mended all the little If a screen was out he put in, lawn, fixed it and it back and he raked the grass mowed the things many . . he . did.”

When the cause was tried it certainly could not be said the mother approaching death, or that her life would be limited to par- ticularly period brief time; and it is clear there was substantial evidence the help son rendered filial and services to his invalid mother very substantial pecuniary additionally worth to the contribu- tion of supplies articles and in kind. And we have seen the for the loss these (properly benefits ascertainable from and after the date of the son’s death) could be increased in the exercise of their discretion because the ‘submitted aggravation circumstances attending negligent again acts of defendant. See Nafziger Marlow v. Baking Co., supra. Viewing pertinent the evidence question excessiveness award from viewpoint most favorable to plaintiff, we believe an in- award jury’s interfere with the court should appellate stant action. affirmed. judgment should Dalton, CC., Bradley concur. ordered.

It is so Osdol, C., opinion foregoing Van PER CURIAM: The All concur. opinion en Banc. of the Court as the adopted Railway Prince, Respondent, v. O. C. Southern Com (2d)W. Corporation, Appellant. 40608. 214 S. pany, No. 707. One, Division November 1948.

Cyrus Crane, Woodson, Winston E. James F. Walsh and Sam D. appellant. Parker

Case Details

Case Name: Hertz v. McDowell

Court Name: Supreme Court of Missouri

Date Published: Nov 8, 1948

Citations: 214 S.W.2d 546; 358 Mo. 383; 1948 Mo. LEXIS 589; No. 40698.

Docket Number: No. 40698.

Court Abbreviation: Mo.