LILLIAN B. HILLIS v. HOME OWNERS’ LOAN CORPORATION, а Corporation, and LOUIS E. KOONTZ, Appellants, CARRIE ALLEN RICE, Defendant.
37,119
Supreme Court of Missouri, Division Two
September 25, 1941
Rehearing Denied, October 25, 1941
154 S. W. (2d) 761
Motion to Transfer to Banc Overruled, October 25, 1941.
I. Without pointing to any provisions of the act (
The Home Owners’ Loan Act provides for the creation of “a corporation to be known as the Home Owners’ Loan Corporation, which shall be an instrumentality of the United States, which shall have authority to sue and to be sued in any court of competent jurisdiction, Federal or State . . .” [
II. Respondent‘s Instruction No. 2, directing a verdict аgainst appellants for primary negligence, was predicated upon findings, among others, in the conjunctive that appellant Koontz operated his automobile at an excessive and dangerous rate of speed; that appellant Koontz could have but negligently failed to slacken the speed of his automobile; and that appellant Koontz could have but negligently failed to turn or swerve his automobile. It is not controverted that appellant Koontz was acting within the scope of his employment for appellant Home Owners’ Loan Corporation on the occasion in question.
(a) Appellants question the submissibility of respondent‘s case only with respect to Koontz‘s duty to slacken speed, and the statement of facts will be limited accordingly. The collision occurred sometime after еight o‘clock on the morning of February 4, 1938, in St. Louis at the intersection of Gratoit, an east and west street, and Sixth streets, a north and south street. These streets are approximately thirty feet wide, paved with cobblestones and intersect at right angles. It had been drizzling and the streets were wet. Mrs. Rice was operating a Chrysler sedan, the property of herself and husband, west over the north side of Gratoit. Her husband occupied thе front seat with her. On the rear seat, in order from the north, were plaintiff‘s husband, Lee Hillis, plaintiff and plaintiff‘s sister-in-law, Mrs. Millikan. Mr. Koontz was operating a Buick sedan north on Sixth street, which has a double street car track. The building lines on Gratoit and Sixth streets are ten feet back from the curb lines and sidewalks occupy the intervening space on the southeast and southwest corners of said intersection to the buildings erected on the building linеs at each of said corners. The building on the southeast corner constituted some obstruction to the view. Mr. Koontz had been over the intersection frequently and was familiar with it. There was no traffic or parked cars to interfere with the movements
(b) Appellants say that respondent‘s theory of negligence based on excessive speed and respondent‘s theory of negligence based on a failure to slacken speed are inconsistent and self-destructive and the instruction was erroneоus. Appellants stress Elliott v. Richardson (Mo. App.), 28 S. W. (2d) 408, 410[2, 3]; Tunget v. Cook (Mo. App.), 84 S. W. (2d) 970, certiorari quashed, State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S. W. (2d) 1; Dilallo v. Lynch, 340 Mo. 82, 88, 101 S. W. (2d) 7, 10[4, 5]. These and other cases are discussed in Hillis v. Rice et al. (Mo. App.), 151 S. W. (2d) 717, 719-724; wherein a judgment in favor of the instant plaintiff‘s husband for damages resulting from the injuries here involved was affirmed, and we need not repeat what is there said. We are in accord with the rulings that one may not base a recovery on conflicting and self-destructive theories, but from the nature of the issue a ruling ordinarily seеks the facts.
Appellants’ reasoning that a finding under one of the specifications destroyed the other because negligent speed means going too fast to be able to stop in the available distance is in the teeth of
The “proximate cause” of an injury, in jurisprudence, is synonymous to “legal cause,” and is not necessarily restricted to the cause last operating in time and space. It is akin, in logic, to what is called an “efficient cause.” In personal injury actions it signifies the breach of a duty or duties to the person injured. Ordinarily a plaintiff may predicate a recovery on one or more or all of several proved concurrent breaches of duty owed by a defendant or defendants. What a defendant‘s conduct was is a question of fact. What a defendant‘s conduct should have been is a question of law. Koontz had the lawful right to properly operate his automobile on the highway. This right was not an unrestricted privilege (see, among others,
The basic thought underlying the statements with respect to the theories of recovery being inconsistent in Dilallo v. Lynch, supra, as there pointed out and supported by the authorities cited, is the rule that a plaintiff may not take advantage of testimony contradictory to and at war with plaintiff‘s testimony and the fundamental theory of plaintiff‘s case. (See аlso State ex rel. v. Shain (Mo.), 125 S. W. (2d) 41, 43[2], and cases cited; Smithers v. Barker, 341 Mo. 1017, 1023[1], 111 S. W. (2d) 47, 50[1], and cases cited.) The remarks were directed to an instruction predicating a recovery on defendant‘s duty to stop or slacken speed under the humanitarian doctrine based on defendant‘s deposition that he was traveling eight to ten miles an hour, when Dilallo testified that he (Dilallo) was traveling twenty miles an hour and was pulling out to pass a parked cab when he saw defendant‘s automobilе twenty or twenty-five feet away, approaching from behind another car over onto Dilallo‘s side of the highway at forty miles an hour. There was no testimony on which to predicate a recovery on defendant‘s ability to stop his car in the available distance when traveling forty miles an hour and, of course, plaintiff‘s testimony that defendant was traveling at forty miles an hour was irreconcilable with defendant‘s testimony thаt he was traveling eight to ten miles an hour and inconsistent with any theory, under the evidence available to plaintiff, that defendant could have stopped under the humanitarian doctrine. A plaintiff‘s failure to plead or to establish a factual ground of recovery, see also Crews v. Wilson, 312 Mo. 643, 651 (II), 281 S. W. 44, 46 (II), presents issues differing from instructions submitting self-destructive theories, and factual situations arising under the humanitarian doctrine are not to bе confused with issues restricted to a defendant‘s primary negligence.
It is apparent from the opinion quashing our writ of certiorari to review the Court of Appeals’ ruling in Tunget v. Cook, supra, that the facts set out in the record made by the Court of Appeals and to which we are confined in certiorari proceedings were too meager to disclose any conflict of rulings upon the same or a like state of facts.
(c) What we have said disposes of appellants’ kindred contention that one or the other of appellants’ refused instructions seeking to
III. Error is predicated upon the admission of the following testimony, elicited from appellant Koontz by counsel for defendant Rice: “Q. You know that it is the law of the State of Missouri that when two vehicles approach an intersection at approximately the same time, the vehicle to the right has the right of way? A. Yes, sir.” Appellants then interposed a general objection, which the court overruled, and appellants excepted. Respondent says, among other things, that the issue is not for appellate review because there was no motion to strike or request that the jury disregard the testimony. Harrison v. St. Louis-S. F. Ry. Co., 339 Mo. 821, 828[1], 99 S. W. (2d) 841, 843[2]; and Wolfson v. Cohen (Mo.), 55 S. W. (2d) 677, 680[6], among others, sustain this position of respondent.
IV. Appellants assign error in the court‘s refusal of their instruction predicating a verdict in their favor on certain hypothecated sole negligence of defendant Rice. We shall not detail the testimony. Koontz testified that the collision occurred north of the center line of Gratoit street; that he made no right turn onto Gratoit street; that “it wouldn‘t have been much of a triсk to turn into Gratoit street;” that he only turned about a foot to the right; and that the Buick‘s bumper hit the left rear fender and bumper of the Chrysler. This testimony, not contradicted by other testimony, left no foundation on which to base a sole cause instruction; because had Koontz performed his duty by turning to the right (which admittedly he could have performed to the extent of turning right onto Gratoit) before the Buick crossed the center line of Grаtoit and struck the Chrysler there would have been no collision, and this neglect of duty at least concurred in bringing about the collision. [Gould v. Chicago, B. & Q. Rd. Co., 315 Mo. 713, 726 (VIII), 290 S. W. 135, 140[12]; Schuetter v. Enterprise Comm. Corp. (Mo. App.), 34 S. W. (2d) 976, 977 [3]; Felts v. Spesia (Mo. App.), 61 S. W. (2d) 402, 405[5, 6].] We are in accord with what is said on this principle of law in Peppers v. St. Louis-S. F. Ry. Co., 316 Mo. 1104, 1113 (IV), 295 S. W. 757, 761(IV). [See also Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 1101, 111 S. W. (2d) 54, 59[7].]
V. The amount of the damages. Respondent was fifty-five at the time of the collision (February 4, 1938), and prior thereto had performed part of her housework and enjoyed very good health. After the accident she could not sit up, was taken to the City Hospital in an ambulance, and X-rays were made of her spine. They disclosed fractures of her first and second lumbar vertebrae, which were “telescoped, pressed together” with the de-
Respondent testified that at the time of the trial (October 9, 1939) she was conscious of a dull ache and pain in her back; that this would increase upon movement or excitement; that she took aspirin; that she had experienced nervousness, sleeplessness, general weakness and had suffered from shingles and high blood pressure; that when using stairs, she would support herself on the banisters; that when she walked around the yard a little, she would become weak, and since June, 1939, had spent half of her time—“down.” Cross-examination developed that when respondent came to St. Louis in June, 1939, she made a week‘s trip down the Mississiрpi, which she thought had been beneficial; and she testified that she had been gradually showing improvement.
Dr. Olney A. Ambrose testified that respondent‘s second lumbar vertebrae was crushed fifty per cent, and the first lumbar about twenty-five per cent; that the discs between the two vertebrae had been apparently obliterated and were being absorbed; that the soft structure, muscles and ligaments, had been damaged and respondent‘s spine was rigid from the border of the lower rib to well down in the back, and that respondent‘s condition was fixed and permanent and would cause pain and discomfort for a long time to come, especially upon movement.
Dr. Warren G. Marston attended respondent. He recalled no injuries other than to the two vertebrae. Respondent also consulted him in October, 1938, and June, 1939. His examination in June, 1939, showed the frаctures completely healed in that no further surgical interference was needed.
In Kieffer v. St. Joseph (Mo. 1922), 243 S. W. 104, a judgment for $15,000 was reduced to $10,000. Kieffer, a carpenter by trade, suf-
In Mount v. Western Coal & Mining Co. (1922), 294 Mo. 603, 614(III), 242 S. W. 943, 946[8], a coal miner, earning $5 a day when working, suffered a fracture of the spinous processes of the eleventh and twelfth dorsal vertebrae. He suffered much pain and still suffered and would continue to suffer some. His use of his legs was impaired and he was unable to get about, except with the aid of crutches. He was more or less permanently disabled for life and likely could not resume his trade. Judgment for $20,000 was ordered reduced to $15,000. [Consult also Looff v. Kansas City Rys. Co. (Mo. 1922), 246 S. W. 578; Reynolds v. St. Louis Transit Co. (1905), 189 Mo. 408, 88 S. W. 50; Page v. Payne, 293 Mo. 600, 240 S. W. 156.]
Respondent cites Vitale v. Duerbeck, 338 Mo. 556, 568 [5], 92 S. W. (2d) 691, 695[9], and Potashnick v. Pearline (Mo.), 43 S. W. (2d) 790, 793[8], affirming judgments for $30,000 and $25,000, respectively. These cases disclose mоre serious injuries than the instant record.
If respondent will remit, within ten days, $7000, the judgment will be affirmed for $18,000 as of the date of original rendition. Otherwise, the cause is reversed and remanded for new trial.
Plaintiff‘s appeal is dismissed, and the judgment against the appellants-defendants is affirmed conditionally Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.