*1 91 suggestion There is an apparent appellant’s brief that it had respondents’ damages tendering minimized the machines It back. says: “Moreover, property still continuing is on hand tender has been (respondents) to made its return.” But point litigant. not briefed either We think the tender could not operate justify December, The the verdict. conversion occurred in 1937. appellant Thereafter offered to property upon return the pay ment of expenses. $500 as reimbursement for its time and Respondents rejected brought June, offer this suit in 1938. tender 17 appellant’s was made later in answer, months amended offered forthwith and thenceforward return property de court, expense liver it into them; but was not done. damages The measure of was the value of property. The conver sion complete punitive^damages had become were claimed. weAs showing understood the law, was insufficient to reduce re spondents’ claim damages though nominal even punitive no dam ages J., 111, p. 258, 270, were awarded. C. p. 144, sec. sec. 68, sec. p. appellant 146. If promptly had tendered property back when respondents’ it learned of its ownership, mistake as our con clusion instead, would be different. But $500, it first demanded then did not tender until 23 months after make the conversion brought. and 17 months after this suit was stated, sustaining
For order of the circuit court reasons for new respondents’ motion trial is affirmed. 25, 1941; adopted
Div. October all concur. opn. 13, Gantt, en all 1942; except bane June concur opn. adopted Div. 2 absent. J., motion; 1942, on court’s own all concur
August 12, opinion modified except Gantt, J., absent. motion; all 8, opinion modified on court’s own con-
September Gantt, J., except absent. cur Ap
Burley Company, Corporation, Oil v. Central States Jones pellant. W. 914. (2d) 37590. No. One, July 28, 1942. Division Denied, September 8, Rehearing 1942. Overruled, October 1942.
Motion to Transfer Bane *2 Price, Major appellant. & Alexander for Morris E. Osburn *3 Henderson, Dempsey Lane B. Edwards and D. L. for re- Waldo spondent.
HYDE, damages personal in- is an action for C.—This judgment, juries. $10,000.00, Plaintiff had a and from verdict for thereon, appealed. defendant entered has assignments go only and to instructions amount
Defendant’s May 2, 1940, Plaintiff, wife, another, verdict. about 7 a. on m., truck, riding plaintiff pickup seat, Ford were in same north driving, going Highway About miles south on U. S. six #63. evidence, his (just Axtel) according of Macon north of large gasoline transport rear was struck from the truck, warning. plain- alleged that, place, petition
Plaintiff’s at said time defendant, highway, right (west) tiff on side of “carelessly negligently drove agent Bailey, R. J. carelessly truck) (defendant’s operated transport said truck into, run strike negligently caused, permitted allowed and same to plaintiff vehicle of rear of the motor and into collision with the in- violence,’’ causing great etc., with such force jured. contributory negli- general plea denial and
The answer was negligently op- (1) alleging, among things gence, other (2) that (east) pavement; wrong erated his truck on side cars negligently allow he failed turn his so neg- left; (3) that he going pass same direction center ligently across line permitted his truck to swerve east pavement. reply denial. pavement where the of the accident at a
The scene for about straight ran north and south level, road almost *5 high- of the was west quarter a mile. The Wabash Railroad track between the grader ditch way between. There was with fence no deep way feet right about two pavement and the railroad 9-foot of two eight pavement consisted about ten feet wide.' The or It had line between. black center a one-foot strips concrete with day and the clear in width. The was six feet shoulders about earth dry. pavement was driving about south at showed was
Plaintiff’s evidence pavement, of the right (West) side hour per 30 miles on the or was plaintiff’s car line, and that center completely west of black over causing turned truck, it to by from behind defendant’s struck testimony corroborated own highway. Plaintiff’s off by witnesses who came other occupants of car and other his rubber marks on burned observed the scene of the accident and witnesses truck. These of defendant’s made pavement the tires leading marks sets were two double of tire that there ten truck had highway (defendant’s left the truck tank) and that one set at each end wheels, with four wheels pave- center east of the line marks nowhere crossed these went over, but off truck did not turn ment. Defendant’s the col- place of 267 feet from the the railroad track stopped right headlight bent and the right were front fender lision. Its damaged. side of the radiator night from had come driver testified he Defendant’s gasoline which gallons
Ottawa, Kansas, Kirksville with with his back about had been unloaded there m., a. 35 miles plaintiff’s ear at about .empty. that he followed tank He said He noticed two, attempted pass it. and then per hour for mile seemed to affect coming gushes”; and said: “It that “the wind my driving black line would across the I noticed other ears swerve ’’ gushes wind. He also forward, guess I from the and' backwards pavement once “would across the swerve gushes of wind.” He I am from causes of sure my straightened truck “pulled horn twice over and that he blew his further attempt pass.” testified: out and He made “All..at my right wheel. right him into over once the wind seemed swerve my practically parallel car were front wheel of . . The . tangled up got . "We . . rear wheel of truck. ... I went on pavement. off on the swerved us side track., Railroad onto the Wabash the ditches and over across They they jost- ... In just about time come off. loose come accelerator.” said that his ling I must hit the around He line time of collision. center at the east of the black Kirks- reports from weather both at had evidence Defendant also blowing time; gusty wind there was ville and Columbia that velocity, is, it would largely “that varies as one described thirty twenty jumps up relatively light this moment then wind be miles, reports showed you back —oscilates.” These know, and then varying 17 to from :35 m. and 8:35 A. velocity between 6 wind m., A. per hour. 26 miles *6 -erroneously
Defendant that instruction No. sub contends “gave roving mitted and the commission.” generally Plaintiff submit that his instruction No. “did not claims negligence,” says that, so, question the if “the defendant’s but pleaded evidence, character of the occurrence and in is so unusual happenings plaintiff and common is entitled outside and usual that ’’ application loquitur ipsa the doctrine. the res We not think Plaintiff ipsa do the doctrine involved. did res rely specific negligence. on attempting intend to it but submit was Therefore, Trimble, such cases as State ex rel. v. Brancato (2d) 4, right rely 18 S. W. denying and other cases the on ipsa (cited defendant), res in certain automobile collision eases in point. only general negligence are not claim Defendant’s was solely following part submitted is based on the instruction No. 1 brief, set out to-wit: find and “And further believe day from the place upon -evidencethat on and at and said said time highway said mentioned, carelessly hereinbefore the defendant and negligently caused, permitted truck, and transport allowed if said you find, into, so run and into with the- rear strike collision end you pickup said plaintiff driving, the truck was if find 'from the so, evidence it did further and find and from the believe evidence proximate direct and plaintiff injured.” result thereof was However, this was not whole factual submitted. the situation instruction, high-
This after hypothesizing certain facts about the way, continued as follows: day
“And further find the from said second evidence that on May, 1940, eight plaintiff between seven and o’clock the said" m., a. driving southerly pickup was said truck on said/ Federal direction Highway No. 63 pavement and on west and hand side highway thereof, you find, on if at said and west of center so line Missouri, a point highway Axtel, County, on said north of Macon' was, if evidence, mentioned in further find and believe May 2, from at that on said said time and evidence you place, driving operating a find, if so defendant was vehicle, to-wit, transport motor motor oil mentioned in the -evi- dence, southwardly Highway said Federal No. 63 behind on pickup you find, plaintiff driving, the said truck if so and further day find and believe from and at time the evidence that on said mentioned, defendant hereinbefore carelessly negligently caused, allowed and said trans- permitted port truck, you find, into,- if run into so collision strike you the rear if pickup driving, the said so, find from the did find and believe from evidence that it and further proximate evidence that thereof direct and result injured, your plaintiff, pro- verdict will be then you vided further time find believe from evidence Jones, you find, Burley prior collision, plaintiff, if so exercising highest degree operating of care ’’ pickup truck hereinbefore the said mentioned. contributory neg-
Moreover, defendant submitted instructions on six ligence court) it, if “at (given which authorized a verdict for *7 Burley Jones, negligently question plaintiff, the time and right hand of keep failed to said automobile to the said as close side if highway practicable”; negligently operated as drove and “Jones of hand line upon said automobile the left side of the center east or highway”; negligently if turned portion paved the of said “Jones line left of the center upon said automobile the east or hand side negligently if failed portion highway”; of paved the of said “Jones right in reasonably possible far to the turn said automobile as as passage order allow on the left of said automobile defend- free negligently permitted truck”; motor if allowed and ant’s “Jones paved swerve, portion center line of the said automobile to across the hand the center highway, upon of the east or left side of said negligently paved highway”; of if portion line or “Jones of the line across center permitted trayel allowed said automobile or left paved portion highway, upon of said east highway.” portion of of said paved hand of line side the.center says (1) to show plaintiff’s evidence tends Defendant a look part keep truck to of driver failure on of signaling when he overtook out; (2) failure to “sound his device” 8385(e), plaintiff’s pass in violation of Section truck and desired to (3) speed; (4) pass on the left 1939; R. excessive failure to S. 1939; R. 8385(e), plaintiff’s truck in violation of Section truck; (5) divert the course of speed, failure to slacken or its swerve Except for one of these. plaintiff should submitted are certainly appear per se), not these speed (which did excessive -at circum all no doubt least matters of omission. While there these, any the submission of to authorize stantial evidence sufficient submitting an act plaintiff from instead preclude not this should It commission, by the evidence. seems clear warranted also do. plaintiff attempting to this is what recovery only if the authorized his instruction Plaintiff’s “driving transport jury operating” its found that defendant was truck,” plaintiff was (plaintiff’s) pickup “behind truck south right the pavement” hand side of “on the west and it south “negligently line,” and that defendant the center and “west into, transport rim caused, permitted” “to allowed and pickup truck” rear and into collision strike parties place.” (It was conceded both plaintiff “at time and by de any change Then speed.) proceeded without plaintiff required against plaintiff, instructions, a fendant’s verdict “to car “turned,” permitted only if “drove” swerve,” line; or “to travel” across the but failed center also if he keep “as prac- close to hand side as ’’ “ ’’ reasonably ticable or possible right. failed to turn it far as as recovery Therefore, got denied even if he close to too line, actually getting any it; center part of his ear over only and he could recover if defendant run into caused his truck to rear end of completely from behind when it was beyond west of and the center line. recovery authorizing negligence
Instructions hypothesize should the essential which would facts constitute under the evi- dence. purpose The of this is to inform what the essential are, they controverted facts so that will make a decision as to the facts, they actual existed, which let believe such as to decision the facts determine result to be reached in their verdict. submitting matter of reasonably facts ad- instructions must ministered. are damage “There some acts result that are so simple ordinary out of the course that to of events merely state ultimate specific is about facts averment *8 be language.” can framed into Co., v. Grocer 216 Arkansas [Monan Mo. App. 289, 486, S. W. where in language an instruction the petition the good was held in a collision Here fact, the ultimate case.] “negligently caused” transport the run “to into the ’’ rear end' of the pickup truck, way is no doubt stated in would be too if it requirements stood alone. when But the are added that it be must further found transport that the truck was being driven behind-plaintiff’s car, and that car was his “west of the center struck, line” when then rather áimple narrow and issue presented. was was: Did This defendant’s driver run its truck into the rear plaintiff’s car plaintiff’s being car was properly driven in part the of the where it should been and was have entitled to be? This meant: carelessly Did defendant’s driver so guide its truck against that he drove it plaintiff’s ear, the rear end of in attempting to around it Surely drive as he said he intended do ? to jury issue the could understand well as as excessive speed any or suggested matters omission as submissible (Quaere: defendant. Which specific? is more hit —Defendant plaintiff on failed, the nose—-or—Defendant neglected refused and to keep his in pockets hands prevent and to coming them from plaintiff’s nose.) contact with case, very An earlier principle, similar in is Beier v. St. Louis Company, Transit S. W. plaintiff’s wagon being along driven west the north side of Gravois com- Avenue pletely off of the tracks, street car when defendant’s street car ran into the rear wagon end of another partly west on the street track, ear forcing against it wagon, throwing him down an vehicles, plain- position the After the hypothesizing
embankment. tiff main continued as follows: ’s instruction servants, or charge of em- “And that a ear defendant wagon wagon against a wagon forced ployees, ran into said and by the westerly direction being along Avenue in driven said Gravois Beier Ernst Beier, wagon with said plaintiff, and the Ernst caused find jury will injured, then be an embankment and thrown down ’’ Ernst Beier. verdict for the matter follows: The court discussed the jury the case to “puts (because “It instruction was error attorneys say, defend- because lines”), learned broad defendant’s speed rapid on the petition predicated ant’s is alone words, the court took ring gong. In other bell the failure jury away took from from speed unlawful negli- nothing predicate left ringing bell, hence, there way. The first gence petition do read plaintiff’s on. But we carelessly and 'negligently, charges paragraph defendant with so great suddenly force unskillfully and with car that it operating said ’ etc., westerly direction, being in a etc., driven wagon, ran then into wagon wagon upsetting forcing against plaintiff’s Road north of Gravois latter over an embankment on the side seriously injured. The fall thereunder caused duty theory that petition further on the counts surrounding and cir- control, keep under under conditions duty, and cumstances, negligently and that omitted defendant of ordi- knew, motorman the exercise it avers that defendant’s nary wagons known, would care the car would bridge. now, law If, apply the come in contact or near the we case, pleadings, of this declared in instruction facts harmony pleadings with the the instruction interpreted, as thus general principles judgment facts in and with the *9 apparent.” law is required finding also as to true the Beier instruction It is that by seen, saw, or due care would have
whether or the motorman not stopped have car. how wagon in to But on the track time the by understanding of the the could it have aided in the issues “and find that driver in have further defendant’s this case to seen, of saw, highest degree care could or the have exercise stopped, speed, slackened or plaintiff’s car ahead in time to have seeing swerved,” as plaintiff’s There no controverted issue etc. is to that he it and fol- car because defendant’s driver admitted saw here -slackening Likewise, question stopping of the lowed it. there is no speed truck in this what caused the of defendant’s case because speed. increase of truck have con- was Its could trouble defendant’s speed plaintiff’s behind car it had for rate of tinued the same or, any collision; speed when chance of even its mile or two by getting increased, safely completely passed was could have first swerving, highway. the the on other side of the center line of As trying plain- around driver claimed that he was drive swerve, true, plaintiff car, and, tiff’s if did not plaintiff’s is evidence carelessly question drive the real was: Did defendant’s driver so making attempt pass against the rear end car in the of alternatively (For submitting an both instruction, it? omission 1- Mis- passing, Raymond, in a commission collision while see case'of Instructions, However, form was 354, p. souri 1218. used this carelessly swerving sideswipe negligence was either collision where the Certainly right or have failure swerve to the left. it would only if proper been there to have submitted act of the commission occurred.) applicable here, The Beier is the evidence showed it case fully complete and the factual situation was submitted even more specifically here than in that case. Railways City Company, 258, 231 Richardson v. Kansas presents W. a similar was a rear col situation. It also lision of street car with truck ahead of it. This court discussed matter as follows: the (of petition) specification appellant’s employees the
"One operate ‘failed neglected to run and said car in a manner that said car would be such control that it would into under not run they saw, by against automobile when exercise of the seen, could truck ahead reasonable care have of said automobile ’ tending support car on There evidence said track street. negligence allegation. specification pleaded It is a of required jury, finding for re the before as such. instruction in an (1) find: That she was automobile spondent, to seated (3) standing control and still (2) over which had no she car, (4) respondent the track ahead upon appellant’s danger stop did and continued being if ear was in struck negligently operated, car course; (5) that said was so street negligently by motorman that it was managed, or controlled truck; (6) motorman into and that the caused be run strike against when he or in the exer negligently ran the truck saw truck on the track ahead of ordinary care could seen the cise ordinary stopped care car, could have the exercise striking truck. It true that in have avoided car and allegation general pleadings; structions must be within negligence; negligence particular specifications is restricted instructions, case, nothing outside in such a must submit only specific charges. (Or generally petition, if stated here, specifically proved.) In this must be what was submission among specifications which follow the case *10 already charge allegation spe in itself quoted. That this is by charge cific, negligence, a shown and not mere of is 102 by Co., v. 211 Mo. c. respondent. Davidson Transit l.
decisions cited Co., 232, 233, l. 94 361, 583; 109 W. Beier v. Transit 197 Mo. c. S. Livery seq., 876; Thompson Co., 493, v. Mo. l. c. et S. W. S. W. fairly jury by allegation submitted to the as 1128. This ’ ’ sailed instruction. in the Davidson case: court of similar statement This wanting specification? in It that declaration respect “In what is position and the environments situation, plaintiff’s describes the against her says vio- the defendant drove horses and then and that trampling her, it was lently, knocking down and her driving What act negligence in the horses. other due to the driver’s rapid gait Driving a of horses at into a team specify? could she standing plain driver, in are view space people narrow where negligence acts and the statement of such of prima-facie is evidence charge negligence specification of of acts of with a is a accompanied ' negligence.” . Railways City Company ex Kansas Another similar State rel. case is Sup.), 746, on a rear (Mo. v. Trimble 260 S. W. where verdict’based by language affirmed end collision instruction similar City on certiorari Appeals of and this court refused Kansas Court ruling. principle well quash the There is another settled con also If an in cerning applicable which here. That is: instructions is which if could requires jury find facts true struction guilty negligencé only per mean that the of se or as defendant was law, good require if it matter then instruction is even does negligence, “the jury find that such facts constitute because only cases”; words, other law conclusion such draws the facts) proximate jury (if finds such remaining question for the (2d) 1045, W. Anders, 963, 163 S. de cause. Mo. v. [Swain 15, 5; May Raymond Sec. 1942, citing cided Term — Instructions (2d) 172, Oglesby 1 W. Co., 79, v. St. L.-S. F. R. 318 Mo. S. 514, 17 cited, 179; City Lamar, 322 Mo. Thompson cases l. c. v. (2d) 971; W. v. St. 960, S. cited l. c. also Christiansen cases see 408, (2d) 828; Borgstede Co., Public 333 Mo. 62 S. W. Louis Service Waldbauer, 1205, (2d) 373, (12) 378; c. Mrazek v. 337 Mo. 88 W. l. Assn., (2d) v. Terminal R. 111 S. W. Instruction 26.] in a require finding plaintiff’s position No. did here, be, properly required he operating had highest degree care, together with his environment and other negligent, of the' could not have been facts situation showed he finding required and then of the affirmative the defendant act against part its truck into that Surely hypothesized rear car. all these facts would end of conclusively negligence part show active on defendant’s as matter law, finding that if the believed them no than a so result other in We, therefore, hold that could be reached.
103 sufficiently specific negligence, shown sub struction did submit subject giving jury evidence, to the criticism of stantial and is not roving a commission. damages 2No. the measure
Plaintiff’s instruction was on of they for “that jury that if found in its conclusion told may him you the sum the total which award shall exceed amount $25,000, petition.” which in the This con of amount sued for is a cluding challenged improper. Such part No. is of instruction in an held reversible statement instruction has not been to constitute Ry. error, Francisco but has been criticized. Bond v. St. Louis-San Co., 785; 315 Mo. S. W. l. c. Brashear v. Missouri Power 987, 288 639, l. Light (2d) 644. Co., App. & S. W. c. case,
In the Bond did not even the instruction' state for, it the amount amount sued this court said: stated damages “An instruction of which fixes maximum on the measure a may any jury allow, disclosing why amount which reason particular figure has maximum at named, the court fixed the car- jury ries to the minds a clear implication of that the court is of the opinion that the evidence an up warrants assessment to the amount specified. day this court will doubt Some no hold that the giving of an if instruction, verdict, such followed is excessive error.” reversible
In the jury Bond a ease did return verdict for the full amount stated in very instruction and this court found the verdict ex- cessive, considerably it a since ordered remittitur than half of more verdict. jury given Here the specified reason for the amount, namely, that for; they it was the amount sued did not a verdict for such amount or even half it. real return Defendant’s claim that the stating is verdict is and that the amount excessive sued for helped in However, the instruction to make so. do it not find we the verdict excessive ease. The this be told the sure to amount stage trial, sued and, stating some in an suing wholly might instruction even for a unreasonable amount be prejudicial, in. circumstances, some we hold that was not reversible error here.
According plaintiff’s evidence, he compression suffered frac tures of the first lumbar eighth vertebra, vertebra and of the dorsal tearing and a supporting spinal ligaments. He had a also rib which punctured lung, causing fracture pleurisy threatening one traumatic pneumonia. condition, plaintiff Because could not put be in a east spinal injuries May. for his until last This east was not removed until October. Plaintiff continued fingers his arm and pain leg, numbness also his doctors said was due to involvement in the injuries. nerve vertebrae There of a permanent injury evidence to the intervertebral discs permanent deformity vertebrae of spine. Plain- his work to resume years had been unable age
tiff bill was labor. His doctors’ any manual carpenter do X-rays a belt or brace more $499.00, doctor said that and his fairly good had made While required. probably would might testimony he to show that medical recovery, defendant had evidence show he had substantial permanently incapacitated, not be they will and that very painful, injuries were serious that his Donley In v. movement. in limitation *12 permanent effect judgment for affirmed (2d)W. we (Mo. Sup.), 98 S. Hamm lamina of vertebra. fracture of the injury was the $8000.00 injuries. back other eases of vertebrae reviewed therein We also case cases, hold that the verdict authority we of these On the not excessive. Bradley Dalton, GC., judgment affirmed. is concur. PER, by Hyde, C., adopted as foregoing opinion CURIAM:—The judges concur. All opinion the court. 37958. A. Smith. No. Smith, Appellant, v. Laurence Mabel G. (2d) 921. 164 W. One, September 8, 1942.
Division Denied, Rehearing 1942. October appellant. Joseph J. Howard Isaac C. Orr and