MERL L. KNOBLOCK, Appellee, v. THOMAS H. MORRIS and ARMOUR & COMPANY, Appellants.
No. 37,799
Supreme Court of Kansas
Opinion filed July 8, 1950.
220 P. 2d 171
Even though the defendant corporаtion delivered no bill of sale to intervernor the equitable title, as between those parties, vested in intervenor. Under such circumstances appellant, as an attaching creditor, could not oppose the equitable title which was valid against his debtor. (Bank v. Williams, supra, a decision under the
We think the judgment must be affirmed. The original оpinion is adhered to.
Allen Meyers, of Topeka, argued the cause, and P. W. Crocker and S. M. Terbovich, of Kansas City, and Lowell R. Johnson and Harold T. Van Dyke, of Kansas City, Mo., were with him on the briefs for the appellants.
David W. Carson, of Kansas City, argued the cause, and Ernest N. Yarnevich, of Kansas City, was with him on the briefs for the appellee.
The opinion of the court was delivered by
PRICE, J.: This appeal arises out of an action to recover for per
In February, 1948, the plaintiff, a resident of Nickerson, was a patient in a clinic in Kansas City, Mo., undergoing an operatiоn and treatment for a prostate condition. On the morning of February 23, 1948, he, accompanied by his wife and small child, started out in his Buick automobile to visit a relative living west of Kansas City, Kan. The day was clear and the pavement dry. He was driving in the westbound traffic lane on U. S. Highway 40, which at the location in question is а four-lane highway with a medial strip of grass between the eastbound and westbound lanes.
Also on that morning the defendant, Morris, an employee of defendant Armour & Company, started out from Kansas City to Bonner Springs on his employer‘s business. He proceeded west on U. S. Highway 40 until reaching the intersection of said highway with State Highway 107, at which point he turned off to the south. After driving south on State Highway 107 for a short distance he realized that he was on the wrong road to Bonner Springs and turned around and proceeded back toward U. S. Highway 40. The intersection of these two highways is level but there is a decline or downgrade on State Highway 107 toward the south from the intersection. There is a slight downgrade east from the intersection on U. S. Highway 40. There is a stop sign on the east side of State Highway 107 about two car lengths south of the paved portion of U. S. Highway 40.
The undisputed evidence is that defendant Morris, hereinafter referred to as the defendant, did not stop before coming onto U. S. Highway 40 and ran into plaintiff‘s car in the intersection as plaintiff was driving west in the westbound traffic lanes. Plaintiff received personal injuries and his car was badly damaged—hence this lawsuit.
Plaintiff‘s suit, as originally brought, sought actual damages in the sum of $8,227 and punitive damages in the amount of $1,000. Later, by leave of court, he amended his petition by alleging permanent disability and raising the prayer for actual damages to $30,227. The cause was tried before a jury which answered special questions and returned a general verdict for plaintiff in the sum of $12,707. Defendant‘s motions to sеt aside the answers to certain special questions, for judgment notwithstanding the verdict, and for a new trial, were overruled and they have appealed.
At the outset it should be stated that the defendant concedes his negligence and there is no question concerning whether defendant was engaged in his employer‘s business at the time of the collision. Furthermore, it is conceded plaintiff was not guilty of contributory negligence so as to bar his recovery, and the only questions briefed and argued on appeal pertain to the propriety of several instructions given, the alleged excessiveness of the verdict, and thе matter of punitive damages.
Concerning the facts of the collision, the evidence is as follows:
The plaintiff testified that as he was driving west in the north lane of U. S. Highway 40 when he came to the intersection of State Highway 107 he “first heard the roar of a motor at high speed“; that he then turned his head to the left “and seen a car streak like a shot out of a gun“; that it hit his car on the left rear wheel, spinning it around and turning it over, throwing plaintiff and his wife and child out on the pavement.
Defendant‘s version of the collision was that after he discovered he was mistakenly on State Highway 107 he turned around and drove back to U. S. Highway 40; that as he approached the intersection he was traveling between thirty and thirty-five miles per hour; that as he came up to the stop sign he applied his brakes, which caused his car to skid on some loose gravel; that he then took his foot off the brake pedal so as to stop the skidding; that he then jammed his foot back on the brake pedal to stop, but in so doing his foot slipped off the brake pedal and hit the accelerator, with the result that his car shot forward into the intersection and onto the highway. He testified that he saw plaintiff‘s car coming from the east. According to him plaintiff‘s car was not turned over and its occupants were not thrown out on the pavement.
Plaintiff sustained a cut on one knee and on his forehead, the latter as a result of his glasses being broken. These wounds were bathed at a near-by store on the highway and plaintiff was then taken to a hоspital where the cuts were further treated, following which he was immediately released. Defendant then drove plaintiff to the clinic where the latter had been undergoing prostate treatment. Apparently he suffered no immediately noticeable in
Plaintiff was an oil well rig-builder and contractor, and had worked in the oil fields for a number of years. His work was of the heavy type and required much lifting of heavy objects and materials. The evidence showed that while so engaged he earned over twenty dollars per day. His Buick automobile, which was badly damaged in the collision, was equipped with a lifting attachment for use in his work. There was testimony to the effect that one in his occupation was allowed eight dollars per day for the use of his сar. He testified that following the collision he suffered headaches, pains in his back and limbs and was unable to carry on his usual line of work in the manner which he had previously done, although the evidence also showed that he was by no means an invalid and that he was still capable of engaging in oil field wоrk to a limited extent. About two months after the collision he returned to Kansas City for a medical examination at the request of his attorney. X-rays of his back were taken at that time. Shortly before the case went to trial in February, 1949, he was examined by several doctors and X-rays of his back were again taken. Considerable medical testimony was given at the trial and in brief it can be stated that the substance of it was that for a number of years plaintiff had been suffering with osteoarthritis—that is, inflammation of the bones—and that possibly this condition had been brought on by his prostate trouble. There was testimony to the еffect that his arthritic condition had not necessarily been accelerated, so far as the later X-rays showed, during the year following his injuries. On the other hand, there was ample medical testimony to the effect that trauma—that is, a blow such as he received—could aggravate the conditiоn of his spine to the point where he would be permanently disabled so far as the performance of heavy manual labor was concerned. Plaintiff was about fifty-eight years of age.
There was considerable testimony by co-workers and associates of plaintiff to the effect that following his injuries plaintiff complained of soreness and lameness in his back and that he was unable to do the work he formerly had done.
The jury answered special questions as follows:
“1. If you find from the evidence that plaintiff, Merl L. Knoblock, has disability to his back, do you attribute that disability to arthritis?
“Answer: No.
“Answer: No.
“3. Was plaintiff‘s arthritis of long standing and in existence prior to the collision?
“Answer: Yes.
“4. Do you find and believe from the evidence that the plaintiff was negligent which directly contributed to cause the collision complained of?
“Answer: No.
“5. If you answer Question No. 4 ‘Yes,’ state the particular or particulars of such negligence?
“Answer: ——.
“6. If you find from the evidence that plaintiff, Merl L. Knoblock, had arthritis of the back, was that arthritic condition heightened and made more painful as a result of the collision?
“Answer: Yes.
“7. Do you find from the evidence that Merl L. Knoblock does have a permanent disability of the back?
“Answer: Yes.
“8. If you answer the next preceding question ‘Yes,’ state whether plaintiff‘s present disability of the back was caused or accelerated by shock or injury resulting from the collision?
“Answer: Yes.
“9. If you find that defendants are responsible for damage to plaintiff‘s car, what do you assess that damage to be?
“Answer: $1,250.00.
“10. If you find in fаvor of the plaintiff, state whether or not you allow plaintiff exemplary damages.
“Answer: Yes.
“11. If you answer Question No. 10 ‘yes’ state the amount of exemplary damages which you allow the plaintiff.
“Answer: $1,000.00.”
Defendants first complain of the form of several instructions given, their complaint being that the court erred in “summarizing” the allegations of plaintiff‘s petition with reference to items of damage claimed by him when there was no evidence to support such alleged damages. No good purpose would be served by setting out these instructions. We have examined them and find the complaint to be without substantial merit.
Wе pass now to the question of punitive damages. Plaintiff sought punitive damages in the amount of $1,000, and the jury allowed him that amount. Defendants contend the evidence in this case did not justify the court in submitting the question of punitive damages to the jury, and, furthermore, even though the case were properly one fоr the submission of such question the court erred in its instruction
“... And if you find from the preponderance of the evidence that the driver of the car of the defendant Armour & Company, Thomas H. Morris, was guilty of willful and wanton negligence, and disregard of the lives or safety of others on said highway; and thereby caused said collision; you may find for the plaintiff an additional sum, not exceeding $1,000.00, as a suitable punishment for such wrongful act on the part of the defendants. However, the total aggregate sum of your verdict cannot exceed $31,227.00.”
We hold that it was proper to submit thе question of punitive damages to the jury and that the quoted portion of the court‘s instruction was sufficient. Defendants argue that the undisputed evidence is that the defendant intended and attempted to stop before entering the intersection, but that in applying his brakes his foot slipped off the brake рedal, hitting the accelerator, which in turn caused his car to dart out into the intersection, and that such fact certainly does not tend to prove any wanton conduct and disregard of the lives or safety of others on the part of defendant. The only trouble with that argument is that the jury was not bound to believe defendant‘s testimony in this respect. Defendant knew the stop sign was there and he knew that U. S. Highway 40 was a so-called high-speed four-lane highway. He approached the intersection at a speed of thirty or thirty-five miles per hour and from the physical fact of his car “shooting” out into the highwаy the jury was justified in finding that from all of the surrounding facts and circumstances his manner of driving showed a wanton disregard of the safety of others properly on the highway.
We come now to the principal ground of appeal, namely, the excessiveness of the verdict. Defendants contend that it is not only еxcessive but is so excessive as to shock the conscience of this court and compel us to hold that it necessarily was the result of passion and prejudice on the part of the jury, which would necessitate the granting of a new trial rather than a remittitur.
We have examined the evidencе in detail—medical as well as lay. A number of competent physicians testified concerning plaintiff‘s past physical condition as disclosed by the X-rays of his back and as to the effect the trauma received by plaintiff could and probably did have on that condition. The mere fact that a person receiving an injury has a predisposition to a certain disease, or in fact had such disease or condition, would not relieve one who was guilty of negligence from liability in damages if it is established that such
An examination of the entire record discloses nothing approaching reversible error and the judgment of the lower court is therefore affirmed.
PRICE, J. (dissenting in part): In my opinion the facts of this case did not justify the submission of the question of punitive damages to the jury. Furthermore, assuming that its submission were proper, the only instruction given by the court (and which is set out in the opinion) was wholly insufficient and inadequate to define wanton conduct and to give the jury a proper understanding of the subject matter. I would set aside the award of punitive damages.
THIELE and WEDELL, JJ., concur in the foregoing partial dissent.