*1 1109 Rehearing. On for Motions having
HYDE, rehearing par- C. Motions for been filed both ties, carefully We satis- we have reconsidered entire record. are principles opinion stated in the herein are correct fied However, respondent indi- be both motions should overruled. litigation ap- without another cates a desire to have the terminated right willingness conse- praisement аnd states its to waive quential damages Although uphold we cannot accomplish this. damages stated in the for the reasons the whole amount of assessed to have been assessed we think that the amount shown opinion, im- damages only property taken and for the the commissioners evi- thereon, $7853.34, proper held under the provements could be willing be, therefore, is may respondent It dence in this case. award and the total between that amount to remit difference right so, and would $11,438.34. so, it to do If should $7853.34, which would be consider- affirm proper to the award of Respond- by the first award. ably respondent more than was allowed entitled to rights leaseholders, all is acquired ent, having parties. interested judgment аnd there no other all the are days will within ten is, therefore, respondent It ordered $3585, judg- judgment, a enter, remittitur of the date remanded, Otherwise, it will be reversed and will be affirmed. ment directions, ordered. with as heretofore by Hyde, C., foregoing opinion on motions
PER CURIAM: The All the rehearing court. hereby adopted opinion judges concur. Dairy Meyer Ap- Corporation, v.
Elizabeth pellant. (2d) S. W. 696. One, October 1933. Division *2 Gragg appellant. Wilbur G. Schwartz and J. Edivard for
111.1. Aschemeyer Bagleton, P. & Henwood and Franlt Waechter respondent.
FERGUSON, wrong damages by C. Action tbe a widow under ful (Secs. death 1929) statutes ac and" R. S. count of the death alleged of her husband to have been negligent O’Malley, acts of husband, defendants. Plaintiff’s Matthew pedestrian crossing while city St. Louis Grand Boulevard in the plant near the Pevely Dairy Company, defendant was struck killed an being automоbile owned and driven defendant Wil liam J. Doran. petition against charges negligence Dairy Company (1) carelessly “negligently, said defendant unlawfully leading drove” wagons driveway, one of its from from premises, legally Boulevard, into Grand “which was a designated there, bringing boulevard the aforesaid vehicle to a full complete boulevard, stop entering crossing or said in violation city Louis, of” an St. ordinance of the referred by number, paragraph, section and which provides substance every brought vehicle shall be complete stop to a full and entering crossing fore lawfully designated as a boule vard” (2) Pevely Dairy “defendant said Boulevard, into said Grand the same before failed to boulevard, said said and did continue to drive the same into proximity such close to the automobile of defendant Doran as to him cause to swerve said automobile in such manner as injure charges to strike and kill husband.” ‘Other against made were abandoned. jury against plaintiff found for defendant Doran and for Pevely Dairy Company assessing damages in the amount $10,000; judgment entered therеon it the *4 company appeals.
The unfortunate O’Malley’s event which resulted in death oc- two-thirty about curred November 1927. The situation m., a. preliminary may briefly O’Malley facts employed sketched. by the dairy defendant company as a driver of one of its horse- delivery wagons drawn assigned regular to a certain route city the of St. dairy Louis. company plant, The which out of O’Malley worked, was located at the corner of the inter- southwest section Choteau Avenue, street, an cast and west and G^and - Boulevard, a north street, property extending south some along distance south adjacent the west side of Grand to Boule- vard. driveway upon maintained a and at the south premises side of yard loading which led out from its docks and extended to and connected with side of Grand the west Boulevard.- Tt daily, large seems that hour,, at about this number delivery wagons were loading dispatched loaded at the docks and to respective their the'wagons routes. As loaded and dispatched were they left driveway, defendant company’s premises into over this Grand wagon, having Boulevard. O’Mаlley’s On been morning this standing premises he, on defendant’s while with left loaded, was something “getting to eat and some intention announced starting route, his walked across on Grand Boule- before cigarettes” east side of that street. He was return- on restaurant to a vard restaurant, crossing Grand to the company plant ing street when he was struck the Doran of that wеst side on a statement now to of the evidence most We come automobile. tending support and sustain theory to and
favorable O’Malley’s injury and cause of and death. manner Doran to the south on Grand traveling Boulevard his automoile speed that street at a of from right twenty the center As the automobile twenty-five point an hour. neared the milеs where driveway connected with and company’s entered Grand of that street one of company’s the west side de- on Boulevard horse, making livery wagons drawn at the en- driveway signal into the boulevard and without of the trance being given, driveway came out of warning and continued the east and center of the straight directly toward street and aheаd front, of the south bound automobile. Doran path, in the driveway of the came out “on run.” the horse To avoid testified wagon with the horse Doran impending collision swerved “just east) (the wagon” missed the horse and the left something like that.” This swerve a foot or turned the “possibly slightly to the east east or left of the to the center automobile was there and then that it struck O’Malley street and who crossing east from the side of act of the street in the to the the west side. front left side of company plant on the automobile O.’Malley that “the I O’Malley. Doran stated first saw of Mr. struck “I O’Malley of me” and saw Mr. just up front about popped he Reiper, charge driver I him.” defendant’s hit of this time loading had been loaded at that his dock wagon, testified driveway intersection of the Grand west of the with fifty feet about Boulevard; wagon” wag- piece “had a of ice on the and as the he he moved the with his neared the intersection ice foot and say run.” The driver “got and started to does not scared horse any time out of control or that he tried to check was at the horse his attеntion to the ice and rather seems to made but horse proceeding into the boulevard stop the horse or to no effort permit- street or to turn south thereon but cheek it driveway past the intersection of the with continue ted the horse to *5 near street; east and to the center of the toward Reiper’s that, trying statement “I indicating refer to we was this (the horse) going and he my foot started fast ice with hold the horse) driveway” (the came out of the .as he me . on involved.! could have turned the horse no ice “if had been going center over to the of the street.” immediately the south entering that he did make a Reiper further stated not before driveway from the when the boulevard and that he first saw wagоn; twenty it was within fifteen Doran automobile or feet of the my “I Doran swerved the automobile the left horse that as drew swung right” back him over to the missed the the automobile a It was admitted that horse “about foot.” Grand Boulevard boulevard, legally designated public street, point a and at this was a city St. Louis. Plaintiff in introduced evidence-an ordi- city which requires “evеry St. vehicle nance of the Louis that brought complete stop a full and shall be or cross- lawfully designated ing as a Defendant’s boulevard.” wagons evidence was to the effect that none of its drove out of the driveway immediately prior thereto; Reiper’s at the time or standing yard some distance back in the at the time O’Malley yet yard; was struck and hаd not started to leave wagon drove in car no front of the Doran but that Doran’s auto- traveling forty-five speed forty a mobile miles an struck hour ’Malley crossing nothing O as he was the street and intervened change cause it to its course. The street to was, conflict the evidence course, jury. resolved verdict of the marriage children plaintiff Four minor born of the between 4, O’Malley O’Malley As stated survived. killed November 1927, 14, filed, naming 1927. On this petition November suit was day September, William J. alone as defendant. On 27th Doran 1928, being husband, six months after the her more than death of year thereafter, plaintiff petition within filed an but one amended Pevely Dairy making Company a defendant with said Doran trial, upon petition, against prоceeded the cause both September, 1929, result as In defendants with the above noted. Meyer appears William hence her name herein plaintiff married now Meyer. as Elizabeth assignment
Appellant’s first error that the trial court its instruction the nature of a demurrer to the should argument support this con principal advanced evidence. brought by оriginally suit was the widow is that while the tention against months Doran within six after her husband’s death defendant petition whereby appellant amended com appears that party was not filed “within six. joined as pany was bring did death” and therefore the widow not after such months period within months’ against appellant the six a suit having cannot maintain the action as failed sо to do action, any, against having appellant cause of appellant, months, lapse six the minor children of vested, after 3264, statutes, Sections Revised Stat Our deceased. suit, this, such as for the death “of provide utes act, neglect wrongful or default of another” person
1115 (Sec. 3263) brought: “First, by may be or wife of the husband deceased; second, or, wifе, be husband or or he or there no death, by she fails to sue within six after such the minor months then (Secs. 3264, . 3262 child or children of the deceased . 3266, 1929, requires supra), and Section Revised Statutes that such year ... “action be commenced within one after the cause period year of shall accrue.” For a of the cause of action one after brought against persons accrued an action could be all whose action negligent wrongful cause, acts or contributed to the death or Regardless, however, wrong of husband. of number of “one, single, action,” was but indivisible cause “a doers there right guilty parties.” single, indivisible to all the sue [Packard Joseph & 80 v. Hannibal St. Railroad 181 S. W. Mo. provides The statute for but onе cause of action and the widow 951.] is preferential granted right to sue “conditioned that ” (Huss Bohrer, within six months 317 she ‘sue after v. such.death’ 95), 295 Mo. S. W. therefore she had six “within which months appropriate action, to the cause of the election to be made to elect suit.” v. 76 Slavens, institution of a Mo. [McNamara 329.] election, preferential right such and exerсised her When she made by instituting against alleged wrongdoers, the suit one of the sue thereby six the death Doran, within months after of her husband she single, indivisible, fully cause became appropriated and the of action thereupon she in her thereafter had “absolute vested so (Huss Slavens, Bohrer, v. the action v. McNamara control” oh Railroad, supra), right, election, charge at her v. Packard alleged wrongdoers any parties as join other defendants period year prescribed petition within of one filing an amended “Having appropriated right, the action. she as limitation of right it. Her action all whose had absolute control Having plenary the death her husband. control negligence caused liberty action, jointly, many sue them all or as she was Railroad, supra.] fit.” saw she [Packard v. supporting we have made the evidence The statement O’Malley how was struck and killed plaintiff’s version sufficies, think, accompanying comment we with our Doran automobile assertion that the “did not show dispose appellant’s evidence Dairy guilty negligence” Company upon ground its demurrer to petition alleged in the It seems to have been conceded been sustained. should have evidence ‘‘every brought ... requiring vehicle ordinance that the entering crossing any before complete stop full to a ’ ’ (cid:127) designated applied situation lawfully being legally designated boulevard, existing, Grand Boulevard there by appellant’s employee, ordinance shown violation of fore evidence, into Grand Boulevard by plaintiff’s bringing same to a that street permitting to continue across toward the center of (Borack the street per Co., se v. Hosier Safe Mo. *7 623), 231 83, S. W. and since there was substantial evidence on the part tending plaintiff of to show that such violation thе of ordinance O’Malley’s proximately contributed to cause death the demurrer to properly the evidence overruled. remaining
Appellant’s assignment plain of error relates to 1, given court, tiff’s the Instruction as follows: jury you “The Court instructs the that if find and believe from question the evidence that on the occasion in defendant, the Dairy through Company, wagon its driver did drive the and horse in driveway mentioned the evidence out its said upon and into and therein, Grand Boulevard mentioned and that said driver on said stop boulevard, to said thereafter, occasion did fail and did if find, do so continue to drive said horse and you wagon, without and stopping, proximity into across said boulevard and into close Doran, оf the defendant driving to the automobile and in thus that wagon you said circumstances, find, said horse and under if so the guilty said then driver was and negligence, plain- and that injured neg- tiff’s husband killed a and direct of said result ligence driver, part you on said if evidence, the so find the plaintiff the is defendant, Pevely then entitled to recover the Dairy may though you and this true even is find and defеndant, believe from evidence that the Doran, guilty the was 'also negligence which contributed to plaintiff’s cause the death of the deceased husband.” dairy company’s
Defendant fully instructions covered its theory jury finding of the case. Its Instruction 5 the told that the jury wagon be found way should for it the that the “was in no in “standing yard” involved the accident” was at in but the time the appellant’s part; as was the evidence on its Instructions jury negligently if Doran told the that drove his automobile “high, speed a excessive and rate cir- unreasonable under the signal . cumstances;” timely failed “sound . to and turn highest his said automobile when the or swerve exercise the degree of could have done so” or that he care he “failed tо exercise degree highest speed slacken of care to automobile” his part “directly that acts or omissions on the of Doran said plaintiff’s husband, caused the collision” with the verdict should you “provided company, find for defendant further that the wagon Pevely Dairy Company negligent of the driver of not ’ ’ driving wagon. manner in said in his plaintiff’s Appellant’s criticism of Instruction is sole that it require finding jury specific but not “that should does in Pevely Dairy Company driving alleged negligence of the defendant 11.17 swerve defendant Doran to its street caused the wagon out into the plaintiff’s hus- in and kill his manner as to strike' automobile such gist charged against com- negligence band.” of the against that pany and made basis of action without, bringing is wаgon into Grand Boulevard stop continuing, to entering upon, that street and to a proximity drive same across close said approaching con- alleged, and it further automobile nection, consequence result of such part was caused dairy company of defendant defendant Doran injure his “in manner as to swerve automobile such strike рart kill plaintiff’s of the husband.” evidence offered on plaintiff tending liability dairy company was con- to show wagon negligently solely theory driver of its fined negligently failed make a for the drove boulevard manner out onto and across such *8 his necessary avoid for Doran to swerve a collision therewith it was tending the evidence to show that automobile to left. There was no dairy way to company in manner or acts of the contributed other jury injury. required advised the cause the The instruction and finding must assume that to make their “from the evidence” and we clairy in making finding arriving the the their and verdict instruction, the jury, as instruction company the under this found evidence, wagon “to required the of failed from that the driver the ... said and . continue boulevard did thereafter wagon, stopping, and across said said horse and into drive proximity of de- to the automobile the into close wagon said under Doran, that in thus horse and fendant guilty . . driver was and there the then circumstances said injured plaintiff’s killed husband was negligence” “that negligence;” is, com- dairy that the result said a cl/irect operating driving its in manner al- in pany’s acts predicated leged plaintiff’s evidence and petition, shown necessary instruction, it for Doran to swerve his auto- made in the contributed, shows, thereby directly evidence mobile O’Malley’s properly injury and death. The instruction re- to cause first, quires guilty jury find, company second,' injury and, negligence charged, proxi- sustained negligencе mately resulted such evidence from the jury way but. in which the could find that such one. injury being find that on account thereof Doran automobile, his in the. in which swerve manner he did. caused to wagon. might with the instruction avoid collision well order to light specific made but. more nlaintiff’s evidence been have predicated, is the instructions on behalf of de- which fully submitting favorably theory most fendant whole, fairly as a we think the issues were and clear- and the evidence ly plaintiff’s Instruction cannot be said submitted and that likely, any way, jury prejudicial ap-' have been misled the pellant. judgment circuit is
Finding no reversible error court Stu-rgis Hyde, GO., concur. affirmed. C., foregoing by Ferguson, adopt-
PER opinion CURIAM: The judges opinion court. All the concur. ed City Louis, Mu Relation of at the of St. State Missouri Clyde Relator, Judge C. Corporation, v. nicipal Beck, 14. 63 S. Louis, No. City Division Court of of St. Circuit (2d)W. 814. Banc, 1933. en October
Court