*1 theory Plaintiff’s last is that the defend- to clear Brown plaintiff would be used as prem- ant negligent making err trial court did pigeons. The out ises safe to an of de- as invitee for defendant directing verdict tenant, fendant’s Brown. whatso- Nothing theory. this ever remotely is shown that would even indicate escape that the fire a dan- theory is Plaintiff’s second gerous condition, or acting defective or that there employee defendant an Brown was was anything about it known to defendant scope employment at of his within charge duty him this would with to re- join in plaintiff time invited to he pair however, or make photographs safe. The Brown, undertaking. hazardous evidence nothing ordinary show out of the employed anyone to hire other was not escape. about the fire seventeen-year do the court did his old son to than not err in directing a As verdict to job pigeons the attic. shooing out of theory liability. stated, de authority from Brown had no could not plaintiff fendant to hire he The judgment is affirmed. scope acting within the of his have been employment at the time he did so. 294.- BARRETT STOCKARD, CC., con- 1959, V.A.M.S., prohibiting 040 RSMo cur. employment age under children years age occupa sixteen in enumerated any “occupation danger tions and in other PER CURIAM: life, limb, injurious
ous to the health or or to the health or morals of children under foregoing opinion by PRITCHARD, sixteen,” age inapplicable for the is C., adopted opinion as the of the Court. authority same reason—no young to Brown to hire children. All Judges concur. theory, plaintiff
For his third asks
us to negligent failing consider defendant
to exercise reasonable care for
safety employed when he others to work do
which he recognized likely should have create, during progress, peculiar its physical
unreasonable plain risk of harm Elizabeth Nancy PRENTZLER, next special tiff precautions unless were taken friend, Rollie Frazee, Respondent, safety. for his partially We have con argument that, sidered this under above record, and all legitimate inferences Erma Sue SCHNEIDER, Administratrix arising therefrom, defendant did not have Estate of Jacob K. Schneider, Deceased, Appellant. (or age others size) he go mind when told Brown ahead with No. 52075. job, using seventeen-year old his own Supreme Missouri, Court of son. open The fact that there was a small En Banc. attic, ing to space the crawl therein Dec. 1966. job require was small might and that the (there might was no it or Rehearing Denied Feb.
would) go engaged those out on escape, give the fire does not a basis
foreseeability anticipation that such
person engaged so would be
one like him. *2 Statute),
ly the Dead Man’s referred to as to the action dead. other plaintiff-respondent application On of both defendant-appellant, we ordered It is to case transferred this court. *3 “ * * * as on determined here same V, 10, original appeal.” Article Constitu- § V.A.M.S.; Missouri, Rule tion of Civil (h), 84.05 affirm. V.A.M.R. We 1962, 2, July The collision occurred Fayette Highway Missouri No. 5 between county. and Glasgow in Howard Kenneth driving Prentzler was his Chevrolet wife, truck as a east with his this violently passenger when it collided with an dump International truck driven west by Both were Schneider. drivers Jacob only instantly. killed Mrs. Prentzler is the surviving collision. witness wrong of each filed a The widow driver county: (1) ful death action in Chariton Erma Allen Prentz- Sue Schneider vs. Paul ler, Kenneth Administrator of the estate of deceased; Prentzler, Nancy Lee Eliza (2) Prentzler, by beth her next vs. friend Erma Schneider, Sue Administratrix of the es Schneider, tate A K. deceased. Jacob case; change of venue was taken each the first mentioned case was sent to Saline county; county. Randolph the second to The first case Prentz- Schneider vs. Daniels, Fayette, respondent. W. F. for ler, Administrator, judgment resulted in a $25,000. Defendant, for Mrs. Schneider for Porter, Columbia, Welliver, Terence C. Prentzler, administrator, appealed Cleaveland, Columbia, counsel, Porter & the judgment court. by was affirmed appellant. for Prentzler, Mo., See Schneider v. 391 S.W. 2d 307.
HENLEY, Judge. compulsory rule, counterclaim damages action for wrong- This is an for V.A.M.R., Rule (a), Civil 55.45 ful death of husband aas result applicable plaintiff to this when the two Judg- aof collision.of motor vehicles. two county, cases filed in be were Chariton $15,000 ment and de- cause she was not a defendant and appealed City fendant to the Kansas required plead was not to and could not Appeals. That court and re- reversed Yelton, Hayden the other action. v. Mo. manded permitting for error App., [2,3]; 251-52 State collision, testify facts of the because she Jensen, Mo., ex rel. Buchanan v. 379 S.W. as a witness reason (common- 2d V.A.M.S. days Five separately diametrically op- before the trial of this case de- tried cases are fendant, Schneider, posed issue, filed a motion for sum- on the basic fact an anomalous mary judgment predicament to which was attached in circumstance and defend- support transcript pro- anticipated thereof of all ant sought avoid ceedings county the Saline summary judgment. motion for case. Grounds of the motion were that this action is barred of the ver- reason What defendant refers to as the dict and in the Saline estoppel by judg doctrine verdict Prentzler, Schneider Administrator. aptly ment is Nor stated in Norwood day.
The motion was overruled on wood, 1. c. S.W.2d “Generally, 122-123: order to have points One of the relied on estoppel judgment (res adjudi- a former the court overruling erred *4 cata), Identity motion the summary judgment. for Defend- there must be: of (1) estoppel ant contends that the doctrine of for; thing (2) sued cause of identity of the by judgment applicable; verdict and is that action; identity (3) persons of and the plaintiff, Prentzler, estopped is from main- parties action; identity (4) and of taining this action judg- the verdict and quality person against of or ment in the first case tried. whom the claim et is made. Rossi v. Davis al., 362, 363, 133 loc. S.W.2d cit. petition pleaded negli- in each case 373, 1111, 125 A.L.R. and cases there cited. gence part on the of each defendant’s de- is, however, The rule general stated and ceased driving wrong driver in on the side judicata may exclusive. Res ad be as to a of the road. in The answer each case judgment particular or as to some facts pleaded contributory negligence of each litigated parties. between the In Mc re plaintiff’s driving Menamy’s 98, deceased husband in on Guardianship, 307 Mo. loc. 662, 665; cit. 270 S.W. loc. cit. Boillot wrong first case side of the road. The Guaranty Income tried, Prentzler, Mo.App., 124 Schneider S.W. Administra- * * * 2d loc. cit. tor, ‘A fact or negligence was on that de- submitted of question actually which directly was and in wrong fendant’s driving decedent in on suit, issue in ju a former and was there contributory side of the road negligence dicially passed upon plaintiff’s of determined a driving that decedent on the in jurisdiction, domestic court competent of case, is wrong side road. The instant conclusively settled judgment there the second case was submitted on in, so far parties as concerns the to that ac charges negligence same and contribu- persons them, tion and privity in tory indicated, with negligence. first As again cannot be litigated any future ac county jury that Saline found that tion parties privies, between such or (Prentzler) negligent- defendant’s decedent same court or in any other of con ly drove on the court wrong side of road and jurisdiction, current upon either the same plaintiff’s (Schneider) that that decedent or a cause action. This doc driving right on his side of the road and different trine, that a question contributorily was not has negligent. In the fact been actually directly in issue in a Randolph county jury instant case the former passed suit and found, judicially has been contrary finding upon and determined court domestic jury, that defendant’s decedent competent jurisdiction liti cannot (Schneider) negligently wrong drove on the gated again in subsequent suit between plaintiff’s side of the road and that this de- parties the same privies, their simple is cedent on (Prentzler) driving universally recognized in contributorily side in almost and was not road Thus, negligent. cases, only difficulty or con the results in numerable the two overruling de- ; application particular tion did not err flict in its the court summary judgment. motion for (Emphasis theirs.) cases’.” fendant’s point by defendant relied An allied Obviously, issue deter the fact striking from her the court erred that case mined in the first tried was same the defense that the answer But, that in case. that determina does is- judicata tried is case res first estop plaintiff maintaining this tion said have in this action. we sues What She conclude not. action? We does adversely to disposes point of this above action, she was not nor was defendant. privity that action. with the defendant in upon stated, Another relied de As in the first ac Prentzler, plaintiff failed to tried Paul administra fendant is that make tion plaintiff’s hus deced tor the estate of deceased submissible case and band, He, contributory negligence guilty as ad Kenneth Lee Prentzler. ent was law; that, therefore, ministrator, only proper party was the de as a matter of Organ, overruling fendant in that action. her motions Clarke v. court erred Mo., the evidence [4]; directed verdict. We review giv plaintiff, light V.A.M.S. This in a most favorable to Prentzler, would not benefit infer ing widow Kenneth her the of all favorable *5 proper defendant, therefrom, de arising disregard have been and ences and may any except could as it right not have had of control over insofar fendant’s plaintiff. Joseph the defense of that action. The defendant assist Goddard v. St. Co., Mo., Light first action could asserted Power the not have and 379 S.W.2d as a wrongful counterclaim the claim for portions of a We use essential statement Prentzler, death of Kenneth Appeals. Day the of Brandon, Mo., of the evidence alive. 394 S. 405; 1959, W.2d V.A. was testified that her husband Plaintiff M.S. in an pickup truck driving the Chevrolet 40 to 45 easterly speed at of direction The claim by plaintiff asserted for the front riding right mph. in the She was wrongful death of her husband is an en dump truck first saw defendant’s seat. She tirely statute; claim created not new it is highway from a rise in the it came over the belonging result of a revival of a claim westerly direction. east, traveling in a the lifetime; to the not deceased his it did the of middle dump truck was in the exist before Cummins husband’s death. tried driver stated that its road. She City v. Kansas Public 334 Mo. Service back, were turn- his front get wheels 920; 672, City 66 of St. Glasgow S.W.2d ed, get did not he could and but that not Joseph, 353 Mo. 415 184 S.W.2d road before right side of the back to Express Company In Plaza v. Gal [5]. proper pickup in its was the collision. loway, al., et pavement. edge the south of the lane near [6, 7], 23 this court held that the widow from its did not know exact distance She persons are and administrator different may have pavement, the but it edge the of privity other, are not in with each two did not remem- been one or feet. She determination of a fact issue in an action itself, impact anything there- ber the or judicata one is res action another hospital after, the until she awakened in growing out the same accident. days that the col- later. She stated some stated, sudden”, For the reasons we hold that “all “real lision of a or occurred estopped maintaining fast", exactly is not and that she did not know elapsed this action the in the first ac- time from the time she how much 140 dump point at a truck until the im- heaviest concentration of debris sighted
first
the
one, two,
pickup.
the
pact,
three or
12
of the front of
might
but that it
feet west
gouged place
highway
did
know whether There
in the
four seconds. She
pickup
the front wheels of
in the
lane near the
about two
husband turned
south
pickup
applied
edge
pavement.
or
his brakes.
feet from the south
high-
gouged place
was also a
There
pickup
truck came
After the collision
way in the
about in the center
north lane
slanting
the eastbound or
to rest
across
A
of debris.
the heaviest concentration
highway facing
north-
south lane of
right
long
mark 12
from the
skid
feet
ran
pick-
right front wheel of the
west. The
westerly in a
pickup
front
wheel of
of,
up
on,
slightly
north
center
point
north of
curve to
6 to 12 inches
highway and the rear end was
line of the
near
the center
skid mark
line. Another
per-
edge
pavement,
on the south
edge
pavement
extended
south
haps partly on the
The Schneider
shoulder.
pick-
an arc from the left
wheel of the
rear
dump truck came to rest 202 feet west of
up
dump
feet
truck
10
to the west. The
pickup,
the north
off the road on
by dual
had
rear
made
dual
wheels. Marks
side, with
wheels at
north
its front
point
tires
the south lane
at a
started
edge
pavement
end in
its rear
point
pickup
east
came
where the
ditch,
A
facing almost due south.
west,
curving
rest and ran
across
cap
pickup
breather
from the
was found
line
ve-
center
into the north lane. For a
top
the ditch
the embank-
across
and on
marks
traveling
hicle
west these dual tire
road, ap-
ment
south side of the
right
up
curved to the
to the
led
proximately
edge
south
feet from the
heaviest concentration
There
of debris.
pavement.
The left hand door of were
marks on
north shoulder
pickup
had been
torn off and
found
highway showing
bank of the
where
just
pavement
off
on the south shoulder
dump truck hit the bank
feet west of
pick-
of the road 100 feet west where the
where the
came to rest.
up
came to rest. The
front wheel of
dump
Other marks indicated where the
*6
dump
the
truck was found on the road 50
truck
be-
rolled over twice on
side
its
dump
feet east of where the
truck came to
it
fore
came to rest.
rest.
point
pickup
At the
came to
where the
debris,
water,
consisting
There was
slightly
rest the road is
banked and slants
oil,
parts,
glass,
broken metal
shake-
broken
the north.
oil
drains to
Water and
down,
in the
shells which had been carried
pick-
the
running
out of
front of
the
etc.,
up
“literally
road.”
the
pickup,
all
the
across
north lane.
over
the
Debris was on the south shoulder on
pickup
damaged
The
on its left front
road,
pickup
under the
south half of the
corner and
all
The driver’s
on
its left side.
road,
truck,
on the north lane of the
completely de-
side of the front seat was
con-
on the
The heaviest
north shoulder.
headlight was
molished.
left front
The
the westbound
centration of debris was in
Al-
gone,
the left front wheel broken.
lane,
heaviest
north
the center of this
the
damaged
four
appeared
though
to be about
the hood was bent
concentration
not
grill
headlights
of the
The sheriff
between the
did
show
feet north
center line.
witness, a
truck was
impact.
dump
of Howard
and another
evidence of
head-
col-
its
(near
damaged
whose home the
not
the front. Both of
Mrs. Brown
left
occurred),
lights
that the heaviest
and unbroken. The
lision
testified
were intact
the side.
damaged
front
on
concentration of debris was
front
fender was
overhang
door,
The in-
front
pickup
the
came to rest.
front
left
where
left
the
patrolman placed
dump body,
the
and the left side of
highway
of the
vestigating
de-
finding by
jury
the
that defendant’s
saddle-type
consid-
gasoline tank showed
dump
operated
truck
negligently
the
cedent
damage
impact.
the
erable
from
into collision
wrong side of the road
on its
approaching
point of collision
In
plaintiff’s
pickup
truck and that
with
west,
east,
traveling
negligent.
not
decedent was
In
relatively straight
road.
was on a
from the
approaching
point
collision
may not
Considering this evidence we
east,
around
dump
truck traveled west
con-
say plaintiff’s
guilty
decedent was
could
slight
(beyond
curve
which a driver
law.
tributory negligence as a matter of
not
and over a
in the road.
see)
rise
hold that
made
submissible
We
court did not err
case and that
repeatedly illustrated
All of the witnesses
for directed
overruling defendant’s motions
testimony by marking
photographs
their
ruling
point
rules
verdict.
on this
also
Our
scene,
no
rough diagrams
the court erred
defendant’s contention that
picture
presented
jury
doubt
clear-
to the
plain-
P-1,
giving
instruction
offered
accurately descriptive
er
than
and more
tiff,
sup-
not
because
instruction was
expressed by
can be
words.
ported by
evidence.
substantial
Although
greatest
area of
concentra-
tion of
shakedown and debris was
point
we need
The last
relied on
highway,
north lane
fact
this
alone
contention that
consider is defendant’s
implicit
finding
does
make
testi
permitting
court
erred
point
impact
north lane.
collision,
be
fy
concerning
to facts
impact
Determination
incompetent
cause
as a witness
she was
peculiarly
jury.
province
within the
Plain
under the Dead Man’s Statute.
Conger,
See Hamre
tiff
that she was not
asserts
Mo.,
Shockley,
S.W.2d 242 and Chester v.
witness, but,
incompetent,
as a
if
the estate. county circuit court of Greene tate court de- During argument in this oral aside, granted was set a new specifically fendant abandoned county Lampe, to Polk case went relating juror. to misconduct of a transcript of change of venue. is affirmed. a witness plaintiff’s cross-examination Probate Court in his brother’s claim in FINCH, except J., who con- All concur Polk offered sep- part part and dissents curs county plaintiff trial in trial. At the Polk opinion arate filed. relating to testify facts permitted to connec- transactions with deceased AND CONCURRING DISSENTING note, ob- all over defendant’s tion with the OPINION incompetent as jection that defend- witness. Plaintiff contended FINCH, Judge. incompetency by cross- ant had waived his he regarding his claim when examining him portion respectfully from that I dissent Probate for his brother was witness majority opinion which holds opinion expressed no The court Court. incompe- objection waived incompetency was to whether tency plaintiff under merely by his cross-examination waived *8 in; I the other V.A.M.S. concur said, because, court his brother’s opinion. portions majority of plaintiff’s cross-examina- defendant used it in evidence by offering him against tion assumption the ma- Making the same thereby county trial and in the Greene opinion plain- made jority that 491.010 held incompetency. The court waived his witness, nothing incompetent as a I find tiff “ * ** plaintiffs that, offering incompe- to a that constitute waiver of for- tency. here transaction (about the testimony mer process. in the has been waived plaintiff’s deposi- witness did not take
Defendant a rule which her. a result is reminiscent of interrogatories to Such or submit tion that prevailed in some courts at one time trial of Neither did she at actual parties for a directed any part both moved all where case seek to offer verdict, thereby jury. trial they had waived testimony transcript of which con- my judgment, party should not be In given County (Schneider in the Saline case ain choice Prentzler, Mo., fronted with such Hobson’s 307). v. 391 S.W.2d judg- summary utilize to decision whether to only thing which defendant did procedure. ment summary judgment under Civil move This motion was Rule V.A.M.R. theory barred
on the the suit was by judgment estoppel
under the doctrine of reason of verdict County previously tried case. Saline transcript proceedings all
The entire County was at- the Saline case summary judg- tached to the motion for Missouri, Respondent, STATE of testimony transcript ment. That included This, in given by in that case. Appellant. HART, Clifford my equivalent judgment, was not utiliz- No. 51516. ing discovery procedures waiving the incompetency manner, in that nor was Supreme Missouri, introducing same as in the actual Division 1.No. transcript testimony part given all or of a Feb. incompetent previous in a witness hearing. trial or The latter is what oc- Lampe
curred in Franklin American
Trust majority opinion cited is
an analogous case. merely sought
Defendant utilize disposition on mo- to ask case effect,
tion under Rule In she said 74.04. prior the trial court should look at County case and it would see estoppel by judgment
the doctrine of course, court, had
applicable. The transcript in that to de-
look at the case apply
termine whether to the doctrine transcript
estoppel by judgment but the actual trial. used majority opinion is to
The effect
say such as under circumstances that the confronted defendant
that which procedure utilized at
summary judgment peril. If a testified witness who
previous case would bar, success-
the case at and movant is not summary urging the motion for
ful *9 incompetency then the
judgment,