*1 The question payment. tbe submitted specifically instructions, in Ms issue There was no payment. ruled, was question, as have real we possession prior adverse title issue on have been no there could instructions could not therefore, payment, if there general, and count was verdict on each jury. The misled the held, then and we have so payment, evidence of was substantial granted. have been trial should not new reversed trial should be granting the new judgment order or The order, rein- to set aside said with direction remanded the cause It so judgment is enter thereon. for defendant verdicts state the Osdol, CG., concur. Van Dalton ordered. by Bradley, C., adopted foregoing opinion
PER CURIAM: —The judges All the concur. court. Company, Service ex rel. Kansas Public of Missouri State Ewing Relator, T. Cave C. Corporation, Bland, Nick Judges Appeals, of the Kansas Court of Samuel A. Dew, Billingsley Broadston), (Mrs. Eveline B. B. Eveline 211. Adversely (2d) Affected. No. 39209. 187 W. Party to be May One, Division Charles L. Carr and Eogsett, Trippe, Depping & Eouts for relator. *3 and Eveline respondents
Trusty Pugh & and John W. Hudson Broadston). B. Billingsley (Mrs. B. Eveline *4 alleged quash for OSDOL, the record VAN C. Certiorari Appeals the Kansas Court of of decision which conflict injuries personal plaintiff an action for judgment in affirmed sustained in a plaintiff collision an in automobile, between which riding as a guest, and a operated streetcar owned defendant. and. The writ issued, and the submitted certified, the record cause prior newly herein to the adopted effective date of the Constitution Missouri, respondents may Facts as stated be studied Billingsley in App., v. Kansas Public Service quoted and necessary the stated facts so will as opinion. the course of this
Relator opinion contends conflict is in respects, decisions this court in (1) in-holding four there nowas substantial cated; driver evidence that the of the automobile was intoxi-
(2) overruling assignments (in error in- given plaintiff’s request structions at and the trial court’s failure contributory negligence) to submit an issue on the untenable ground that there was no substantial evidence the driver was intoxi- cated; (3) holding Nos. 1 Instructions and were not erroneous in submitting degrees authorizing negligence recovery the upon any degree negligence defendant; holding (4) confusing Instructions Nos. 3 and 7 were misleading, not so argumentative prejudicially to be erroneous. (2).
(1) given plaintiff, Instruction No. the at instance of negligence submitted the rule, under humanitarian authorized for plaintiff, explained concurring verdict the negligence effect of defendant, of the driver and and concluded with a “If paragraph, you find from so accordance with above instruc- rendering then in tion, your verdict you under instruction will totally disregard any liquor use night by Mr. Childers ” driver) any (the person other in the automobile. And Instruction 7, given No. at the plaintiff, instance of submitted an issue of negligence, verdict, authorized a explained the effect of con- curring negligence defendant; driver fur- stated, you ther “and be so this would even if from found the evi- any dence that Mr. Childers was to extent under the influence of liquor concurring and that such contributing cause with ’ negligence, so, urged such if of said defendant. it was ’. Defendant jury relating any error so liquor,” instruct to “the use of relating evidence that any the driver “was to extent under liquor,” the influence of K plain- because Instruction submitted that jury tiff could not recover if the believed the collision was caused di- rectly solely by negligence Respondents’ of the driver. ruling discloses that no error was committed because quoted language the above *5 inclusion of in instructions, “since tending prove there was no substantial evidence to was that Childers 208.) (181 page respondents’ intoxicated.” 2d at ¥e believe assignments ruling cannot be construed as (in error language in including quoted respondents the instructions) had been of the view there was substantial evidence the driver in- was toxicated. alleged Defendant had plaintiff negligent eontributorily riding in an automobile with an intoxicated driver. It was con
tended that defendant Instruction No. was erroneous authorizing plaintiff a verdict for negligence as without submitting the defense of contributory negligence riding plaintiff in an automobile with an ruling intoxicated In driver. this conten adversely tion defendant, respondents to stated as the bases of their ruling, “Defendant did not any submit question on the (our driver’s intoxication italics) there was no substantial upon evidence the ease (181 which to base such instruction.” an 208.) page W. 2d at And, “There was no substantial evidence tending prove (our italics) Childers was intoxicated and de sought fendant no (181 instruction on said issue.” S. W. 2d at 209.) page controlling Relatordias cited cases which are asserted to be upon question of this court necessity decisions of the of sub mitting alleged contributory an issue negligence upon which there is evidence, request substantial no for the submission of the issue being made defendant. Respondents, seems, ruling it made on no question as, according inasmuch view, to their there was no sub stantial [213] evidence tending prove the driver was intoxicated. upon question There could be no conflict of decision which re If, not spondents law, did rule. a matter of sub there no having stantial (and evidence the driver was intoxicated defendant sought then, course, issue), respondents’ ruling no submission of the assignment adverse defendant on the in failing of error to submit alleged contributory negligence violates decision no this court. See Dorman v. East St. R. Mo. Louis 2dW. suggested It has been that hot substantial evidence of only driver, proof plaintiff or should intoxication of the but also could necessary known the driver’s intoxicated condition would alleged negligence contributory submission defense riding in an automobile with an intoxicated driver. Absence of evi knowledge, if, indeed, dence the could or should have had such evidence, appear the record the absence of such does discloses be a basis of decision. (1) (2),
So, upon the contentions of conflict we will attend respondents’ ruling that there was substantial no intoxication of driver. Meyer about 3:30 point “The collision occurred at at a on m., a. City, it is Kansas where intersected
Boulevard Meyer an car Country line . . . street and the Club east-west proceeding line. Defendant’s street car a north-south line is *6 1240 riding
southward pro- and the automobile in which was was ceeding eastward at the time the collision ... It had occurred. ” raining falling. looking straight been and mist was The driver “was ’’ drove, crossing ahead as he approaching . . . testified,
Defendant’s . speed motorman “. . of street Meyer miles; passed car as he 20 entered was that he the north Meyer along (which sidewalk 60 feet from is about the center of Meyer) he 250 point saw the automobile at a about feet west tracks; nothing that at that ordinary he observed out of the about it it; time street and continued to observe when the front of the that Meyer coming car west, was 15 feet out in the automobile was 150 feet a speed at 45 per of to 50 miles hour ...”
“. . persons . There was evidence the effect that each of highball prior in the automobile had had some 6 to the one hours wreck; whiskey 2 in the car after the there were bottles of that that there wreck, apparently collision; one of which the* broken, was whiskey breath; was an odor of the car and on Childer’s that ice (no and mixer beverage) placed plain- alcoholic on the of was table Mary’s at of party Place; party tiff’s and that some there mixed bottle, a drink out ...”
It respondents is seen have ruled there was no substantial evidence intoxicated, although that testimony the driver there was that had, highball whiskey the driver one prior some six hours to the col lision; and mixer placed upon Mary’s that ice had been the table at Place, party bottle; and some there out mixed a drink that whiskey ivreck; two bottles were the car that there after whiskey an odor breath; in the automobile and on the driver’s nighttime that it misty, ap and the automobile was driven proaching ahead’’) (the “looking straight the .streetcar line driver at words, have, rate 45 per respondents to 50 miles hour. In other italicized, in effect, testimony ruled the of the facts vie have if be lieved, upon was not sufficient which the triers of the fact could reasonably intoxicated, plaintiff having inferred “of the driver was positive tending highball prove” whiskey fered that but one during night, “many (having) had been drunk witnesses (181 207.) page intoxicated.” testified the driver was not at testimony tending Respondents say, “. . . there was also no ’’ was, prove slightest degree. fact, Childers intoxicated in the (181 page 208.) Hatcher, S. W. 2d See at State v. relevancy testimony as to the and effect of of the odor of
whiskey, presence liquor automobile, man and of the of.the ner in which the automobile was driven. And the case of State may Raines, 62 S. examined. ground decisions, this court
Upon certiorari on of conflict appeals opinion quash an of a court unless that will not general principle contrary declares some law an- nouncement upon principle, or, given of this court the same aon facts, ruling contrary state of makes some a controlling decision equivalent of this court on or similar facts. State ex rel. Kansas Shain, 915; Southern R. Co. v. 2dW. *7 Becker, 420; State 341, ex rel. Himmelsbach 85 v. 337 Mo. S. W. 2d Metropolitan 385, State ex rel. Life Co. v. 66 W. Shain, Ins. S.
2d 871.
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However, unnecessary it is for us determine if the italicized not substantial evi testimony the facts we have contrary controlling intoxicated) decisions dence the driver was is clearly appears it that equivalent similar facts —for of his court on holding the driver there was no substantial evidence respondents, ruling assignments error, and thus was intoxicated weight of the evidence as to the condition of the with the treated question of there was substantial rather with the whether driver, than early by this An statement made support the issue. evidence to 513) for a Andrews, 5 Mo. that in order court (Flournoy v. court predicated supposed on state giving an instruction justified in be entirely itself should be necessary that the court it is of facts is upon which the instruction existence of facts of the satisfied may any evidence, jury (reason from which the if “there be founded; facts, the court state of not exceed its certain does ably) infer a legal as to them the conclusions thereon.” And declaring province recently giving remarked, “If the of instructions more has the court weight of the evidence an ascertainment of the contingent on were judges confusion would be thrown into law would procedural our King City Life Mo. Co., v. Kansas 350 Ins. jury functions.” usurp 2d 458. W. S. 75, weigh evidence, this
Continuing jury’s province to honor the court has court examines contention appellate held that when an not, of a de does, support that or does the submission theory only most defense, fendant’s the rule the evidence Hull, 352 Mo. may favorable considered. Rothe v. to defendant Nichols, cited; therein Steinmetz v. cases now, although subsequently (And decided 1047, 180 2d 712. Public Serv v. Kansas decision, examine Bootee respondents’ 892.) the rule established Such is ice 183 W. 2d alike kinds states applicable the decisions this court to all principle. apply In calling application of the facts all cases the Kansas Court of ing different rule in the instant ease brought conflict decisions Appeals its decision into decision, it in so far as and the record of of this court rule, quashed. should be applies different plaintiff, sub 1, given the instance of (3) Instruction No. at the jury further primary negligence, mitted an advised issue of defendant, concurring negligence of the driver effect of *8 following language, in the operator the of the automobile you from the evidence that find “If negligent sub- negligent, find that the defendant and so evidence that from the instruction, further in this and
mitted find how automobile, no matter so, negligence, if the driver such of degree, defendant, any the so, if great, negligence, and such of colli- cooperated causing the directly combined and concurred and your duty in favor of under the law to find sion, it still be would against the this instruction and (plaintiff) under Mrs. Broadston negligence concurring company because such car defendant street findings by you would such under of the automobile the driver of concurring against such or defense any relief the defendant afford you. and so found as so negligence, if of its own submitted so, italics.) (Our and request plaintiff the 7, given at the of Instruction No. jury of' further the negligence, advised
submitting an issue of defendant, as concurring of the driver negligence of the effect follows, so, of said negligence, if that such you from the
“If find the negligence of the driver of company, defendant, street car directly co- negligent, concurred, he was if find automobile, you any, injury, plaintiff, if then causing collision and operated in favor Mrs. the law to find your duty under it still would defendant, Kansas against the Broadston under negligence any because such Company, City Public Service negligent find, even he was more automobile, you if so driver if concurring negligence merely he would defendant, than
1243 negligence under finding by you, such and the defendant could not make use concurring such negligence to defeat claim ” . . . (Our italics.) Instructions recognize which so a comparison, submit the de grees, negligence or of causal connection, have been criticized this court. See Dove v. & Atchison, 798, T. S. F. Co., R. 349 Mo. 163 S. 548; Security Cento Bldg. Co., v. Mo. Sup., 99 W. S. 1; 2d Perkins Kansas Co., v. Southern 1190, R. 329 49 S. Mo. W. 103; Hires v. Letts Melick Grocery Co., ; Mo. W. 408 Sup., 296 S. Howard v. Scarritt Estate Co., 267 Mo. 184 1144; W. Magrane v. St. Co., Louis & S. R. S. W. cited by relator. court in The these cases considered instructions which degrees negligence recognized or causation erroneously had been in connection primary negligence with the plaintiff, and contrib utory negligence of defendant. None of the cases were reversed cited errors, because of the but sustaining the trial courts’ action motions for new trial because upheld of such error was in the Cento cases of Security Bldg. Co., v. Co., Perkins v. Kansas Southern R. Hires v. Grocery Co., Letts Melick Co., Howard Searritt Estate supra. In of Young the case & Louis, Co., v. St. I. M. S. R.
307, 127 by relator, cited upon negligence an action under the humanitarian rule, requiring instructions find jury for defendant employees “wanton, unless conduct of its will ful and properly reckless” were held to have refused. The ob been jectionable italicized clauses of Instructions and 7 herein were Nos. portions jury in the of the instructions which advised the concurring negligence effect of the the driver of defendant. Eespondents’ opinion cases appears not to be in conflict with the including relator, studied, cited and such we other eases (and Hollister v. Aloe A. S. 2d 606 *9 case, subsequent the more decision, recent Baker 873). Co., 625, v. Kansas Public Service 183 W. S. 2d 1, 3 are so (4) contends Nos. and 7 Eelator Instructions require reversal, confusing argumentative as to a misleading, “may some- that, respondents’ opinion while instructions separate fairly a issue and we verbose, each them submits what ’’ confusing misleading, say they contrary cpntroll- cannot are ing compared court. the instructions We decisions of verbose, repetitious, relator. those considered in cases cited The the instructions herein argumentative character of is somewhat in considered some comparable the instructions by relator. cited cases confusing instructions, prejudicially erroneous But because in cited erro- the trial courts the cases were given .misleading, being instances) verbose, repetitious only (in some in neous not evidence did tbe submitting issue wbicb argumentative, but in an assum 546); in W. 2d Co., support Sup., v. S. (Gleason Texas Mo. silent record was claim the fact as to which ing party’s claim a assuming the 547); in 2d (Lammert Wells, 321 Mo. 13 S. W. 952, v. Co., 107 Pac. R. Missouri (James of controverted issue v. affirmative emphasis giving undue singling 31); Mo. 18 W. out Starrett, 336 v. Mo. evidentiary (Dawes single fact supporting instruction another being in conflict with 43); 2d direct 82 W. 172); in 139 S. W. Co., R. Pac. given (Stid v. Missouri failing negligence and and humanitarian mingling matters of Berberich, 332 (Freeman v. as to either stituation the whole to cover fail to being so disconnected 393); 60 S. W. Mo. authorizing (Stu verdict essential issues include the submission nega assuming the 446); in 516, 235 S. W. Dickinson, 290 Mo. v. art finding upon a controverted on a dependent duty tive which of a Co., Sup., Bridge Transit Mo. & (Rice v. Jefferson fact Gardner Louis ease v. St. 746). The 216 S. W. by the 86, had been refused 85 S. Sup., Union Trust commenting upon and misleading in court; the instruction trial evidence. Contention portion of the one circumscribing the effect of against relator. is ruled (4) of decision conflict quashed part. should be respondents’ decision record of The GC., Bradley Dalton, concur. ordered. It is so foregoing opinion C., is Osdol, PER CURIAM:—The Van judges All the court. concur. as the adopted Lackey, Appellant. v. U. H. Hallauer Barrows L. Isabella Lackey, Appellant, U. H. Fred Hallauer Elizabeth L. (2d) 39271. 188 S. 30. Hallauer. No. One, May 1,
Division. 1945. Rehearing Denied, June