*1 involving suits and suits It to attachment is true may real a defendant be summoned possession or title .estate county process in a other that of validly .than served authority. specific statutory in the venue the action and absence Magrew Foster, Castleman, 757; v. Mo. Castleman v. Mo. those the statutes provide 258. But in instances brought county property may in be in the which such suits “shall be where, in, brought county real estate be found” and “shall go A., R. We need not . is Secs. 872-873. .. . S.. situated.” the, us, in it, question is not but difference into before since the those rem) (in one is real actions present cases and the difference the. transitory (in personam), the difference personal actions or always, instances those there is actions local And in. .the actions. may judg entering go extent which question of the. court cases, it that the suit instituted mandatory ment. In those is county property located or where the land lies. is which difference, slight is and the without sub may be distinction' that the recognized and is and there is no exists stantial but foundation reason, case, engrafting by implication compelling in the instant serving process provided by on to those an additional method statutes. .prohibition made absolute un-
Therefore, preliminary rule in is process be obtained. Westhues less and until service valid Bohling, CC., concur. adopted foregoing C., CURIAM:—The by Barrett, PER judges All the concur. court. City at the relation of Public
State Missouri Kansas Ewing Hopkins Relator, Corporation, Shain, Company, B. Judges City T. Bland Kansas Court C. Cave, Nick 428. Appeals. 38066. 165 S. W. No. Two, 12, 1942. Division November *2 Watson, Ess, Groner, Barnett & Whittaker Charles L. Carr and . relator *3 Henry Judges Roger Slaughter respondent L. for Jost and C. McEntee. *4 proceeding WESTHUES, is a certiorari in which C.—This City quash Ap the Kansas relator seeks Court City Company, Public Service peals in the case of Kansas McEntee (2d) 336. reported in 159 W. judgment against Company
McEntee obtained Service injuries $6,500.00, damages personal sustained in col- sum of riding operated and' car lision between car which was street Company. quásh the Service seeks grounds. First, respondents’ opinion it is on two claimed one, holding plaintiff’s proper two three to be instructions second, controlling court; conflict with decisions opinion ruling respondents’ evidence was sufficient to author- damages opinions ize an instruction on was in conflict dispose questions will order of this court. We these stated.' necessary briefly understand the first will be To of the collision which caused in state circumstances McEntee’s City juries. department. was member of the Kansas McEntee fire *5 Immediately response call, to the and in a he prior collision, to fire Thirty-first driving eastwardly and aii fire chief were on assistant they sounding. street with As crossed intersection of the siren the Thirty-first and Flora avenue McEntee swerved his car' street moving intersection, avoid a collision with another car the and into awith beyond car collided when reached a the intersection his City provides Kansas west street car. An ordinance of bound follows : “ ear immediately stop every operator car ‘The of street shall au- the until any position of keep clear and in such intersection ’ ” . . . thorized have emergency passed, vehicle . . . shall emer to be the department The vehicles of specified ordinance fire gency With the collision it will sufficient class. reference to car plaintiff’s street state here that tended to show evidence and question moving westwardly the collision was time at the of hand, did not of stop. part On the other on complied with operator car it was shown that of the street time of standing at ordinance and the street still car jury. The for the question presented a fact collision. Thus of re gave plaintiff’s at one, court and three instructions two numbers imposed quest. contention that the instructions relator’s ruling greater duty required and such upon defendant than the law herein will be opinions with court which conflicted certain says his : after Note relator .brief discussed. what them, 1, 2, 3, each and all “. . . said and Instructions Nos. addi prejudicial an and -respectively, improperly impose erroneous duty operator car street upon tional and defendant’s absolute avoid the obey City observe and Traffic Ordinance Kansas duty limiting operator’s car street accident without said limiting, or highest degree to the and without exercise of the of care operator submitting, negligence even of the street car part on degree highest part with failure respect to on his to exercise care.” quoting alleged The in the can be illustrated vice instructions submitting a number instruction, from after instruction two. This following: preliminary questions, concluded with the “ (if so) motor ‘. car . . siren said automobile operator was-sounding you find) audibly, (if the servant and so so actually heard, or in street car mentioned in defendant’s evidence highest degree on his could part exercisé care have your sounding sounding), if are (if heard it was said siren findings you further find from the evidence that defendant’s agent charge car did not- operating of and said street servant negligent immediately bring stop, then defendant was the same to ” car.’ operation of said street ’ number of respondents Relator insists that conflicts especially Grupp, our opinions, Oesterreicher v. (1, 2). c. In that ease an instruction was condemned be l. duty required. greater upon defendant the law placed cause it than portion condemned instruction reads as follows: *6 322
“
jury
law it was the
that under the
‘The Court instructs- the
duty
place
the time
described
the evidence
of the
at
motorcycle
degree
operation of his
highest
in "the
exercise the
care
”
colliding
avoid
with-defendant’s automobile.’
plain
In that case there
verdict for the defendant-
the
was
held
the
appealed.
tiff
The
conceded and
court
that
this
defendant
great
operator
of the
upon
instruction did cast too
burden
the
duty
motorcycle.
case, however,
in point
The
is not
here. No such
by
upon
questioned
Company
cast
the
the
instructions.
was
Service
jury
duty
The
the
that
the
the
instructions'
was
informed
-
operator
highest degree
dis
of á street car to
the
care to
exercise
by
department.
duty
imposed
the car
the
cover
fire
That
was
jury
ordinance. The
the
that it was the
instructions further informed
duty
immediately bring
car
car
of the driver of the street
to-
the street
discovering
duty
to a
stop
department
after
fire
vehicle. That
was
by
discovery
imposed
department
also
á
ordinance. The
fire
vehicle
the-discovery
treated the
sign
“stop”
is
.same as
of 'the red
on
“go” signals
busy
at
used
street intersections. Under
ordinance
the
the
of whether it
proceed
is safe to
under such circumstances
not
operator
left to
Hogan
Fleming,
the
of a
car.
In
317
street
v.
by
524,
404,
297 S. W.
relator,
dealing
cited
with
this court was
duty
situation where there
part
was no absolute
on
of the street
operator
stop
car
the car. That fact
inapplicable
renders
ease
the
present
to the
greater
situation. As we see it the instructions cast no
duty upon the
defendant
than
Service
re
ordinance
quired.
operator
The
duty
of the
car
street
understood that
he testified
department
immediately
that
noticed
fire
car and
brought his
car
stop.
street
to a
The instructions
impose
did not
duty upon
operator
the street car
to avoid the collision
did
the instruction
They
Oesterreicher case.
authorized
verdict
if
jury
the defendant
operator
found that the
of the
car
street
comply
did
ordinance.
plea
There
no
or contention
by
some unforeseen event
operator
car
un
street
able to stop.
-We need not
by
discuss
other cases cited
relator
they
do
apply
not
to the situation we have
us.
before
Some of the
other
are, Nagy
cases
v. St.
Co.,
Louis
(2d) 513,
Car
l. c.
514,
(1-2);
State ex
Shain,
rel. Snider v.
tion authorizing
jury-to
find that McEntee had
per
sustained
manent injuries.
applicable
approved
rule often
will be found
in Weiner v. St.
Co.,
Louis Public
l. c.
192 (1).
It reads as follows:
r
damages
injury
permanency
fo
‘To recover
certainty and while
injury
shown with reasonable
absolute
must be
likelihood,
certainty.is
required
conjecture
prob
mere
or
not
or
even
damages
allowance
ability,
injury will not sustain
of such
”
*7
therefor.’
case,
Plank v. R. Brown
supra,
Weiner
also
J.
Relator cited the
(2d) 328;
Co, 332
Derschow v. St.
Petroleum
(2d)
Mo. 63,
1173;
95 W.
Lebrecht
Co,
Louis Public Service
S.
Rys.
Louis,
Relator
of St.
‘Q. you any there is to whether Have INo, time? A. don’t. period he will well in a think short “ will I think you A. don’t ‘Q. mean, opinion? I an do have injuries of the time, be well in a due to the nature short instance, the severity injuries particular- person —for them, an undue strain back, I think with sacroiliac(joint as it will have doing anything that, labor, manual or like lifting, ” tendency-to recur.’ respondents’ evidence, quoted all That and in fact the evidence forth in the opinion, requirement rule as set not meet the does rulings insufficient the evidence was above cases. Under those certainty prove that McEntee sustained with reasonable *8 who question and injury. experts If the who were on this doctors e sáy injuries permanent were plaintiff that th treated would not justified laymen not be certainly jury composed a of would then despite finding. a where making in such a We can visualize situation may contrary'by injury consid experts to"the medical an evidence be desire, however, to call permanent, ered this is not-such a case. We but that case, supra, Plank opinion attention to the in the observe in quoted that that doctor testified case evidence disclosed juries by definitely plaintiff’s plaintiff would shorten sustained question of That fact to have overlooked life. seems been when Plank injuries v. permanent whether the was considered. See were 332 Mo. (2d) 328, 334, R. W. l. c. Co., 333, J. Brown Petroleum 61 S. Also, case, plaintiff that even if 1150. the observation made in that would not neces pulmonary was then afflicted with tuberculosis that sarily injury, permanent that sustained was obiter. mean knowledge that Such fact- was not in the case. is not common sprains permanent injuries. are In fractures of bones and sacroiliac injuries experts are a nature that the medical some cases of permanent. the condition Brunk v. Hamilton-Brown Shoe consider See Co., 517, (2d) 903, (26). 334 910 In of 66 S. W. l. c. other cases injuries permanent. do not See the doctors consider nature Louis, (1). Rys. 237 W. l. 113 Lebrecht v. United Co. St. S. c. of general in we conclude that rule fractures of bones and So may joint- injuries are not consid volvement of the sacroiliac permanent ered evidence to that That absent substantial effect. holding that the evidence sufficient portion respondents’ opinion was of recovery injuries permanent for conflicts authorize rulings discussed. made in the cases
325 Respondents’ opinion also mentioned that the Service Company any ruling not claim that verdict was excessive. A had made Appeals the St. the case Higgins made Louis Court v. App. 837, St. 231 Mo. Louis, Terminal R. Assn. of (2d)W. quoted c. was that unless 892, l. (7), point authority was authorizing damages permanent made an instruction when sup not ported by error. and respondents evidence harmless both .Relator Respondents .opinion not, in their point. however, briefed this did ruling any question. make definite this The writer of this any directly by ease where the ruled has not discovered many However, in well court. cases this court as as'in the Courts an,instruction Appeals propriety upon per damages been manent has considered being without mention complained made of whether the had also party being the verdict excessive. See Derschow v. St. Louis Public Service Co., Public supra, Weiner v. St. Louis following appeals: from cases the courts Works, v. Granite Putnam Unionville C.) (2d) (K. 389; Kroger Farrell Co., S. W. v. Grocer Baking & L.) (2d) (St. 1076; Chilcutt v. LeClair, 119 S. W. (2d) (Spr.) Appeals 1. Note that St. Louis Court ain case sub sequent Higgins judgment to the case reversed where an in- given authorizing permanent damages, instruction was absent evi same, dence to sustain no mention assign was made of an ment of the verdict error was excessive. Svehla Taxi See Assn., (7). Owners l. c. 228 Higgins In the judgment was reversed and the case cause remanded on other grounds. ruling Higgins The case seems not- supported to be by any and we do not deem it be a cases sound rule. respondents so far as it holds the evidence damages hereby
be sufficient to sustain injuries is *9 Bohling quashed. Barrett, CC., concur. foregoing
PER CURIAM: —The Westhues, C., is adopted judges of the court. All of concur. Wright Wright, Appellant. C. E. 38244. 165 S. W.
Irene No. (2d) 870. Banc, en
Court November 1942.