Summary
In Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500 [2], this court stated: "Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions.
Summary of this case from Clevenger v. WaltersOpinion
No. 43143.
July 13, 1953. Rehearing Denied, September 14, 1953.
Plaintiff child, a pedestrian on the shoulder of a highway, was injured when a truck collided with a tractor-trailer at an intersection of the highway. The driver of the tractor-trailer was not an independent contractor as a matter of law. The instructions against the respective defendants hypothesized sufficient facts. The instructions of the respective defendants were not prejudicial to their codefendants. The verdict was not excessive. Hyde, J., concurring, holds that all essential facts were hypothesized and that defendants could have requested a more specific instruction.
1. MASTER AND SERVANT: Truck Owner and Driver Not Independent Contractor. The owner and driver of a tractor-trailer leased it to defendant Trammel who paid the driver a salary and told him where to drive. There was a jury issue that the driver was the agent and servant of Trammel and not an independent contractor.
2. NEGLIGENCE: Motor Vehicles: Collision at Highway Intersection: Injury to Pedestrian on Highway Shoulder: Instructions Hypothesize Sufficient Facts. The instruction against the driver of the pickup truck which collided at a road intersection with a tractor-trailer, resulting in the injury of plaintiff, a child walking on the shoulder of the highway, and the instruction against the driver and the lessee of the tractor-trailer both hypothesized sufficient facts, there being no divergence in the evidence of the parties as to the essential facts and circumstances which concurred to bring about plaintiff's injuries. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, is overruled in part.
3. NEGLIGENCE: Motor Vehicles: Trial: Collision at Highway Intersection: Instructions Not Prejudicial to Codefendants. Instructions given on behalf of respective defendants were not prejudicial to their codefendants.
4. DAMAGES: Verdict Not Excessive. A verdict of $8000 to plaintiff minor for an injury to her leg and back and $2000 to her parents was not excessive.
HYDE, J., concurring.
5. NEGLIGENCE: Motor Vehicles: Essential Facts Hypothesized. All essential facts which would cause actionable negligence under the evidence were hypothesized so that the jury were properly informed as to what facts they must find to reach a verdict for plaintiff. If a defendant should desire a more detailed submission or explanation, he should request a fuller, more definite or more specific instruction. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, is distinguished.
Appeal from Stoddard Circuit Court; Hon. James V. Billings, Judge.
AFFIRMED.
Dalton, Treasure Dalton, John M. Dalton, Harold B. Treasure and John Hall Dallon for Albert James and J.W. Trammel, appellants.
(1) The uncontroverted facts in this case conclusively show that Albert James was an independent contractor and the trial court erred in failing to sustain defendant Trammel's motion for directed verdict. Ross v. St. Louis Dairy Co., 98 S.W.2d 717; Baker v. Scott County Milling Co., 20 S.W.2d 494; Skidmore v. Haggard, 110 S.W.2d 726; State ex rel. Chapman v. Shain, 147 S.W.2d 457; O'Brien v. Rindskopf, 70 S.W.2d 1085. (2) Instruction 1 given at plaintiff's request and Instructions 4D, 5D and 6D given at request of defendant Blanche Conrad, are prejudicially erroneous in failing to hypothesize the requisite facts for the jury's determination. Yates v. Manchester, 217 S.W.2d 541; Dahlen v. Wright, 235 S.W.2d 366; Carson v. Evans, 173 S.W.2d 30; Wright v. Osburn, 201 S.W.2d 935; Ferdent v. St. Louis Pub. Serv. Co., 247 S.W.2d 773. (3) Instructions 4D, 5D and 6D given at request of defendant, Blanche Conrad are prejudicially erroneous for assuming the existence of a controverted fact, namely: the existence of a master-servant relationship between defendants James and Trammel. Boyer v. General Oil Products, Inc., 78 S.W.2d 450; Grimes v. Red Line Service, Inc., 85 S.W.2d 767; Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 978. (4) Instructions 2P, 4D, 5D and 6D are not warranted by the law or by the evidence, and the giving of these instructions is confusing, misleading and erroneous. Bury v. St. Louis-S.F. Ry. Co., 17 S.W.2d 549; Hurger v. Doerr 170 S.W.2d 689; Sec. 304.560, RSMo 1919. (5) The verdict is so excessive as to show the passion and prejudice of the jury. Kulengowski v. Withington, 222 S.W.2d 579; Roberts v. Carter, 234 S.W.2d 324; Medellin v. Yellow Cab Co., 99 F. Supp. 107; Jones v. Terminal Railroad Assn. of St. Louis, 246 S.W.2d 356; Arl v. St. Louis Pub. Serv. Co., 243 S.W.2d 797. (6) There is not enough competent evidence to support the verdict of the jury. Kimmie v. Terminal Railroad Assn. of St. Louis, 66 S.W.2d 561; Hayes v. Equitable Life Assur. Society of the United States, 150 S.W.2d 1113; Baumhoer v. McLaughlin, 205 S.W.2d 274. (7) The trial court abused its discretion in denying defendant's attorney the right to cross-examine Albert James. Wilcox v. Erwin, 49 S.W.2d 677; A. Graff Distilling Co. v. Wilson, 156 S.W. 23; Gurley v. St. Louis Transit Co. of St. Louis, 259 S.W. 895.
Ward Reeves for Blanche Conrad appellant.
(1) Instruction 1-P for plaintiffs was too general in submitting the issue of negligence to the jury. It did not submit the essential and necessary facts constituting negligence and submitted mere conclusions and questions of law. Rayburn v. Fricke, 243 S.W.2d 768; Stakelback v. Neff, 13 S.W.2d 575; Watson v. Long, 221 S.W.2d 967; Barnes v. Vandergrift, 238 S.W.2d 439; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (2) No facts or designated circumstances are submitted to the jury in connection with the failure to keep a lookout, which if found by the jury would make such failure actionable negligence. Ferdente v. St. Louis Pub. Serv. Co., 247 S.W.2d 773; See cases, supra, under (1). (3) The instruction was also erroneous because it did not require the jury to find that failure to keep a lookout under the circumstances was negligent. The failure to keep a lookout is not negligence per se. Watson v. Long, supra, l.c. 970. (4) If it may be said that the second paragraph of Instruction 1-P submits general negligence and the third paragraph submits specific negligence, then the instruction is erroneous, because "It is uniformly held error to submit both general and specific negligence." Watson v. Long, supra, l.c. 969. (5) Instruction 2-D gave the jury a roving commission, Rayburn v. Fricke, 243 S.W.2d 768; Stakelback v. Neff, 13 S.W.2d 575. (6) The court erred in telling the jury by Instruction 2-D it could find that the accident was caused by the sole negligence of Mrs. Conrad. Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 774; Hillis v. Home Owners Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Ferdente v. St. Louis Pub. Serv. Co., 247 S.W.2d 773. (7) As to Instruction 3-D. The court erred in giving this instruction on behalf of James and Trammel, because there was no evidence that their truck reached the intersection before or at approximately the same time as the pickup truck. The instruction was further erroneous because it impliedly told the jury that it was the unqualified duty of Mrs. Conrad to stop her truck, even though she reached the intersection first. Rayburn v. Fricke, 243 S.W.2d 768; Greenwood v. Bridgeways, Inc., 243 S.W.2d 111; Huelsmann v. Johnston, 213 S.W.2d 641. (8) The errors we have pointed out in Instructions 2-D and 3-D given on behalf of James and Trammel affect the question of defendant Conrad's liability to the plaintiffs and prejudices her interests. She can therefore complain of such instructions given on behalf of her codefendants. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767; Kelly v. Laclede Real Estate Inv. Co., 348 Mo. 407, 155 S.W.2d 90; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836; O'Donnell v. St. Louis Pub. Serv. Co., 246 S.W.2d 539. (9) As to Instruction 3-P. Instruction 3-P for plaintiffs when considered in connection with Instruction 2-D given at the request of defendants James and Trammel, was reversible error. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (10) To tell the jury the plaintiffs are entitled to the wages and earnings during minority without qualification is clearly a misdirection. Hickman v. Mo. Pac. Ry. Co., 22 Mo. App. 344; Knight v. Lead Zinc Co., 75 Mo. App. 541; White v. National Lead Co., 99 S.W.2d 535; Oliver v. Morgan, 73 S.W.2d 993; Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960; Morgan v. Durfee, 69 Mo. 469; Smith v. Hertz Driv-Ur-Self Stations, 93 S.W.2d 56; Baldwin v. Harvey, 191 Mo. App. 233; Welker v. Construction Co., 153 Mo. App. 1; Rosenkrantz v. Lindell Ry. Co., 108 Mo. 9; Brunke v. Telephone Co., 112 Mo. App. 623; Drogmund v. Met. St. Ry. Co., 122 Mo. App. 154. (11) The verdict of the jury for $8,000 for plaintiff Priscilla Hooper is grossly excessive, and indicates bias, passion and prejudice against defendants and in favor of plaintiff. Kulengowski v. Withington, 222 S.W.2d 579; Merrick v. Bridgeways, Inc., 241 S.W.2d 1015; Roberts v. Carter, 234 S.W.2d 324. McHaney McHaney for respondents.
(1) Instruction 1-P properly submitted the negligence of defendant Blanche Conrad. The instruction did not submit both general and specific negligence. Jones v. Central States Oil Co., 164 S.W.2d 914; Sullivan v. Kansas City Pub. Serv. Co., 248 S.W.2d 605; State ex rel. Spears v. McCullen, 210 S.W.2d 68. (2) Instruction 1-P in requiring the jury to find that defendant Conrad "negligently failed . . . to keep a lookout for vehicles and persons upon said highway and along the same" sufficiently submitted the negligence of defendant Conrad and the submission was not too general and did not fail to hypothesize the requisite facts necessary to guide the jury under the circumstances of this case. Fortner v. St. Louis Pub. Serv. Co., 244 S.W.2d 10; Spencer v. Kansas City Pub. Serv. Co., 250 S.W.2d 187; Riley v. Young, 218 S.W.2d 805; Nelson v. Evans, 93 S.W.2d 691. (3) One who has an obligation to look is charged with seeing what she could have seen in the exercise of the highest degree of care. If she fails to look and an injury results therefrom she is guilty of negligence as a matter of law. If she looks and fails to see what she should see, she is equally guilty of negligence. Knight v. Richey, 250 S.W.2d 972; Wilkins v. Stuecken, 225 S.W.2d 131; Kobusch v. Ruberoid Co., 194 S.W.2d 911; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023. (4) The objections based on the decision of Yates v. Manchester, offered to Instruction 2, has no application where there are no real differences in the factual theories of the parties and the circumstances surrounding the accident. Knight v. Richey, 250 S.W.2d 972. (5) The instruction did not declare the acts set forth therein to be negligent, but required the jury to find the acts specified were negligent. State ex rel. Spears v. McMullen, 210 S.W.2d 68; Nelson v. Evans, 93 S.W.2d 691. (6) Defendant Conrad has adopted and utilized the same theory of submission of negligence as was employed by plaintiffs and, therefore, cannot complain of plaintiffs' Instruction 1P. Simpson v. Wells, 237 S.W. 520; Gordon v. Park, 117 S.W. 1163; Kinlen v. Metropolitan St. Ry. Co., 115 S.W. 523; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 651 (7) Plaintiffs' Instruction 2P given on behalf of plaintiffs properly submitted the negligence of defendants Albert James and J.W. Trammel. Being submitted in the conjunctive, if either of these negligent acts alone is a sufficient submission of negligence, it is immaterial that the other act or acts specified may be technically defective. Fantin v. L.W. Harp, Inc., 242 S.W.2d 509. (8) The first charge of negligence in the instruction, i.e., failure "to keep a lookout for vehicles along and upon said highway" is not too general and does not fail to hypothesize the requisite facts necessary to guide the jury under the circumstances of this case. Fortner v. St. Louis Pub. Serv. Co., 244 S.W.2d 10; Spencer v. Kansas City Pub. Serv. Co., 250 S.W.2d 187; Riley v. Young, 218 S.W.2d 805; Nelson v. Evans, 93 S.W.2d 691. (9) The instruction was more favorable to defendants James and Trammel than they were entitled in that the failure to maintain a lookout under these circumstances was negligent as a matter of law. Wilkins v. Stuecken, 225 S.W.2d 131; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539. (10) The third charge of negligence concerned the failure of defendant Albert James to have adequate and sufficient brakes on his tractor and trailer and was more favorable to defendants James and Trammel than they were entitled. Sams v. Adams Transfer and Storage Co., 234 S.W.2d 593; Sec. 304.560 (3), RSMo 1949. (11) The rule announced in the Yates v. Manchester case has no application where there are no real differences in the factual theories of the parties and where the circumstances surrounding the accident are not in dispute. Knight v. Richey, 250 S.W.2d 972. (12) Instruction 3P given by plaintiffs when read in connection with Instruction 2D given at the request of the defendants James and Trammel was not prejudicial to appellant Conrad and she may not complain. Fantin v. L.W. Harp, Inc., 242 S.W.2d 509; Nixon v. Hill, 52 S.W.2d 208; Jones v. Central States Oil Co., 164 S.W.2d 914. (13) Instruction 2D did not mislead the jury into believing that they could award plaintiffs a verdict based on the negligent acts pleaded in that instruction. Ford v. Dahl, 228 S.W.2d 800; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Hale v. St. Louis Pub. Serv. Co., 238 S.W.2d 876. (14) If defendant Conrad thought that the jury would be confused or mislead into believing that Instruction 3P and 2D when read together authorized a verdict for the plaintiff as contended by appellant Conrad, she was under a duty to offer a clarifying instruction and her failure to do so operates as an estoppel and she cannot complain. Norvell v. Schupbach, 185 S.W.2d 323; Garnett v. Kresge, 85 S.W.2d 157; Renfrow v. Loose Leaf Metals Co., 5 S.W.2d 665; Trusty on Instructions, sec. 24, p. 106. (15) The jury did not follow Instruction 2D, but found against both defendants. Defendant Conrad cannot complain of a rejected hypothesis even though it might have been too favorable to defendants James and Trammel. Augustus v. Chicago, R.I. P. Ry. Co., 134 S.W. 22. (16) Defendant Conrad cannot complain of an instruction given by codefendants which only authorized a verdict in favor of the codefendants and does not take away her defense or increase her burden. Neal v. Curtis Co., 41 S.W.2d 543; Storey v. Peoples Motor Bus Co. of St. Louis, 37 S.W.2d 898; Phegley v. Graham, 215 S.W.2d 499. (17) Defendant Conrad certainly cannot object to the failure of the plaintiffs to hypothesize facts which she has admitted concerning her actions. Knight v. Richey, 250 S.W.2d 972; Hgenfritz v. Mo. P. L. Co., 101 S.W.2d 723; Allen v. Purvis, 30 S.W.2d 196; Trusty on Instructions, sec 9, p. 41. (18) Defendant Conrad in adopting ultimate fact hypothesis against codefendants cannot complain of a similar lack of detailed hypothesis submitted in connection with her negligence. Simpson v. Wells, 237 S.W. 520; Gordon v. Park, 117 S.W. 1163; Kinlen v. Metropolitan St. Ry. Co., 115 S.W. 523; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 651. (19) In any event, if defendant Conrad was guilty of negligence as a matter of law, she has not been prejudiced. Under the admitted and undisputed facts and the compelling inferences therefrom she is guilty of negligence as a matter of law. Knight v. Richey, 250 S.W.2d 972; Kobusch v. Ruberoid Co., 194 S.W.2d 911; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023. (20) Instruction 3D, given by defendants James and Trammel, was not prejudicial to defendant Conrad. Greenwood v. Bridgeways, Inc., 243 S.W.2d 111; Knight v. Richey, 250 S.W.2d 972; Greenwood v. Bridgeways, Inc., 243 S.W.2d 111; Lillard v. Bradford, 243 S.W.2d 359; Lowry v. Mohn, 195 S.W.2d 652; Ross v. Wilson, 163 S.W.2d 342. (21) In any event, defendant Conrad cannot complain of the second half of the instruction because it could only serve to prevent a joint verdict (which it failed to do). Eller v. Crowell, 238 S.W.2d 310. (22) If defendant Conrad was guilty of negligence as a matter of law she has not been prejudiced. Under the admitted and undisputed facts and the compelling inferences therefrom, she is guilty of negligence as a matter of law. Knight v. Richey, 250 S.W.2d 972; Wilkins v. Stuecken, 225 S.W.2d 131; Kobusch v. Ruberoid Co., 194 S.W.2d 911; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Woods v. Moore, 48 S.W.2d 201; Alexander v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1023. (23) Ordinarily the question of whether a party is an independent contractor is a question for the jury and in this instance the question was properly submitted to the jury under Instruction 1. Mattan v. Hoover, 166 S.W.2d 557; Coul v. Peck Dry Goods Co., 32 S.W.2d 758; Hoelker v. American Press, 296 S.W. 1008; Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52. (24) Defendant Trammel is not entitled to rely upon the defense that defendant James was an independent contractor since defendant Trammel did not plead as a defense that James was an independent contractor. This information is peculiarly within the knowledge of defendants James and Trammel and if defendant Trammel expected to rely upon this defense it is necessary that it be pleaded. It is not raised by a general denial. Knoche v. Pratt, 187 S.W. 578. (25) When plaintiff made a prima facie case that defendant James was the agent and servant of defendant Trammel the burden of going forward with the evidence was upon defendant Trammel. Ward v. Scott County Milling Co., 47 S.W.2d 250; Knoche v. Pratt, 187 S.W. 578. (26) Even if Albert James was employed by the J.W. Trammel Trucking Company as an independent contractor, defendant Trammel would still be liable for the negligent acts of his employee while in the scope of the employment. State ex rel. Algiere v. Russell, 223 S.W.2d 481; Cotton v. Ship-By-Truck Co., 85 S.W.2d 80; 57 C.J.S., sec. 591. (27) Where no disputed questions of fact exist, the court may declare the existence of the agency relationship as a matter of law. Baker v. Scott County Milling Co., 20 S.W.2d 494. (28) If defendant Trammel ever intended to rely upon the defense of independent contractor he has waived that right and cannot now complain. Defendant Trammel did not plead that James was an independent contractor. Simpson v. Wells, 237 S.W. 520; Rhineberger v. Thompson, 202 S.W.2d 64; Studt v. Leiweke, 100 S.W.2d 30; Hill v. Landau, 125 S.W.2d 516; Knoche v. Pratt, 187 S.W. 578. (29) J.W. Trammel Trucking Company of Dallas, Texas, a common carrier, cannot rely upon the defense that James was an independent contractor. State ex rel. Algiere v. Russell, 223 S.W.2d 481; Cotton v. Ship-By-Truck Co., 85 S.W.2d 80. (30) Instructions 4D, 5D and 6D given at the request of defendant Conrad were not prejudicial to defendants James and Trammel in failing to hypothesize sufficient facts for the jury's determination. Knight v. Richey, 250 S.W.2d 972. (31) In an action involving injuries to the minor and where the minor survives the parents are not relieved of the expense of rearing the child and, therefore, it would be improper to instruct the jury that they should deduct from the loss of services the cost of rearing the minor. Schmitz v. St. Louis I.M. Southern Ry. Co., 46 Mo. App. 380; Mauerman v. St. Louis I.M. Southern Ry. Co., 41 Mo. App. 348; 67 C.J.S., p. 758. (32) The Instruction 4P was more favorable to defendants than they were entitled. Scanlon v. Kansas City, 81 S.W.2d 939; 67 C.J.S., p. 759. (33) In determining whether the verdict is excessive the evidence will be viewed in the light most favorable to plaintiff and defendants' evidence will be ignored except to the extent it aids plaintiff's case. Davis v. Kansas City Pub. Serv. Co., 233 S.W.2d 679; Williams v. Illinois Cent. Ry. Co., 229 S.W.2d 1. (34) Where, under motion for a new trial, the trial judge has considered the excessiveness of the verdict and has refused to order a remittitur, this court upon appeal will give deference to his judgment unless it clearly appears that the verdict is so large as to shock the conscience of the court. Eller v. Crowell, 238 S.W.2d 310; Volino v. Illinois Term. Ry. Co., 200 S.W.2d 352. (35) A verdict for $8,000 and for a child whose earning power is yet undetermined is not excessive. Baker v. Kansas City Term. Ry. Co., 250 S.W.2d 999; Merrick v. Bridgeways, Inc., 241 S.W.2d 1015; Davis v. Kansas City Pub. Serv. Co., 233 S.W.2d 679; Williams v. Illinois Cent. Ry. Co., 229 S.W.2d 1; Brewer v. Rowe, 252 S.W.2d 372.
This case came to the writer after transfer to Court En Banc. Substantial portions of a divisional opinion will be used without quotation credit.
Plaintiffs, Priscilla Hooper, an infant, thirteen years old, and James Hooper and Etoil Hooper, parents of Priscilla Hooper, filed this suit in the Circuit Court of Dunklin County, Missouri, and on change of venue the case was tried in Stoddard County. The suit against defendants Conrad, James, and Trammel was to recover damages for injuries sustained by Priscilla Hooper when she was struck by a truck driven by defendant Blanche Conrad. Priscilla, by her guardian, James Hooper, obtained a judgment in the sum of $8,000 as damages for personal injuries and her parents obtained a judgment in the sum of $2,000 for the loss of the daughter's services. All of the defendants appealed.
The evidence showed that on May 14, 1951, at about 8:00 a.m., Priscilla and a number of other small children were on the north shoulder of Highway 25, a short distance east of Cardwell, Missouri. Defendant Blanche Conrad was, about that time, driving a pick-up truck north on a dirt road approaching the intersection of the dirt road with Highway 25. Defendant Albert James, who was alleged to be the servant of defendant. J.W. Trammel, was driving a tractor-trailer in a westerly direction on Highway 25. Plaintiff Priscilla Hooper and her companions were about 50 feet or so west of the intersection. As the pick-up truck was crossing the north half of the paved portion of Highway 25, it was struck by the tractor-trailer and pushed in a westerly direction for a distance of about 90 feet. The children, including plaintiff, were struck while on the north shoulder of the roadway. When the tractor-trailer came to a standstill, it was partially in the ditch on the north side [498] of the road. Priscilla was thrown by the impact a distance of 30 feet or more into a nearby cotton patch.
On this appeal, defendant Blanche Conrad asserts that a number of instructions given by the trial court were erroneous and that the verdict of $8,000 in favor of Priscilla is grossly excessive. Defendant James makes similar complaints while defendant J.W. Trammel says the evidence was insufficient to show that James at the time of the collision was the servant of Trammel.
We shall first dispose of the contention that James was an independent contractor and not an employee or servant of Trammel. Trammel did not testify. James testified that he was the owner of the tractor-trailer: that at the time of the collision in question he was working for the Trammel Trucking Company and had been working for the company since February 1, 1951; that he was paid by the trip but was "guaranteed so much a week"; that while he owned the truck and trailer which he was driving, it had been leased to Trammel. On the day in question he was transporting 9 or 10 tons of frozen fish from Cairo, Illinois, across Missouri to the Arkansas line for Trammel. The total weight of the load including tractor-trailer was about 14 tons.
Trammel contends in his brief that James was an independent contractor; that he did not have the right of control over James. James testified:
"Q. Did he [Trammel] have any control over your driving at all.
"A. No authority over the way I drove the truck."
However, further questioning disclosed the following:
"Q. Did they have authority to tell you the direction you were to go on these trips?
"A. Yes, sir.
"Q. They had the authority to tell you what roads to travel?
"A. Yes, sir.
"Q. And they guaranteed you a minimum amount of pay?
"A. Yes, sir.
"Q. And if you didn't haul anything you got that weekly salary?
"A. That is right."
Defendant Trammel offered no instruction on the question of employee or independent contractor. Plaintiff's instruction required a finding before authorizing a verdict against Trammel that James was operating the tractor-trailer "as agent and servant of defendant J.W. Trammel, and at the time he was engaged in the business of J.W. Trammel."
We hold the evidence did not, as a matter of law, show that James was an independent contractor. The jury was authorized to find that James was, in fact, an employee or agent. State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557, l.c. 565 (7, 8).
The case was submitted to a jury as to the liability of Blanche Conrad on a charge of negligence in that she failed to "keep a lookout for vehicles and persons upon said highway and along the same." As to James the case was submitted on failure to keep a lookout, failure to have the tractor-trailer under control, and failure to have adequate and sufficient brakes.
There was little dispute in the evidence. Mrs. Conrad testified that she did not see the truck driven by James prior to the collision. James testified he did not see the Conrad truck until it was too late for him to avert a collision. James admitted he did not have any brakes on the trailer, that is, the braking system was not connected so as to extend to the wheels of the trailer. The circumstances were shown to have been about as follows: the weather was clear; the roads were dry and the visibility was good. The terrain was level and there were no obstructions to prevent drivers on the highway or on the dirt road from seeing motor vehicles on either roadway for long distances from the intersection. Defendants do not contend that the evidence did not support all charges of negligence submitted.
[499] The main contention of Conrad as well as that of James is that the principal instructions given on plaintiffs' behalf were erroneous. They rely on the ruling in Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541.
Plaintiff's instruction as to Blanche Conrad reads as follows:
"The Court instructs the jury if you find from the evidence that on May 14, 1951, at about 8:00 o'clock in the morning Priscilla Hooper was walking in a westerly direction on the north shoulder of Highway No. 25 in the vicinity of the eastern city limits of the City of Cardwell. Missouri, and that while so doing she was struck by a Chevrolet pick-up truck driven by the defendant Blanche Conrad causing Priscilla Hooper to be injured and
"If you further find that immediately preceding the injury, if any, to Priscilla Hooper defendant Blanche Conrad drove the Chevrolet truck described in evidence in a northerly direction from a dirt road described in evidence on to Missouri State Highway No. 25 directly in front of a truck operated by defendant Albert James, and
"If you find and believe that the defendant Blanche Conrad negligently failed in the exercise of the highest degree of care to keep a lookout for vehicles and persons on said highway and along the same; and that because of said negligence if any, the pick-up truck driven by her collided with the tractor and trailer operated by defendant Albert James, causing or contributing to the injuries to plaintiff Priscilla Hooper, if any, then and in that event the plaintiffs, Priscilla Hooper, James Hooper and Etoil Hooper, are entitled to recover for their respective injuries and damages, if any, and your verdict shall be in favor of such plaintiffs as may have been damaged and against the defendant, Blanche Conrad.
"And this is so even though you may find that the defendant Albert James was also negligent in come respect directly contributing to cause said collision."
Defendant Conrad in her brief says. "No facts or circumstances were submitted, the finding of which would be required before it became the duty of defendant to refrain from driving her truck directly in front of the truck operated by James. The instruction was too broad and indefinite and gave the jury a roving commission."
Plaintiffs' instruction as to defendants James and Trammel reads in part as follows (omitting first paragraph which is identical with that of instruction as to Conrad, quoted above):
"If you further find that at said time and place Defendant Albert James, was operating a 1946 International tractor and trailer in a westerly direction along and upon Highway No. 25 as agent and servant of defendant J.W. Trammel, and at the time he was engaged in the business of J.W. Trammel, and
"If you further find that defendant Albert James, in the exercise of the highest degree of care, negligently failed to keep a lookout for vehicles along and upon said highway and negligently failed to have said tractor and trailer under control under the circumstances there existing, and negligently and carelessly operated said tractor and trailer without adequate and sufficient brakes at said time and place, and by reason thereof, the truck driven by the said Albert James collided with the Chevrolet pick-up truck operated by defendant Blanche Conrad, if you so find, and if you further find that defendant Albert James was negligent in the particulars set out above and that such negligence was either the sole cause of said collision or directly contributed to cause said collision, if any, and the injuries to plaintiff Priscilla Hooper, if any, then and in that event the plaintiffs. Priscilla Hooper, James Hooper and Etoil Hooper are entitled to recover for their respective injuries and damages, if any, and your verdict shall be in favor of such plaintiffs as may have been damaged and against the defendants Albert James and J.W. Trammel.
"And this is so even though you may find that the defendant Blanche Conrad was also negligent in some respect directly contributing to cause said collision."
[500] Defendants James and Trammel in their brief say. "This Instruction fails to comply with the clear mandate of the recent case of Yates v. Manchester, 217 S.W.2d 541. The vice of this Instruction was that no facts were hypothesized for the guidance of the Jury in its determination of the issues. `The submission included no standard whatsoever . . . by which a finding of negligence could be measured against the evidence in the case.' Yates v. Manchester, supra, l.c. 542. Such Instruction submits a mere conclusion of law. Dahlen v. Wright, 235 S.W.2d 366, 367."
In the recent case of Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 977, Division I of this court, in an opinion written by Van Osdol, C., took notice of the construction placed by the Bar of this State upon certain language used in Yates v. Manchester. We there said, l.c. 977: "Yates v. Manchester, supra, has been generally interpreted as requiring a particularized submission of evidentiary facts regardless of whether or not the evidence introduced by the respective adversary parties was complicated or widely divergent in tending to prove different factual situations and the facts of only one of which situations were sufficient to support a finding upon the issue or issues of negligence submitted. Such interpretation of the Yates case was justified. * * *."
The purpose of verdict-directing instructions is to make clear to the jury the essential fact issues they are to decide. In the Knight case, supra, l.c. 978, we said further: "The Yates case and cases following the Yates case are not to be read or construed as requiring the submission of facts which are not necessary or essential to a finding upon the issue or issues of negligence specifically submitted. LeGrand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706. But facts `essential' or `necessary' to support a reasonable inference and finding of negligence could not be said to be the same in all cases. LeGrand v. U-Drive-it Co., supra. Negligence, of course, depends upon surrounding circumstances as well as the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances might not be negligent in other circumstances and surroundings. Therefore it would seem there could be no stereotyped instruction which would correctly submit any issue of specific negligence in the circumstances of all cases. And where the facts are complicated and there is substantial evidence supporting divergent factual situations or theories and under the facts and in the circumstances of only one of which could a party have been negligent as submitted, then, in fairly defining and submitting the issue to the jury, in a verdict-directing instruction, the facts (even though evidentiary in the sense that they form a factual situation in which the ultimate facts of negligent conduct and causation as submitted could be reasonably inferred) essential to support the finding should be hypothesized as simply and plainly as possible in the submission of the issue, so that a jury may evaluate and weigh the evidence tending to prove and to refute the facts essential to a finding upon the issue, and so that the jury may not make a finding upon the issue based on facts which in legal effect would not support the finding."
From the principles above quoted, the following may be deduced as a general rule applicable to verdict-directing instructions in negligence cases:
Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict. In like manner, verdict-directing instructions in behalf of the defendant should recite on their face or by reference to other instructions any essential fact or facts shown or not shown which will defeat plaintiff's right of recovery. Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage [501] alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction.
Any language found in Yates v. Manchester, supra, which may be construed contrary to the principles and rule above set forth should no longer be followed.
In the present case there was no divergence in the evidence of the parties as to the essential facts and circumstances which concurred to bring about plaintiff Priscilla Hooper's injuries. Consequently, the complained of instructions sufficiently hypothesized the facts essential to guide the jury in determining the ultimate issue of the negligence of each defendant under the circumstances shown in evidence.
The trial court gave a number of instructions on behalf of the defendants. Defendant Conrad complains of instructions given on behalf of James and Trammel and these defendants, in turn, complain of instructions given at Conrad's request. An instruction was given for Conrad which in substance directed the jury to find a verdict in favor of Conrad if the jury found the negligence of James was the sole cause of Priscilla's injuries. Like instructions were given on behalf of James and Trammel. Each defendant contends that the other was guilty of negligence as a matter of law, and, therefore, the instructions were erroneous. However, the jury found, and justifiably so, that both Conrad and James were negligent and, therefore, the instructions did no harm.
The final contention is that the verdict in favor of plaintiff Priscilla Hooper is grossly excessive. The evidence showed that she was struck by the truck near her hips and thrown about 30 feet into a cotton patch. She received a puncture wound in her right leg which caused an infection to develop. On cross examination, Dr. Lamb, who treated plaintiff, gave the following testimony:
"Q. The principal injury you had to contend with was this little wound on the calf of the right leg?
"A. Yes, sir.
"Q. That became slightly infected?
"A. Let's rule out the word, `little'. Those wounds are very serious, they cost many a life."
The doctor's testimony was that plaintiff had a swelling from her hip to her foot; that she suffered a sacroiliac injury; that she remained in a hospital from May 14 to May 23, 1951. The evidence showed that she remained in bed for about two weeks after she was taken home. The doctor stated plaintiff suffered severe pain due to the infection and back injury. Dr. Lamb examined plaintiff again in September and in November, 1951, and she still complained of pain in her back and hip. It was also shown that plaintiff sustained a shock to her nervous system causing her to become frightened when she hears the application of brakes on cars and trucks. It was shown that Priscilla before her injury was a normal child and that she participated in games with other children; that since the injury she does not play because doing so hurts her back.
The question of the amount of damages is primarily a question for a jury. Courts may not disturb a verdict as to the amount unless the evidence is insufficient to sustain the amount awarded. A verdict must either be grossly excessive or inadequate to authorize court action. The evidence as above reviewed in our opinion shows that the verdict in this case should not be disturbed. See Merrick v. Bridgeways, Inc., Mo. Sup., 241 S.W.2d 1015, l.c. 1023 (16), and cases there cited.
The judgment is affirmed.
Conkling, C.J., Tipton and Ellison, JJ., concur; Leedy, J., concurs in result; Hyde, J., concurs in separate opinion filed, in which Hollingsworth and Tipton, JJ., concur. Dalton, J., not sitting.
I concur in the opinion of Hollingsworth, J., herein. However, I think it should be emphasized that what caused the trouble in Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, was the following italicized clause in the speed submission, namely: "`At an excessive and dangerous rate of speed under the circumstances.'" The trouble with that clause in the Yates case was that there were two completely different and directly conflicting set of circumstances, so that the jury could not know from the instruction what circumstances were meant. Under one set of circumstances shown therein the southbound taxicab in which plaintiff was riding was proceeding slowly as it approached an intersection and was struck, after it passed the middle of the street, by the Manchester car traveling east at a high rate of speed. Under another set of circumstances shown therein, the eastbound Manchester car was moving slowly in a line of traffic, following within ten feet of another car, when the taxicab going fast, cut around a halted line of southbound cars and was struck as it went through the eastbound line of traffic in front of the Manchester car. (For more detailed statement see Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, l.c. 978.) For a case where it was held proper to use the phrase "under the facts and circumstances" see Block v. Rackers, (Mo. Sup.), 256 S.W.2d 760; See also Beadley v. Becker, 296 Mo. 548, 246 S.W. 561, where this Court en Banc held a speed submission good which contained no such phrase as "under the circumstances."
There is no "under the circumstances" submission in this case. The verdict directing instructions against both defendants herein hypothesize where plaintiff was (which shows she was in a place where she had a right to be and where it was not proper for the defendant to drive), what the defendant was doing, what the improper act or omission of the defendant was, what happened, negligence and causation. Thus all essential facts which would constitute actionable negligence under the evidence were hypothesized so that the jury were properly informed as to what facts they must find to reach a verdict for plaintiff. (See Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914.) Therefore, the Yates v. Manchester speed submission ruling is in no way applicable to the instructions in this case.
I would suggest that the speed submission in Yates v. Manchester would have been good if it had hypothesized plaintiff's status as a passenger in the taxicab; that defendant Mitchell (taxi driver) was approaching and attempting to cross a public street intersection, that he drove into the intersection close to and in front of defendant Manchester's car at a high and dangerous rate of speed, and that the taxicab was struck by (or collided with) the Manchester car, together with findings of negligence and causation. Such a submission would hypothesize where plaintiff was, what defendant was doing, the improper act of defendant, what happened, negligence and causation. Those were the facts essential to the creation of liability and all that was necessary to make it clear to the jury what facts they would be required to find to reach a verdict for plaintiff against the taxi driver on the ground of excessive speed. (See Constructing and Reviewing Instructions, Trusty, Sec. 5.) If the defendant should desire a more detailed submission or explanation, he should request a fuller, more definite or more specific instruction. (Sec 27 Missouri Digest — Trial, key number 256.)
Hollingsworth, J., concurs.