March 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Frank Mashak, St. Louis, for appellant.
Dearing Matthes and M. C. Matthes, Hillsboro, for respondent.
Ralph A. Thornburgh, by Oscar Thornburgh, his natural father and next friend, sued the Reorganized School District No. I of Jefferson County, Missouri, and Albert Hunkler for $10,000 actual and $10,000 punitive damages for alleged personal injuries sustained while a passenger on a school bus. He dismissed as to the School District and proceeded against defendant Hunkler. The verdict and judgment was for the defendant. Plaintiff appealed and assigns error in the giving of defendant's main instruction.
Plaintiff was injured September 14, 1950, while the pupils were being transported home after school. The school bus had a seating capacity for 46 pupils, with seven seats on each side of the bus to seat three small children each, and additional seats at the rear of the bus. Defendant had been driving the bus for approximately three years, hauling children between six and fourteen years old. The county superintendent of schools had instructed him to maintain order among the pupils on the bus, and a pupil, known as a "patrolman," assisted.
The evidence on behalf of plaintiff was to the following effect. Plaintiff, who was about 12 years old, was seated next to the aisle in the second seat on the right hand side of the bus, with Robert Michael at the window. Some boys in the rear of the bus were "cutting up a little," "talking too loud and laughing," "acting silly." Teddy Smith was one of them. Defendant told the boys to be quiet and they quit. However, they soon started in again and defendant stopped the bus, went to the rear, took Teddy by the shoulder, brought him to the front of the bus, and, according to plaintiff's witnesses, "jammed," "rammed," "shoved," "pushed" Teddy down in the seat by plaintiff. Plaintiff testified that this caused Teddy's right elbow to strike him in the left groin and he immediately suffered pain. Plaintiff was on the bus for some time thereafter but did not tell defendant he had been hurt. The injury resulted in the removal of plaintiff's left testicle a week or two later.
Teddy Smith was 8 or 9 years old and mischievous. Lola Thornburgh, a sister of plaintiff, testified that she was "patrolman," charged with the duty of preventing disorderly conduct of the pupils on the bus, and had corrected Teddy a short time before the occurrence.
Plaintiff adduced testimony that Teddy Smith had moved to California and that Robert Michael was ill with the measles at the time of trial. Neither testified in person or by deposition.
Defendant was 56 years of age at the time, married, and had a grown daughter. He testified he did not have any independent recollection of the occurrence testified to. Teddy Smith rode the bus for three years, had caused disturbances on the bus on different occasions, and three or four times defendant had to move him to a seat away from his companions. (Plaintiff's witnesses gave like testimony.) He never sat the Smith boy down in a rude or violent manner or rammed or pushed him into a seat. He didn't want to hurt any of the children. He found out from the secretary of the school board about six months after the occurrence that plaintiff claimed he had been hurt. No member of the school board ever complained to him.
Harry Hoene, president of the school board, testified that the board first learned of the occurrence when the secretary of the board informed them of it about six months after the injury.
Plaintiff's father testified he notified the secretary of the board on the Monday after plaintiff went to the hospital in September, 1950, and he talked to Mr. Hoene four or five months after it happened. He never said anything to defendant.
Defendant's questioned instruction, after an introductory paragraph to the effect that the operator of the school bus was charged with the duty of maintaining order among the pupils on the bus and had the right to use reasonable methods to maintain order continued, so far as here involved: "* * * and if you further find that Teddy Smith was creating a disturbance on the said bus, and that the defendant, Albert Hunkler, attempted to restore order on the part of Teddy Smith, and if you find that in so doing the defendant Hunkler placed said Teddy Smith in a seat near the front of said bus, and if you further find that in so doing the defendant, Hunkler, did not use more force and effort than was reasonably necessary, then your verdict in this case must be for the defendant, and this is true even though you may find and believe that the plaintiff was struck and injured as the result of Teddy Smith being placed in said bus seat."
Plaintiff in his points and authorities states, so far as material here: "(a) Instructions should not assume or impliedly assume the existence of * * * essential facts." Osborn v. Chandeysson Electric Co., Mo.Sup., 248 S.W.2d 657, 663, 664; George v. Allen, 362 Mo. 971, 245 S.W.2d 848, 850[3, 4].
"(b) It is improper for a defendant to hypothesize by way of defense a matter of which there is no evidence." Crites v. Kansas City Public Serv. Co., Mo.Sup., 190 S.W.2d 924, 926[5-7]; Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16, 25.
"(c) Instruction is prejudicially erroneous because it is a mere declaration of law, outside of the issues of the case, and broader than the pleadings and the issues and wrongfully directs a verdict for defendant. State ex rel. Central C. C. Co. v. Ellison, 270 Mo. 645, 654, 195 S.W. 722, 724." Plaintiff further states under this point: "The instruction is erroneous in law in its abstract statement thereof." Morton v. St. Louis-San Francisco R. Co., 323 Mo. 929, 20 S.W.2d 34, 41[1-7], McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 S.W. 880, 881, 882, 66 L.R.A. 486; Kyle v. Fidelity Casualty Co., Mo.App., 244 S.W.2d 418, 420.
Defendant concedes that instructions which assume the existence of controverted essential facts, or instructions hypothesizing a defense of which there is no evidence, or instructions broader than the pleadings and issues are improper, but states that plaintiff utterly fails to connect in any way or to point out wherein the questioned instruction violates any of the principles of law referred to. As to the duty of an appellant in presenting his points and authorities, see Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 100[1-3], 102; Wipfler v. Basler, Mo.Sup., 250 S.W.2d 982; Gurley v. St. Louis Pub. Serv. Co., Mo.Sup., 256 S.W.2d 755. There was evidence, as developed hereinafter, upon which to base the instruction and we perceive no such plain error as to invoke the exercise of the discretion of the court under Supreme Court Rule 3.27 to prevent manifest injustice or miscarriage of justice. 2 Carr, Mo. Civ. Proc., § 853.
We, in endeavoring to ascertain from plaintiff's brief wherein the questioned instruction, for instance, assumed a disputed essential fact or is broader than the pleadings and the issues, have experienced the same difficulty that confronted defendant in applying the cited authorities to the instruction. And, cases ruling that plaintiff made a submissible case on a particular issue (for instance, the Morton and Kyle cases, supra) are not necessarily controlling, plaintiff having the burden on the actionable issues submitted. The instant case was submitted to the jury.
The gist of plaintiff's position as gathered from his argument appears to be that plaintiff was entitled to recover as a matter of law. Plaintiff argues, although he designates the questioned instruction as a converse instruction, that defendant had no right to touch Teddy Smith, or "`shake him or push, ram, jam or set him down real hard merely because the child had allegedly irked him. How could a jury determine from defendant's evidence what force would be justified? Defendant gave no evidence." We do not agree.
While defendant had no independent recollection of the occurrence testified to by plaintiff's witnesses, he testified, among other things, to the following effect on direct examination and on cross examination as follows:
"Q. Did you ever ram him [Teddy Smith] down in the seat like these children testified to? A. No.
"Q. Never did? A. No.
"Q. Did you ever push him in a seat? A. No, I never pushed that boy. When I sat him down, I took him by the arms and told him to sit down and be quiet.
"Q. How would you do that, just ask him to do that and get him by the arms and say, `sit down and be quiet,' is that the way you did it? A. Yes.
"Q. Never pushed him? A. No."
Plaintiff cites no authority that the foregoing testimony has no probative value. Plaintiff made no complaint at the time and defendant was not advised of the occurrence for approximately six months. His testimony that he never pushed Teddy Smith into a seat was positive testimony although negative in form. The conflict between plaintiff's testimony and defendant's testimony was for the triers of the facts. McIntyre v. Live Stock Shipping Ass'n, 222 Mo.App. 935, 11 S.W.2d 77, 80; Stotler v. Chicago A. R. Co., 200 Mo. 107, 137(b), 98 S.W. 509, 518(b); Borrson v. Missouri-Kansas-Texas R. Co., Mo.Sup., 161 S.W.2d 227, 231[9-13]; 32 C. J. S., Evidence, § 1037, p. 1079; 20 Am.Jur. 1037, §§ 1186-1188; Staples v. Spence, 179 Va. 359, 19 S.E.2d 69, 140 A.J. R. 527. The jury was warranted in finding defendant committed no assault.
Plaintiff makes no point that the operator of a school bus may not maintain order among the pupils being transported to and from school. Consult Spohn v. Missouri Puc. R. Co., 87 Mo. 74, 80, Case v. St. Louis Pub. Serv. Co., 238 Mo.App. 1029, 192 S.W.2d 595, 603; Thompson v. St. Louis Pub. Serv. Co., Mo.App., 242 S.W.2d 299, 302.
Plaintiff's verdict directing instruction predicated a recovery upon findings, so far as here material, that defendant "willfully, maliciously, wrongfully and in a violent and rude manner, shoved, pushed and threw another boy who was aboard said bus into and upon the edge of the seat in which plaintiff was sitting with another boy, if you so find, * * *." Having submitted this fact issue for determination to the jury, plaintiff may not successfully urge that the issue was one of law and was not of fact for the jury. Crites v. Kansas City Pub. Serv. Co., Mo.Sup., 190 S.W.2d 924, 925. See Lindquist v. Kansas City Pub. Serv. Co., 350 Mo. 905, 169 S.W.2d 366.
The evidence was in conflict. The instruction was not prejudicially erroneous in the respects charged. We think a jury would understand, under the facts of record, that plaintiff was entitled to recover if the bus operator shoved, pushed and threw Teddy Smith in a violent and rude manner into the seat, and that defendant was entitled to the verdict if he used only such force as was reasonably necessary and, as testified to by defendant, did not push the boy into the seat.
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.