Myers v. Kennedy , 306 Mo. 268 ( 1924 )

This is an action for damages for the death of Virgil Myers, who died of injuries inflicted when appellant's automobile was struck by a street car and thrown against Myers so that his leg was crushed against the running board of another automobile beside which he was standing in a St. Joseph street. There was a verdict for $4000, and this appeal followed. The presence of a constitutional question gives this court jurisdiction. The evidence shows that Virgil Myers was standing with one foot on the ground and the other on the running board of his brother's automobile which was parked on the east side of Fifth Street in St. Joseph and was facing north. This vehicle was near the east curb and was so placed that its right front wheel was close to the curb and its right rear wheel was a foot or two farther out. The space between it and the car track was too narrow for the passage of another automobile if, at the time, a street car should happen to come upon the track at the point even with the parked car. Appellant had turned north into Fifth Street at Edmond, and had proceeded north to a point about even with or a couple of feet in advance of the machine beside which Myers was standing when the collision occurred. Appellant's automobile was struck by the street car on its left side and crowded over against the parked car, and Myers' leg was caught and crushed between the two automobiles. On several points the testimony is quite conflicting. There was testimony from which the jury could have found that appellant stopped his automobile behind and near that beside which Myers was standing, got out and examined his tires and then drove around the Myers car. There was testimony justifying a finding that appellant did not stop at all. The evidence would support a finding that as the street car came down Fifth Street it was moving five to eight miles per hour and had drawn near the Myers car when, too late to stop the street car, appellant drove out from behind the Myers car and attempted to pass between its front and the street car and was struck. There is much conflict concerning the distance between the approaching street car and the Myers automobile when appellant drove past the latter. Appellant testified, in substance, that he stopped behind and near the Myers automobile, got out and looked at his tires, and then backed up and drove around the rear of the Myers machine and up beside it, or a couple of feet farther, and at that point discovered automobiles parked ahead of the Myers machine on the same side of the street, so that he could not get by before the street car reached them; that he stopped; that the street car was then a short distance south of Felix Street, the next street on the north; this distance was over one hundred feet; that he saw the motorman was not looking toward him; that he, appellant, gave no warning or signal to Myers or any one; that he sat there and made no effort to move; that he thought, every minute, the motorman would see him; the motorman did not see him and the collision occurred. The motorman testified he saw appellant from the time he turned into Fifth Street. Some of his testimony and that of others tends to prove appellant suddenly drove into the space too late for the collision to be averted by stopping the street car. There was evidence that the motorman could or ought to have seen appellant's car and Myers in their dangerous positions in time to have stopped.

The petition alleges:

"Plaintiff further states that at said time the automobile driven by said Kennedy turned into Fifth Street and was traveling on the east side of said Fifth Street and approached the stationary automobile at and upon which said Virgil Myers was standing in said Fifth Street, and that the defendant Kennedy negligently drove his automobile upon and on and near the said street-car tracks and into the space hereinbefore mentioned, and in such manner that he, the said Kennedy, placed himself and his automobile in a dangerous and perilous position of a collision between his automobile and said street car, and that at said time said Kennedy saw or by the exercise of ordinary care on his part could have seen that a street car was approaching him and his said automobile upon said street car tracks and that at said time by reason of the said position of said Kennedy and his automobile there would likely be a collision between his said automobile and said street car, and that at said time said Kennedy knew or by the exercise of ordinary care on his part could have known that in case of said collision said Virgil Myers was in great danger and imminent peril of being injured thereby.

"Plaintiff further states that the defendant Kennedy, in negligently driving his said automobile as aforesaid into the space aforesaid and while said street car was approaching said automobile, negligently stopped said automobile so near to the stationary automobile at which said Virgil Myers was standing and said street car tracks that by reason thereof and, because of the said position of said automobile in said space, said street car came violently in contract with said defendant's automobile, and that by reason thereof said street car collided with defendant's automobile and said defendant's automobile was thrown in and upon the said Virgil Myers, and that the defendant negligently failed to give to the said Virgil Myers any warning of his perilous position so brought about by the negligence of the defendant as aforesaid, and that by the exercise of ordinary care on the part of the defendant, defendant could have given such warning and thereby saved the life of the said Virgil Myers."

Respondent instituted an action against the street car company. This was subsequently dismissed pursuant to an agreement which, omitting formal parts, reads:

"That whereas there is now pending in the Circuit Court of Buchanan County, Missouri, the case of Irene Myers, Plaintiff, v. St. Joseph Railway, Light, Heat Power Company and Thomas Kennedy, Defendants, in which said suit Irene Myers is seeking to obtain damages from both of the defendants by reason of their negligence for the death of her husband, Virgil Myers, which occurred on the 9th day of June, 1919. Now, therefore, it is hereby stipulated and agreed between the parties to this contract that for and in consideration of the sum of six thousand dollars to her paid, the receipt of which is hereby acknowledged, she, the said Irene Myers, agrees that so far as the St. Joseph Railway, Light, Heat Power Company, one of the defendants in said cause, is concerned, she will not further prosecute said suit against the said St. Joseph Railway, Light, Heat Power Company, and that said case now pending shall be dismissed as to the said St. Joseph Railway, Light, Heat Power Company, and that she will not in the future institute any other proceeding against the St. Joseph Railway, Light, Heat Power Company on account of the death of her said husband, and that she hereby covenants that she will not molest and harass in any way or in the future will she sue the said St. Joseph Railway, Light, Heat Power Company for or on account of a cause of action for the death of her said husband, and that this covenant not to sue the St. Joseph Railway, Light, Heat Power Company at any time in the future can be pleaded as a defense only by the said St. Joseph Railway, Light, Heat Power Company to any proceedings that might be brought, instituted or taken by or in behalf of herself if any such suit should be instituted in the future, it being expressly understood and agreed between the parties hereto that she will not further prosecute her cause of action against the said St. Joseph Railway, Light, Heat Power Company, but at the same time it is expressly agreed that this contract shall not prejudice or effect her right to institute and maintain a suit against the said Thomas Kennedy for the death of her said husband, and that her right to further prosecute said cause of action against said Thomas Kennedy shall remain as though this agreement had not been entered into, but she covenants with the St. Joseph Railway, Light, Heat Power Company not to further prosecute any cause of action she now has or may hereafter have against the St. Joseph Railway Light, Heat Power Company for the death of her said husband."

Thereafter this action was begun and prosecuted with the result already indicated. Other details of the facts may appear in another connection. An opinion in this case was written in Division. Some time thereafter the case went to Court in Banc. After re-argument the divisional opinion was not adopted, and, subsequently, the case was re-assigned.

Appellant insists: (1) Sections 4217 and 4218, Revised Statutes 1919, in so far as they purport to apply to automobiles, are unconstitutional, in that they deny appellant the equal protection of the law; (2) the court should have instructed the jury to find for appellant, because (a) respondent pursued one of two separate remedies to a settlement, and (b) there was no substantial evidence tending to prove the negligence charged; (3) there was error in giving respondent's instructions one and five.

I. Appellant's first contention is that Section 4218, Revised Statutes 1919, under which this action was brought, is unconstitutional as applied to death resulting from the negligent operation of an automobile. It is argued thatClassification. Section 4217 purports to apply to various vehicles and includes automobiles when used as public conveyances, and imposes a penalty for death resulting from their negligent operation when so used; that Section 4218 applies to privately-driven automobiles in like circumstances and provides for the assessment of damages; that this constitutes a division of a class for purposes of legislation without any reasonable basis therefor; and that, therefore, Section 4218 is discriminatory and unconstitutional as applied to privately-driven automobiles. Section 4218 was on our statutes long before the passage of the Act of 1905 which first brought automobiles, used as public conveyances, into Section 4217. If it be true that the two sections improperly divide a class, this division was not made until the amendment of 1905 was enacted. Prior to that time Section 4218 covered all cases of death from the negligent operation of automobiles. If the general class was not constitutionally susceptible of division, as appellant argues, then this inclusion of all in Section 4218 was valid. The act which attempted the division was the Act of 1905. If to divide automobiles by putting those used as public conveyances in one class and those privately operated in another infringed constitutional provisions, the result would be that the Act of 1905 must fall because it attempts to establish an unwarranted classification. If the Act of 1905 is unconstitutional and invalid for that reason, then it is a nullity and equivalent to no act at all. If it is a nullity, it was so at all times and was never effective to divide the class, and the class was never divided. If the class was not divided, it is all still included under Section 4218, and it was under that section that this action was brought. The Act of 1905 is either valid or a nullity, and in either case appellant's argument on this point fails. It is not intended to be held that the point made is good against the Act of 1905. Public conveyances form a constitutional class for many legislative purposes. The present contention is answered before the last mentioned question is reached.

II. It is argued that under the petition it was essential for respondent to prove that Kennedy, the appellant, drove "into the space between the street-car track and the automobile at which Virgil Myers was standing after Kennedy knew or, by the exercise of ordinary care he would have known, that he was driving hisProof of automobile into a place of danger and that it wouldKnowledge. likely collide with an approaching street car and that, as a result of the collision, the car would likely be shoved or knocked against Myers and injure him," and that there was no evidence tending to prove this. (1) The petition ought not be given the meaning appellant gives it in his argument. The language used in it certainly does not require such an interpretation. In fact, a strained meaning would have to be given the words in order to agree with appellant's construction. Appellant seems to arrive at his conclusion by an interpretation of the words "at said time" which, in each use of them, he makes relate necessarily to the time when he began to drive past the rear of Myers' automobile. The petition does not justify this. The second paragraph quoted in the statement makes it clear that, in any event, there is a charge under the humanitarian doctrine. The words "at said time" in the first paragraph refer to the time at which appellant "placed himself and his automobile in a dangerous and perilous position of a collision" and refer at least as well to the time when he placed it at the point at which it was struck as to the time it passed the rear of Myers's automobile. The words are general. There was no complaint of them before the trial. (2) The effect of the second branch of the argument under this point depends upon the soundness of the contention just considered and overruled. The second falls with the first. In addition, it may be said, there is no conclusive showing that appellant, who was in a "left-hand drive" automobile, could not, in the exercise of ordinary care, have seen Myers before he committed himself to his attempt to pass the Myers automobile. The argument really deals with the weight of the evidence. Even on appellant's present theory of the petition it would have been a question for the jury. Nor, on his theory, was it necessary for appellant to see Myers before he attempted to pass. If the situation he could see was such that one using due care ought to have anticipated injury by the course he was taking, then it was not necessary that he should be able to foresee a particular injury or injury to a particular person or thing. [Scherer v. Bryant, 273 Mo. l.c. 602; Albrecht v. Schultz Belting Co., 299 Mo. l.c. 21.]

III. In further support of his contention that a verdict for him should have been directed, appellant insists the acceptance of the sum respondent received from the street car company extinguished the cause of action. As we understand counsel to put it, the argument is that whether Virgil Myers' deathSettlement was due to the sole negligence of the street-carwith Joint company, or to the sole negligence of appellant, orTortfeasor. to "the combined negligence of both, the respondent had but one cause of action," for which there could be but one satisfaction, which could not exceed $10,000; "if the death was caused by the sole negligence of the street car company," respondent had but one remedy — that under Section 4217; "if the death was caused by the sole negligence of" appellant, then she had but one remedy — that under Section 4218; "if the death was caused by the combined negligence of the street car company" and appellant, respondent still "had but one cause of action, but she had the choice of two remedies — she could sue the street car company alone for the penalty or she could sue Kennedy alone for any actual and punitive damages she could prove, . . . but she could not recover both a penalty of $10,000 under Section 4217 against the street-car company, and her actual damages (and perhaps a penalty) amounting to $10,000 against Kennedy under Section 4218;" that respondent was put to her election whether she would pursue her remedy under 4217 or that under 4218; that the street car company and appellant were not joint tortfeasors, but the record "presents a case where plaintiff having suffered one injury at the hands of two wrongdoers, not jointly liable, is entitled to recover either a penalty of not less than two nor more than $10,000 from one wrongdoer, who alone is liable for that penalty, or actual damages, not to exceed $10,000, from another wrongdoer, who alone is liable for those damages, on account of the wrongful death of her husband. As she has no right to recover both the $10,000 from the street-car company under Section 4217 and the $10,000 damages from Kennedy under Section 4218, it must follow that plaintiff, in such circumstances, is put to her election as to which remedy she will pursue. She did elect to sue the street-car company and to settle the penalty for $6000." Appellant presses the argument that, in any event, there was but one wrong done respondent — the killing of her husband; that the remedy against the street-car company was inconsistent with that against appellant; that respondent "could recover only from one or the other of the defendants." There was no evidence to prove appellant and the street-car company were joint tortfeasors. [Shearman Redfield on Negligence (6 Ed.) sec. 122; 26 R.C.L. p. 763, sec. 13, et seq.] There was evidence appellant was solely responsible. There was evidence both appellant and the street-car company were guilty of negligence which constituted a substantial part of the causal negligence which resulted in the death of Myers. Concurrent negligence gives a cause of action against each participant. [Carr v. Auto Supply Co., 293 Mo. 569.] In such case, as in others, there can be but one satisfaction. There may be judgments obtained against all who are guilty, but one satisfaction completes the remedy. We do not understand appellant to argue that, in this case, the beginning of an action against either appellant or the street-car company constituted an election which barred action against the other; nor that a judgment, merely, against one of the two would have had that effect. He does argue that the remedies given by Sections 4217 and 4218 are so inconsistent that recovery and satisfaction cannot be had under both. This is true — not because the remedies are unlike, but because one satisfaction is all the law allows for a wrong. The ordinary doctrine of election has little or nothing to do with this case. The remedies are not against the same defendant. Respondent had but one remedy against each. She obtained, on the covenant not to sue, nothing which came from appellant. No principle is cited which would have prevented respondent from proceeding to judgment against the street-car company under Section 4217 and against appellant under Section 4218. In that case the collection of one of the judgments would have barred the collection of the other. [Page v. Freeman, 19 Mo. 421; Dulaney v. Buffum, 173 Mo. l.c. 17; 2 Black on Judgments, sec. 782.] It is the satisfaction of the wrong which ends the case. The inconsistency between the remedy given by Section 4217 against the carrier and that given by Section 4218 against appellant has nothing to do with the matter. The remedies are not inconsistent in the sense that incongruous remedies against the same defendant may require an election. They are merely different methods the law has provided whereby, in circumstances like those in this case, if concurrent negligence is proved, a single wrong may be redressed by action against and satisfaction from either of the participants in the negligence. So far as this point is concerned, the fact that one section gives a remedy against one and another section gives a remedy against the other introduces no inconsistency greater than that which exists in any other case in which there exists a liability of two or more for concurrent negligence. Whether the liability of those guilty springs from the same rule of the common law or the same statute or from different rules or statutes, both or all are liable, and what is done by or against either cannot affect the liability of the others unless what is done amounts to satisfaction in fact or by legal implication. "The remedy is the consummation or satisfaction of" the remedial or secondary right which arises when one violates a primary right of another. [Pomeroy on Code Remedies, sec. 348.] "Satisfaction" is full response to the requirements of this right. This whole contention finally gets down to the question whether the transaction which resulted in the covenant not to sue the street car company in consideration of $6000 paid by it to respondent amounted to satisfaction. The words "recovery" and "settled" as used through appellant's argument on the point contain an assumption that there was a settlement of the cause of action in that transaction. The written agreement between respondent and the street car company is, on its face, a covenant not to sue and is expressly confined to that company, and states, in terms, that it "shall not prejudice or affect her" (respondent's) "right to institute and maintain a suit against Thomas Kennedy" and that right "shall remain as though this agreement had not been entered into." As was said in Stachlin v. Hochdoerfer, 235 S.W. (Mo.) l.c. 1062, "a reading of the paper disposing of this suit makes it manifest that it is a covenant not to sue and nothing more." [Edens v. Fletcher, 79 Kan. 139, 19 L.R.A. (N.S.) 618, and note.] It is explicitly so. The decisions cited dealt with a situation which assumed the parties sued were joint tortfeasors. The general rule in such circumstances is in accord with that decision. [23 R.C.L. p. 405, sec. 35 et seq.] The same rule has been applied to cases in which concurrent negligence is shown. This is logical, since the principle in both instances is that but one satisfaction can be had for one injury. [Hubbard v. St. L. M.R. Co., 173 Mo. 249; Gilbert v. Finch, 173 N.Y. 455.] In Lovejoy v. Murray, 3 Wall. 1, cited in Gunther v. Lee, 45 Md. 67, it was said: "When the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages." This is slightly broader than the rule applied in the decision of this court last cited, and there is authority for the rule that payment must come from one who is liable. These differences it is not necessary to discuss in this connection. Access to the decisions is given by some of the previous citations and in State to use of Cox v. Maryland Elec. Ry. Co.,126 Md. 300, L.R.A. 1919A, 270, 273, and note. Since the same principle underlies the rule whether applied to joint tortfeasors or to those severally liable for concurrent negligence, there is no reason to say, in circumstances like those in this case, that an effect logically can be given a release or a covenant not to sue in one which is different from that given it in the other. In both the question is whether there has been a satisfaction, and, generally speaking, the same reasoning applies in both situations to the solution of that question. The rule depends upon thefact that both are liable for the same wrong, and is not changed because their respective liabilities are created by and must be enforced under different rules or sections. The argument that there was one cause of action against the street-car company under one section and another against appellant under another, and that a covenant not to sue one disposes of that liability and therefore of the cause of action, and therefore bars suit against the other, is based upon the fact that the remedy against the street car company was against it, alone, and the remedy against appellant was against him, alone. It is argued from this that since a covenant not to sue the street-car company might be set up in bar of an action against it, that was a bar of the action. That is no more true in this case than it is in any other in which two or more are liable for the same wrong, whatever may be the source of that liability.

With respect to the agreement made with one of those liable upon the liability of the others, the intent governs. That intent, in this case, as shown by the writing executed, was to covenant not to sue. That does not affect the liability of appellant in this case any more than a like covenant with a joint wrongdoer would affect the liability of those jointly liable with him. The testimony of respondent to the effect that she "settled" with the street car company must be taken together with her explanation of the sense in which she used the word, and in connection with the instrument used to consummate the agreement of which she was speaking. There certainly is no conclusive showing of a settlement of the sort appellant contends was made. The court did not err in refusing to direct a verdict.

IV. 1. Instruction One is assailed on the grounds that (a) it submitted to the jury a fact admitted by the petition, and (b) it assumed that the acts of appellant, as set out inInstructions. the instruction, were negligent.

(a) It is argued that the petition "admitted" appellant stopped his automobile and that it was error to submit to the jury the question of fact whether it stopped. A reference to the part of the petition set out in the statement shows that in one of the charges of negligence it is alleged, as a part of respondent's case, that appellant stopped his automobile. On the trial, in his Instruction 2, appellant specifically called for a finding as to the fact of his stopping his automobile. Further, as respondent says, in substance, the gravamen of one charge of negligence that in which the stopping is alleged, is the negligent failure of appellant to warn Myers after he had put him in a position of danger. The stopping of the automobile, if it occurred, was one of the conditions surrounding the parties under the charge just mentioned. The previous paragraph did not rest upon a stopping of the automobile. Further, the general language of the instruction was supplemented by an instruction given for appellant which, as a matter of law, directed the jury to find that appellant's automobile had stopped and was standing still when it was struck by the street car.

(b) The second point made is answered by the instruction, which qualifies the clause attacked by the words "if you so find from the evidence that he was negligent."

2. Instruction 5 reads:

"The court instructs the jury that if you find for the plaintiff under the instructions and evidence in this case you shall assess her damages, if any, at such a sum as you may believe from the evidence will reasonably compensate her for the death of her husband with reference to the necessary pecuniary injury to her resulting therefrom, if any, as shown by the evidence, not exceeding the total sum of ten thousand dollars, and you are further instructed that as the plaintiff has received the sum of six thousand dollars on account of the death of her said husband from the St. Joseph Railway, Light, Heat Power Company, she is only entitled to recover from the defendant in this case whatever difference or balance there may be, if any, between the said six thousand dollars and ten thousand dollars, as you may find from the evidence that she is entitled to recover for the death of her husband with reference to the necessity pecuniary injury to her resulting therefrom, if any, as shown by the evidence, so that whatever amount you may find, if any, added to the sum of six thousand dollars shall not exceed in all the total sum of ten thousand dollars."

It is urged "this instruction assumed that the amount of damages the plaintiff had sustained was at least $6000." Counsel interprets the instruction as telling the jury that respondent "was entitled to recover from appellant whatever difference or balance there might be, if any, between $6000 and $10,000," and says it is, therefore, misleading. The theory of recovery respondent had in mind was that she was entitled to recover, if at all, the excess, if any, of her pecuniary loss over $6000 but not exceeding, when added to the $6000, the sum of $10,000. The instruction required the jury, first, to assess respondent's whole pecuniary loss, not to exceed $10,000; second, the instruction requires the deduction, from the total assessment of the whole loss, of the $6000 she had already received; third, the final recovery is limited again so that whatever amount is allowed, if any, shall not, when added to the $6000, exceed the sum of $10,000. While the instruction might have been made more clear, yet it was not erroneously misleading.

This disposes of the questions raised. The judgment is affirmed. All concur, except Walker, J., absent.