Allen v. Andrews

• Decision Date: 13 May 1980
• Docket Number: No. 10775,10775
• Citation: 599 S.W.2d 262
• Parties: Gladys I. ALLEN, Plaintiff-Respondent, v. David P. ANDREWS, Defendant-Appellant, and James P. Andrews, Defendant.
• Court: Missouri Court of Appeals

Page 262

599 S.W.2d 262

Gladys I. ALLEN, Plaintiff-Respondent, v. David P. ANDREWS, Defendant-Appellant, and James P. Andrews Defendant.

No. 10775.

Missouri Court of Appeals, Southern District, Division Two.

May 13, 1980.

David W. Bernhardt, Robert W. Ewing, Bussell, Hough, Bernhardt, Leighton & O'Neal, Springfield, for defendant-appellant.

Charles C. Shafer, Jr., Kansas City., for plaintiff-respondent.

HOGAN, Judge.

This action for damages arose out of a three-car collision. The jury returned an ambiguous verdict. The trial court granted a new trial upon the ground that the verdict was not responsive, and upon the further ground that the volunteered statement of a witness had been prejudicial to the plaintiff. The defendant appeals.

The casualty occurred during the evening rush hour on Glenstone, a thoroughfare which runs north and south in the east part of Springfield, Missouri. Plaintiff was the driver of the lead car. She was driving south in the east (inside) southbound lane. There was a second vehicle immediately behind the plaintiff and defendant David Andrews ¹ was driving the third car. Plaintiff came to a stop because a vehicle ahead of her was "signaling to make a left turn" into an intersecting street. The stop was a "complete stop." The second vehicle, according to the plaintiff, also came to a full stop without striking plaintiff's car. Defendant thereupon struck the second vehicle from the rear, causing the second vehicle to strike plaintiff's automobile. Plaintiff averred that she sustained personal injuries.

The plaintiff undertook to prove her case by calling defendant as a witness. Defendant testified the accident occurred between 5:30 and 6 p. m., "during the rush hour (while traffic was) bumper-to-bumper." It was "beginning to get dark" but defendant had no difficulty seeing the second vehicle, which was immediately in front of him. Defendant "became aware" of the second vehicle when its driver slackened his speed north of the place where the accident happened. Defendant did not keep the second vehicle constantly in sight; his wife, who was three months pregnant, "groaned" and defendant turned aside to see if she was ill. Defendant "believe(d) (he was then) 15 or 20 feet" to the rear of the second vehicle, going "(a)bout 15 or 20 miles an hour, I'd say." When defendant "glanced back" he saw the second vehicle coming to a sudden stop, tried to set his brakes, was unsuccessful and struck the second vehicle. There was apparently, no extensive damage to the plaintiff's vehicle nor the second automobile. Defendant's vehicle had to be towed from the place of collision because the radiator had been damaged.

Three questions are presented in this court. They are:

1. Did the plaintiff make a submissible case upon failure to keep and maintain a careful lookout?

2. Did the trial court err in failing to construe the ambiguous verdict as a verdict for the defendant?

3. Did the trial court err in granting a new trial because of the volunteered statement of a medical witness?

We have concluded that the first question is so inadequately briefed that we cannot review it without becoming an advocate for the defendant; the second question need not be resolved, and the third question should be answered negatively.

The submissibility question has been relegated to the end of the brief; the defendant has relied on a single citation of authority, and has omitted all references to the parts of the transcript which demonstrate the missing element or elements of plaintiff's case. It is not our purpose and we do not mean to hector the able and industrious attorneys who represent the defendant, and we agree that our appellate courts are awash in rules, but in candor, the defendant has simply invited us to become his advocate, search the transcript, consider the reasonable inferences and determine whether or not the plaintiff established a breach of legal duty.

We call attention to the importance of developing the submissibility argument carefully, if it is to be presented. When the point is fairly raised and developed on appeal by an aggrieved defendant, the submissibility of the plaintiff's case must be considered and ruled before the other assignments of error are examined. If a plaintiff has no case to submit, trial error is immaterial. Osborn v. McBride, 400 S.W.2d 185, 188(1) (Mo.1966); Walker v. Niemeyer, 386 S.W.2d 87, 92(3) (Mo.1965); Howard v. Johnoff Restaurant Company, 312 S.W.2d 55, 56(1) (Mo.1958); O'Dell v. Dean, 356 Mo. 861, 863, 204 S.W.2d 248, 249(1) (1947).

This is not to say we have ignored defendant's point. Plaintiff's verdict-director, Instruction No. 2, alternatively submitted failure to keep a careful lookout, MAI 17.05, and failure to act after danger of collision became apparent. MAI 17.04. Numerous breaches of duty were submitted, but defendant calls attention only to the lookout submission. Defendant's contention is not that some of the breaches of duty submitted were not supported by the evidence; it is that plaintiff made no submissible case upon failure to keep a careful lookout.

The basic submission of a "lookout" instruction is the failure to see and take some action. Lovelace v. Reed, 486 S.W.2d 417, 418-419(1-3) (Mo.1972). We agree that the lookout submission presupposes the time and means to take effective precautionary action, Heberer v. Duncan, 449 S.W.2d 561, 563(3) (Mo. banc 1970), but defendant's duty was more comprehensive than he seems to believe it was. The "lookout" duty requires motorists to exercise the highest degree of care to discover the presence of other persons and objects upon the streets and highways and to become aware of dangerous situations and conditions. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 771(2) (Mo.1965); Rakestraw v. Norris, 478 S.W.2d 409, 419(19) (Mo.App.1972). The defendant's own testimony was that he was driving in "bumper-to-bumper" traffic during the rush hour, and that he acquired knowledge of the second vehicle "50 to 100 feet before (the collision)." At that point the second automobile had slowed very suddenly to "five to ten miles an hour" and had then proceeded. While our holding is wholly ex gratia, we think a jury could have inferred that defendant had, or should have had, knowledge of erratic traffic movement and potential danger ahead for an appreciable time before he glanced aside and could have acted in some manner to avoid the collision.

The principal issue upon trial was whether plaintiff had sustained any injuries as a result of the casualty in issue, and evidence was admitted tending to show she had received a "settlement" from a casualty carrier designed to compensate her for another, different accident in which she was involved. We are inclined to believe the evidence was competent on the issue of the causal connection between plaintiff's disability and the collision in which defendant was involved, Jackson v. Thompson, 358 Mo. 1001, 1003-1004, 218 S.W.2d 97, 98-99(1) (1949), and plaintiff offered no limiting instruction. However, money was not paid by a codefendant, was not received as compensation for whatever injuries, if any, plaintiff received on November 7, 1973, and plaintiff's verdict-director included no deduction clause. See MAI 7.01. In this state of evidentiary and instructional confusion, the jury returned the following verdict:

"We, the jury, find the issues in favor of the plaintiff, and assess plaintiff's damages at $-0-."

The trial court, relying on this court's ruling in Boone v. Richardson, 388 S.W.2d 68, 76 (Mo.App.1965), granted a new trial on the ground that the jury's...