Anderson v. Cahill

• Citation: 528 S.W.2d 742
• Decision Date: 08 September 1975
• Docket Number: No. 58909,58909
• Parties: Johny ANDERSON, a minor, by his mother and next friend, Rosemary Anderson, Plaintiff-Appellant, v. David F. CAHILL, d/b/a D. F. Cahill Construction Company, Defendant-Respondent.
• Court: United States State Supreme Court of Missouri

Page 742

528 S.W.2d 742

Johny ANDERSON, a minor, by his mother and next friend, Rosemary Anderson, Plaintiff-Appellant, v. David F. CAHILL, d/b/a D. F. Cahill Construction Company,

Defendant-Respondent.

No. 58909.

Supreme Court of Missouri, En Banc.

Sept. 8, 1975.

Rehearing Denied Oct. 13, 1975.

Barbieri, Combs & Gotschall, Roger J. Barbieri, Commodore M. Combs, Jr., Kansas City, for plaintiff-appellant.

Shook, Hardy & Bacon, David H. Clark, Robert E. Northrip, Kansas City, for defendant-respondent.

HENLEY, Judge.

This is an action for damages for personal injuries received by a child when he fell into a construction excavation. Verdict and judgment were for defendant and plaintiff appealed to the Court of Appeals, Kansas City district. ¹ That court affirmed the judgment and, on application of plaintiff, we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Mo.Const. Art, V, § 10. We reverse and remand for error in the giving of two instructions.

Plaintiff was four years, ten months of age on the date of his injury. The excavation into which he fell was in a residential area of Independence, Missouri, on the grounds of St. Mary's Church adjoining Liberty street on the east. Located on these grounds were the church building, the rectory south of the church, both of which faced Liberty street or west; the high school and gymnasium buildings behind or east of the church and rectory; and a secondary school building on the north side of the church which extends east from Liberty back toward the gymnasium. Defendant, in the process of building an addition to the back of the church building, excavated an area approximately 10 feet deep for a large basement and then poured the concrete footings and foundation walls for the addition, leaving an open area or hold of approximately two feet between the east side of the excavation and the foundation wall. Plaintiff and his two sisters, ages 6 and 7, were enroute to a neighborhood grocery store for their mother on a Saturday afternoon when they strayed from their errand onto the construction site. Their home was approximately a half-block from the driveway adjoining the south side of the rectory. Plaintiff was seen to fall headfirst into the open area described above at a point a few feet north of the excavation's south edge. The witness, Mr. Virgil Julian, standing some distance farther north looking west, first became aware of the child when he saw him fall; he immediately jumped into the hole and rescued him.

Mrs. Virgil Julian testified that while in the car waiting for her husband to return, she saw two little girls paying in a sand pile inside the large excavation. She saw a little boy join the two girls and watched them play in the sand pile. Later, she saw her husband come out of the area between the concrete foundation wall and the side of the excavation carrying the plaintiff.

Defendant had erected a snow fence as a barrier in all openings leading from the street and the buildings to the construction area, but had failed to bar one avenue of access: a narrow strip (said to be 2--3 feet wide) behind the rectory and between a construction shed and the high school building leading north from an unbarred driveway on the south side of the rectory directly to the construction area and the excavation.

Plaintiff's first point is that the court erred in giving instruction No. 4, defendant's converse of plaintiff's verdict directing instruction No. 3, for the reasons stated below. Instruction No. 3 reads:

'Your verdict must be for the plaintiff if you believe:

First, defendant maintained an open excavated area, and

Second, defendant knew or should have known that young children would be likely to trespass, and

Third, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and

Fourth, defendant failed to prevent plaintiff from being exposed to such harm, and

Fifth, defendant was thereby negligent, and

Sixth, as a direct result of such negligence plaintiff was damaged.

The term 'negligence' as used in these instructions means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.'

Instruction No. 4 reads:

'your verdict must be for the defendant unless you believe:

First, defendant knew or should have known that young children would be likely to trespass, and

Second, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and

Third, defendant was negligent as submitted in Instruction Number 3, and

Fourth, as a direct result of such negligence plaintiff was damaged.'

Plaintiff contends that instruction 4 violated both the letter and the spirit of MAI ² and MAI 33.01 in that (1) it 'was not a true converse but consitituted two converse instructions within one * * *'; (2) it 'deviated from MAI 33.06(6) which did not need modification * * *'; and (3) it 'conversed only two elements of Instruction * * * (3), and failed to use any connecting words to identify the two elements upon which the jury could return its verdict for defendant, and hence constituted a roving commission for omission of what ultimate facts constituted negligence.'

Instruction 3 submits and requires a finding of the elements of plaintiff's theory of his right to recover in this case based on § 339, Restatement of the Law, Torts, First (1934). Anderson v. Cahill, supra, 485 S.W.2d at 77--78, and cases there cited. There is no applicable instruction in MAI and the numbered paragraphs of this instruction are said to have been patterned after MAI 22.01, the attractive nuisance verdict director, with modifications necessary to conform to § 339, supra.

Instruction 4, said to be patterned after MAI 33.06(6), ³ converses not only the facts on which negligence is predicated, it also converses negligence generally. As we understand plaintiff's position, it is that defendant is entitled to one instruction conversing the facts on which negligence is predicated ⁴ or one conversing negligence, ⁵ but not one instruction conversing both.

Plaintiff relies heavily on Murphy v. Land, 420 S.W.2d 505, 507(1) (Mo.1967), ⁶ a humanitarian negligence case in which two converse instructions were given, one (MAI 29.06(6), first edition; now 33.06(6)) conversing the several elements of the humanitarian submission and the other (MAI 29.04(1), first edition; now 33.04(1)) conversing all negligence generally. The court held that the giving of these two instructions violated both the spirit and positive direction of MAI that only one converse be given for each verdict directing instruction, and was error. From this, plaintiff argues that the giving of one instruction which converses in combination both the 'facts on which negligence is predicated' and 'negligence' also violates the spirit and direction of MAI that only one converse be given.

In Young v. Grotsky, 459 S.W.2d 306, 308(1, 2) (Mo.1970) the court said: 'MAI makes it clear that * * * there may be included in the one permitted converse instruction more than one proposition, provided only that the propositions conversed are submitted in the verdict directing instruction. * * * The reference in 'Notes on Use' that a defendant may give 'only one converse' for each verdict directing instruction means 'only one converse' instruction.'

Instruction 3, the verdict directing instruction to which instruction 4 was directed, required a finding of not only the 'facts' submitted in paragraphs 'First' through 'Fourth,' but also that defendant was thereby 'negligent.' The propositions conversed are submitted in the verdict directing instruction and combining them in the one converse instruction does not violate the proscription of MAI that only one converse instruction be given. Compare Brewer v. Swift & Company, 451 S.W.2d 131, 133(1) (Mo. banc 1970), in which the court held that the giving of an instruction conversing negligence was reversible error where the verdict directing instruction given did not require a finding of negligence, because (1) it allowed the jury to return a verdict for defendant upon finding a proposition not submitted by plaintiff, and (2) it did not comply with the requirement that the converse be in substantially the same language as the verdict director.

Plaintiff's argument that the giving of instruction 4 was error because it 'deviated from MAI 33.06(6) which did not need modification' is without merit. It did deviate, considerably. But, if it was error to give instruction 4 it was not error for this reason. MAI 33.06(6), upon which instruction 4 is said to have been patterned, is, as previously noted in footnote 3, an instruction to be used in conversing elements of a humanitarian submission. Plaintiff's theory of recovery obviously was not based on the humanitarian doctrine; hence, MAI 33.06(6), if properly used as a pattern, could not have been used without modification. It would have been error to use it as a converse instruction in this case without modification.

Plaintiff's argument that instruction 4 gave the jury 'a roving commission' to find for defendant, because it did not converse all but conversed only two of the numbered paragraphs of instruction 3 is also without merit. Defendant was not required to converse in instruction 4 all of the parts of plaintiff's verdict director or any particular part of it. A defendant may converse any one or more of the elements essential to plaintiff's case. Lietz v. Snyder Manufacturing Co., 475 S.W.2d 105, 109(6) (Mo.1972); Rule 70.01(f); ⁷ MAI 33.01, supra.

However, it is difficult to determine to which elements of plaintiff's case the converse instruction is directed. It appears at first to be directed only at paragraphs 'Second' and 'Third' of plai...