Aubuchon v. LaPlant, 53006
| Decision Date | 31 December 1968 |
| Docket Number | No. 53006,No. 2,53006,2 |
| Citation | 435 S.W.2d 648 |
| Parties | Genevieve AUBUCHON, Plaintiff-Appellant, v. John P. LaPLANT, Administrator of the Estate of LeRoy J. LaPlant, Deceased, Defendant-Respondent |
| Court | Missouri Supreme Court |
H. L. C. Weier, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for appellant.
Charles E. Gray, Gray & Friedman, St. Louis, for respondent.
Plaintiff, mother of a deceased unmarried minor, brought a wrongful death action for $25,000 under § 537.080, V.A.M.S, 1 for the benefit of herself and her husband, who did not join in the suit. A jury found for plaintiff and awarded her $5,000 damages. Plaintiff filed a motion for new trial claiming that the verdict was so inadequate as to indicate bias and prejudice on the part of the jury. The trial court overruled the motion and plaintiff appealed. We have jurisdiction because the amount in dispute is $20,000, the difference in the amount of the verdict obtained and the amount claimed by plaintiff. Jack L. Baker Companies, Inc. v. Pasley Manufacturing and Distributing Company, Mo., 413 S.W.2d 268. We affirm.
The evidence disclosed that Drew Aubuchon, the deceased, was 18 years of age at the time of his death. He was an industrious, likeable boy. He started selling newspapers at 10 years of age, and thereafter had a succession of jobs in stores and filling stations. At the time of his death he was working at Alpha Portland Cement Company. He had saved his money and had accumulated $1,095.85 in a savings account at the time of his death. Two of his employers testified as to his ability and willingness to work.
Drew had completed high schoo, where he was an 'A Track' student, had a high I.Q. and had made satisfactory grades. He had attended junior college in the year of his death. He attained the rank of Eagle Scout in Boy Scout work. He lived with his parents, although it was developed in the testimony that at the time of his death he was staying with a brother because of a disagreement with his father and mother about staying out later than midnight.
The jury has an extraordinarily wide discretion in determining the amount of recovery under § 537.090, RSMo 1959, V.A.M.S., in wrongful death cases. Domijan v. Harp, Mo., 340 S.W.2d 728; Combs v. Combs, Mo., 284 S.W.2d 423. Plaintiff recognizes this fact but nevertheless insists that the verdict of $5,000 is so inadequate as to indicate bias and prejudice on the part of the jury. Plaintiff, in attempting to support this assignment, cites cases in which appellate courts of this state have approved verdicts for larger sums for the death of minor children. She says those were cases where the earning power of deceased minor was very similar. This court very possibly might have affirmed a larger verdict in this case, if such had been rendered, but as this court said in Combs v. Combs, Mo., supra, l.c. 427, 'Neither is the fact that the recovery of a larger amount might have been sustained by a trial or an appellate court determinative here.'
The trial court overruled plaintiff's motion for new trial predicated on inadequacy of the verdict, and we consider the evidence and inferences therefrom in the light most favorable to the verdict which the trial court let stand. Glore v. Bone, Mo., 324 S.W.2d 633. The rule here applicable was stated in Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 622, as follows: We find nothing to cause us to hold that the verdict was grossly or shockingly inadequate, and this assignment of plaintiff is overruled.
Plaintiff's other contention is that she should have a new trial for the reason that defendant gave two converse instructions to plaintiff's single verdict directing instruction, contrary to the 'Notes on Use' under MAI 29.02 et seq., that 'Defendant may give only one converse for each verdict directing instruction.'
Plaintiff's sole verdict directing instruction (conforming to MAI 20.01), was Instruction No. 3, which was as follows:
'Your verdict must be for plaintiff if you believe:
'First, plaintiff was the mother of Drew Francis Aubuchon who at the time of his death was single, not the parent of any children and was survived by his parents Genevieve Aubuchon and George Aubuchon, and
'Second, LeRoy J. LaPlant was the driver of an autmobile and Drew Francis Aubuchon was a passenger therein, and
'Third, the automobile left the travelled portion of the highway, and overturned, and
'Fourth, such movement of the automobile was the direct result of LeRoy J. LaPlant's negligence, and
'Fifth, as a direct result of such negligence, Drew Francis Aubuchon died.'
At defendant's request, the court gave a permissible converse instruction, conforming to MAI 29.02(2), as follows:
'Your verdict must be for defendant if you do not believe that LeRoy J. LaPlant was negligent as submitted in Instruction No. 3.'
The court gave the prescribed measure of damage instruction for death of a minor child (MAI 5.03). It was as follows:
'If you find in favor of the plaintiff, then you must award her such sum as you believe will fairly and justly compensate Genevieve Aubuchon and George Aubuchon for the damages which you believe they sustained as a direct result of the death of their child and which can reasonably be measured in money.
'In assessing the damages you may take into consideration any aggravating circumstances attendant upon the fatal injury.'
In addition, defendant tendered and the court gave Instruction No. 7 (MAI 29.02(4)), as follows:
'Your verdict must be for defendant if you do not believe plaintiff sustained damages as a direct result of the negligence of LeRoy J. LaPlant as submitted in Instruction No. 3.'
Plaintiff gave only one verdict directing instruction and it is clear that defendant was entitled to only one converse instruction. Nugent v. Hamilton & Sons, Inc., Mo., 417 S.W.2d 939; Murphy v. Land, Mo., 420 S.W.2d 505, and 'Notes on Use,' MAI 29.02 et seq. Plaintiff asserts that defendant gave two converse instructions, Nos. 5 and 7, conforming to converse instructions MAI 29.02(2) and 29.02(4), thereby committing error which is claimed to be reversible. Defendant's response is that Instruction No. 7 converses only Instruction No. 6, plaintiff's measure of damage instruction, and that the giving of No. 7 did not violate the 'Notes on Use' of MAI or the Nugent or Murphy cases.
Actually, MAI does not contemplate conversing measure of damage instructions. The usual measure of damage instruction is MAI 4.01. No converse thereto is provided. The same is true regarding wrongful death measure of damage instructions which are set out in MAI 5.01 through 5.09. The nearest thing to a converse is MAI 6.01, which permits the jury to consider mitigating circumstances where the evidence justifies, but that actually is not a converse.
An analysis of Instruction No. 7 discloses that it does not really converse Instruction No. 6. Instead, it converses the issue of whether plaintiff sustained damage as a direct result of defendant's negligence. It tells the jury to find for defendant if it does not believe that plaintiff sustained damages as a direct result of negligence of defendant as submitted in Instruction No. 3. This clearly appears to be MAI 29.02(4), which is a converse of causation. However, even if Instruction No. 7 be construed as a converse of damages, as defendant contends, it is clear that it did not converse Instruction No. 6 because the latter did not submit to the jury the issue of whether plaintiff sustained damage. Rather, it starts on the premise of a verdict for plaintiff and is applicable only if and when the jury has decided to find for plaintiff. It tells them how to arrive at the amount of damages if they find in favor of plaintiff.
In personal injury actions arising out of the operation of motor vehicles it is possible for a defendant to converse the issue of whether plaintiff sustained damage. This necessarily is true because the verdict directing instructions in such cases require, as one condition for a plaintiff's verdict, a finding by the jury that plaintiff suffered damage as a direct result of def...
To continue reading
Request your trial
-
Cobb v. State Sec. Ins. Co.
...The jury has an extraordinarily wide discretion in determining the amount of recovery in such wrongful death cases. Aubuchon v. LaPlant, 435 S.W.2d 648, 650 (Mo.1968). The probabilities depend upon the child's age, condition, health, mentality, personality and the parent's ages and circumst......
-
Burrell v. Mayfair-Lennox Hotels, Inc., MAYFAIR-LENNOX
...Gousetis v. Bange, Mo., 425 S.W.2d 91; Koehler v. Schott, Mo.App., 426 S.W.2d 677; Hunter v. Norton, Mo., 412 S.W.2d 163; Aubuchon v. LaPlant, Mo., 435 S.W.2d 648; Higgins v. Gosney, Mo., 435 S.W.2d 653; Strickland v. Barker, Mo., 436 S.W.2d 37; Murphy v. Land, Mo., 420 S.W.2d 505; and Mots......
-
Brittain v. Clark
...was generated by the deviation. Brown v. St. Louis Public Service Company, Mo. (banc), 421 S.W.2d 255, 259(3); Aubuchon v. LaPlant, Mo., 435 S.W.2d 648, 652--653(9); NEWSOM V. CROCKETT, MO.APP., 453 S.W.2D 674, 676--677(1). 3 Specifically, Rule 70.01(e) states that 'Where an MAI must be mod......
-
Ory v. Libersky, 1261
...Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237 (1968); Hoffman v. Rengo Oil Co., 20 Mich.App. 575, 174 N.W.2d 155 (1969); Aubuchon v. LaPlant, 435 S.W.2d 648 (Mo.1968). We would also observe that no request was made by the appellant for a separation by the jury of damages to be awarded to t......