Brewer v. Rowe, 42815

• Citation: 252 S.W.2d 372,363 Mo. 592
• Decision Date: 10 November 1952
• Docket Number: No. 42815,42815
• Parties: BREWER et ux. v. ROWE.
• Court: United States State Supreme Court of Missouri

Page 372

252 S.W.2d 372

363 Mo. 592

BREWER et ux. v. ROWE.

No. 42815.

Supreme Court of Missouri, en Banc.

Nov. 10, 1952.

Harold F. Hecker, St. Louis, Jenny & Cole, Union, Seiler, Blanchard & Van Fleet, Joplin, for appellants.

Moser, Marsalek, Carpenter, Cleary & Carter and Julian C. Jaeckal, St. Louis Russell J. Horsefield, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondents.

PER CURIAM.

The following portion of an opinion prepared by one of the commissioners is adopted as a part of this per curiam opinion:

'Plaintiffs sued for damages for the death of their son, allegedly caused by defendant's negligence. Section 537.080 RSMo 1949, V.A.M.S. Defendant denied negligence, alleged contributory negligence and counterclaimed. Plaintiffs had a verdict and judgment for $15,000 and against defendant on his counterclaim. Defendant was granted a new trial on the ground that plaintiffs' Instruction No. 6 was erroneous. Plaintiffs appealed.

'Larry K. Brewer, plaintiff's son, was buried on his eleventh birthday. He was a normal boy. He had just graduated from the fifth grade. He made excellent grades in school, being one of the three or four 'top' members in a class of between thirty-five and forty. He was in good health, was physically strong, was an excellent swimmer and tennis player and was active in other sports. He played a violin in the school orchestra. He was likeable and made friends rapidly. He was a church member and attended church and Sunday School regularly. He was a Cub Scout. He was mechanically inclined. He earned money by cutting lawns and running errands for the neighbors. At the time of his death, his billfold contained about $3 which he had earned.

'Larry died within an hour after sustaining injuries in a collision between the parties' automobiles. The collision occurred about 12:30, p. m., June 2, 1950, on U. S. Route 66, about 1 1/2 miles west of Bourbon, Missouri. Defendant was driving west. Mrs. Brewer was driving east, and Larry was sitting beside her in the front seat. There was a 'drizzling rain'. The pavement, hard-surfaced with marked centerline, was wet. According to plaintiffs' evidence, the site was a sharp, unbanked curve (to Mrs. Brewer's left and to defendant's right) and the collision occurred on the east end of the curve. Mrs. Brewer so testified. So did plaintiffs' witness Tindell, who was driving a truck westwardly and saw the collision immediately before he reached the east end of the curve.

'Mrs. Brewer first noticed defendant's car when it was about 200 feet distant; it was on 'its own side' and she observed nothing unusual about its movements; it was going faster than she was (apparently she was going about 30 m. p. h.) but she did not know how much faster; then, as she was nearing the end of the curve, she noticed that defendant 'was drifting to my side of the road'; she put on her brakes 'with all my strength' and felt the right rear wheel go off the right edge of the pavement and onto the shoulder; at that time, defendant's car was two or three car lengths away and 'it was coming towards me, but it tried to get over on the other [defendant's right] side of the road', and 'he hit the front side of my car, the front right'; the collision was 'way over' on her side; her right rear wheel was still off the pavement; at the time of the impact, no part of her car was left of the centerline--it was 'just sort of on an angle'--and she had almost stopped.

'Defendant's evidence was that the collision occurred on the 'straight highway' east of the curve and on his side of the highway. Defendant testified that: he was driving 40 to 45 m. p. h.; he first saw the Brewer car when it was about a half mile away (100 feet, in his deposition), but paid no particular attention to it until he noticed that its right wheels were off the pavement and 'throwing water and mud'; then the other car 'was coming at me broadside * * * it had turned around in some manner, flipped around; I just happened to see it coming toward the front of my automobile; there was no time to put on brakes or anything else, and I immediately pulled my car to the right, my right, towards the north shoulder'; to the best of his knowledge, he never crossed the centerline; and the other car was on his side of the road when it stopped.

'Plaintiffs' Instruction No. 6 (for the giving of which the trial court granted a new trial) was: 'The court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence plaintiff Ella C. Brewer was driving an automobile eastwardly over and along Highway 66 in Crawford County, Missouri, and that defendant I. L. Rowe was operating an automobile westwardly over and along said highway, and that the automobile being driven by plaintiff Ella C. Brewer and the automobile being driven by defendant I. L. Rowe collided; and that at the time of and immediately prior to said collision, if such you find there was, defendant I. L. Rowe negligently drove and operated the automobile which he was at that time driving around a curve in said highway at an excessive, high and dangerous rate of speed under the cricumstances then and there existing, and that said negligence of the said I. L. Rowe, if you find he was so negligent, directly contributed to cause the collision mentioned in evidence and his injury and damage, if any, then, if you so find, defendant I. L. Rowe is not entitled to recover of plaintiffs on his counterclaim and your verdict will be in favor of plaintiffs and against defendant I. L. Rowe on his counterclaim.'

'We do not agree that the instruction assumes that defendant 'was driving his car around a curve instead of requiring a finding by the jury on that issue.' The reasonable construction is that the instruction requires a finding that 'defendant negligently drove and operated his automobile around a curve in said highway at an excessive, high and dangerous rate of speed under the circumstances then and there existing.' The clause which we have italicized assumes only the undisputed fact that defendant was driving his car--not that he was driving it on a curve. Contrast Hengelsberg v. Cushing, Mo.App., 51 S.W.2d 187, cited by defendant, wherein the instruction clearly assumed the automobile's position on the highway.

'Defendant next contends that Instruction No. 6 was erroneous in that it failed to hypothesize facts as to 'excessive, high and dangerous rate of speed * * * under the circumstances,' citing Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, and other cases. Defendant also asserts that Instruction No. 1 is reversibly erroneous in that it submitted excessive speed as a predicate to liability in the same language as Instruction No. 6. Plaintiffs counter thus: Any error in Instruction No. 6 was harmless as the verdict was obviously returned under Instruction No. 1, the only instruction authorizing a plaintiffs' verdict on both their claim and defendant's counterclaim.

'In this case there was no material conflict in the evidence concerning the speed of defendant's automobile nor as to the circumstances under which it was being operated, but the evidence was conflicting as to whether the collision occurred on the 'straight highway' or on a curve and as to whether it occurred on Mrs. Brewer's side of the highway or on defendant's side. In view of the evidence, defendant contends, excessive speed could not have been a proximate cause of the collision and that there was no submissible issue of negligent speed.

'Instruction No. 1 submitted defendant's failure to observe plaintiffs' car, and his failure to keep to the right side (and driving on the left side) of the highway, and his operation of his car at a high and dangerous rate of speed under the circumstances then and there existing, and 'that by reason of all the foregoing', etc. Clearly, this submission was in the conjunctive. Since there was a conjunctive submission of speed and failure to keep to the right side (and driving on the left side) of the highway, the fact that the submission as to speed may have been improper (which we do not rule) is not ground for a new trial. Corley v. Kroger Grocery & Baking Co., 335 Mo. 4, 193 S.W.2d 897, 900. We rule that Instruction No. 1 was not erroneous.

'Instruction No. 6 did not authorize a plaintiffs' verdict on their claim. And it authorized a plaintiffs' verdict on defendant's counterclaim only if defendant was contributorily negligent in operating his car 'around a curve in said highway at an excessive, high and dangerous rate of speed under the circumstances then and there existing.' Other plaintiffs' instructions similarly authorized a plaintiffs' verdict on defendant's counterclaim if defendant was contributorily negligent in failing to keep to the right and in driving on the left side of the highway. But Instruction No. 1 (the only instruction authorizing a verdict for plaintiffs, both on their claim and defendant's counterclaim) required the jury to find that defendant was negligent in respects additional to operating at an excessive speed, viz., failure to observe plaintiffs' car and failure to keep to the right. Thus, the jury found that these other acts or omissions constituted primary negligence as to plaintiffs' claim and contributory negligence as to defendant's counterclaim. The findings the jury were required to make under Instruction No. 1 necessarily precluded them from finding for defendant on his counterclaim under Instruction No. 6. In other words, the jury's finding that all of defendant's acts or omissions as submitted in Instruction No. 1 were negligent, constituted a finding of defendant's contributory negligence on his counterclaim as to these same acts or omissions conjunctively submitted in Instruction No. 1. See Hoefel v. Hammel, Mo.App., 228 S.W.2d 402, 405. Hence, any error in Instruction No. 6 was harmless.

'Such conclusion renders unnecessary a determination of...