Brittain v. Clark

• Decision Date: 23 December 1970
• Docket Number: No. 8967,8967
• Citation: 462 S.W.2d 153
• Parties: Bettie BRITTAIN, Plaintiff-Appellant, v. Janet CLARK and Ira Pete Bonds, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 153

462 S.W.2d 153

Bettie BRITTAIN, Plaintiff-Appellant, v.Janet CLARK and Ira Pete Bonds, Defendants-Respondents.

No. 8967.

Springfield Court of Appeals, Missouri.

Dec. 23, 1970.

Keathley & Little, Poplar Bluff, for plaintiff-appellant.

Hyde, Purcell & Wilhoit, Poplar Bluff, for defendant-respondent Clark.

Rader & Grimm, Cape Girardeau, for defendant-respondent Bonds.

TITUS, Presiding Judge.

In sustaining defendants' motions for a new trial'on all issues,'the Circuit Court of Butler County specified 'of record'(Rule 78.01) that it was doing so because plaintiff's verdict directing instructions numbered 2 and 3 'are erroneous in that they both deviate substantially, and to prejudice of both the defendants from the forms provided in M.A.I.'Being aggrieved by this deprivation of the $15,000 verdict-judgment that had been returned and entered in her favor, plaintiff appealed and we affirm.¹

The October 1968 casualty in question occurred at nighttime where north-south Highway 51 and east-west Highway 72 intersect at right angles in Bollinger County, Missouri.Plaintiff was a front-seat passenger in a Ford driven north on Highway 51 by defendantJanet Clark; defendantIra Pete Bonds was operating his Mercury westward on Highway 72 when the front of it collided with the right side of the Ford.The paved surfaces of the roads are 18 to 20 feet wide, but at their crossing the two highways 'fan out to one hundred and eighty feet' to form a lozenge-shaped intersection.A stop sign, intended for observance by northbound motorists, was located on the east side of Highway 51 some 130 feet south of Highway 72.In fine, the most favorable evidence to plaintiff disclosed that defendant Clark 'drove straight through the stop sign (and into the intersection) without stopping,' and that although defendant Bonds could have stopped 'within twenty feet * * * (i)f (he) had known (defendant Clark) was coming across,'defendant Bonds did not swerve the Mercury nor apply its brakes to create any skid marks until the Mercury was nine feet shy of the point of impact.

InstructionNo. 2 charged the jury to find for plaintiff and against defendantJanet Clark'if you believe: First, defendantJanet Clark either: failed to stop at the stop sign on Highway 51 at the intersection of Highway 51 and Highway 72, or failed to yield right of way, and Second, defendantJanet Clark's conduct in any one or more of the respects submitted in Paragraph First was negligent, and Third, such negligence directly combined with the acts of defendantIra Pete Bonds to cause damage to plaintiffBettie Brittain.PLAINTIFF MAI--17.02 19.01 Modified.'

InstructionNo. 3 told the jury to find for plaintiff'and against defendantIra Pete Bonds * * * if you believe: First, defendantIra Pete Bonds either: failed to keep a careful lookout, or defendantIra Pete Bonds knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, swerved, slackened his speed, slackened his speed and swerved, and thereby have avoided the accident; but defendantIra Pete Bonds failed to do so, and Second, defendantIra Pete Bonds conduct in any one or more of the respects submitted in Paragraph First, was negligent, and Third, such negligence directly combined with the acts of defendantJanet Clark to cause damage to plaintiff.PlaintiffMAI--17.02, 19.01 Modified.'²

Ere proceeding to specifics, it is well to note pertinent rudiments which necessarily accompany a review of instructions since the advent of MAI.For our purposes here, we consider two categories of instructions.First, there is the applicable instruction to be found in MAI, and second, the almost-applicable instruction in MAI which must be modified in some respect to fairly submit the issues in a given case.The first classification is governed by Rule 70.01(b); the second falls within the jurisdiction of Rule 70.01(e)(Slagle v. Singer, Mo., 419 S.W.2d 9, 13), and in any event '(t)he giving of an instruction in violation of the provisions of (Rule 70.01) shall constitute error, its prejudicial effect to be judicially determined.'Rule 70.01(c).Elaborating on Rule 70.01(b), the courts have repeatedly stated that the system of instructing under MAI is inherently standardized and inflexible, that prejudicial error will be presumed if a change is made to an applicable instruction in MAI, and that the burden will be on the proponent of any modification of an applicable MAI to show that no prejudice 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).³Specifically, Rule 70.01(e) states that 'Where an MAI must be modified to fairly submit the issues in a particular case, * * *, then such modifications * * * shall be simple, brief, impartial, free from argument, and shall not submit to the jury * * * detailed evidentiary facts.'(To the same effect and applicable to all instructions seeRule 70.01(a)).In expounding Rule 70.01(e), proponents of modifications have been amply warned to avoid submission to the jury of detailed evidentiary facts (MAI--1964, p. XXXII;MAI--1969, p. L), and that it is not necessary that conceded or undisputed facts be included in a modified MAI (Young v. Frozen Foods Express, Inc., Mo.App., 444 S.W.2d 35, 40--41(5, 6);Epps v. Ragsdale, Mo.App., 429 S.W.2d 798, 802), for the purpose of instructing under MAI is to submit only ultimate issues--not evidentiary details.Zipp v. Gasen's Drug Stores, Inc., Mo., 449 S.W.2d 612, 617(3);Scheele v. American Bakeries Company, Mo., 427 S.W.2d 361, 366(7).

Re: InstructionNo. 2

As narrated in her brief, it is defendant Clark's position that 'InstructionNo. 2 violates (Rule 70.01(a)) in setting out that 'First, defendant Clark neither: failed to stop at the stop sign on Highway 51 or at the Intersection of Highway 51 and 72.'⁴* * * It would have been simpler for (plaintiff) merely to have recited the mandatory instruction in (MAI) 17.01 that defendant(Clark) failed to obey a traffic signal'⁵ without describing its location.To the contrary, plaintiff argues that MAI 17.01, as it relates to InstructionNo. 2, had to be modified because there is a difference between a traffic signal and a stop sign.Plaintiff asseverates the modification was accomplished in the manner required by Rule 70.01(e), but alternately contends that if we do not agree, the deviation 'is so trivial and inconsequential as not to prejudice any defendant' for the reason that defendant Clark admitted running the stop sign and the additional words complained of were simply descriptive of the location of the stop sign.

There is a real, generally understood and accepted distinction between a 'stop sign' and a 'traffic signal.'Webster's Third New International Dictionary of the English Language Unabridged (and most any other dictionary, for that matter) defines 'stop sign'(p. 2251) as an 'octagonal sign requiring vehicles to stop before entering or crossing a thoroughfare;' a 'traffic signal'(p. 2423) is said to be an 'electrically operated signal (as a system of colored lights) for warning and controlling traffic.'Employment of the term 'traffic controls' in Notes on Use under MAI 14.02 and 14.03(both editions), indicates the composers and adopters of MAI were aware that motorists are supposedly controlled by and observant of devices other than traffic signals, and there are numerous statutory provisions to illustrate that a stop sign and a traffic signal are not considered to be one and the same thing.⁶Although the courts, abetted by MAI and its associated rules, moil toward the unlikely accomplishment of reducing the instruction loquacity of judges and lawyers, we presently know of no tribunal intent upon penalizing a party with sapience sufficient to emend a MAI form in order to endow an object with its correct and proper appellation.Cf.Jurgeson v. Romine, Mo.App., 442 S.W.2d 176, 178(5).

The existence of the stop sign was not disputed; neither was it questioned that the stop sign was located 'on Highway 51 at the intersection of Highway 51 and Highway 72.'Consequently, there was no call to hypothesize such facts in InstructionNo. 2.Gottlieb v. Hyken, Mo., 448 S.W.2d 617, 620(2).Moreover, there was the circumstance that the stop sign was positioned 130 feet south of the crossing of the normally traveled portion of the two highways.Defendant Bonds complicated the situation by testifying he was familiar with the accident scene and that northbound motorists on Highway 51 ordinarily did not stop where the sign was situate 'but they all roll up there to the cross road' because it wouldn't do 'any good to stop back there.'These factors illustrate how erroneously complicated an instruction could become in a try at fully reciting all of the elements attending this particular stop sign, and how it may be logically argued that an instruction omitting some of this maze of facts, while recasting only a part thereof, would be unfair and argumentative.The entire problem points to the soundness of the theory underlying the MAI method of instructions, i.e., only ultimate facts completely shorn of evidentiary details should be submitted to the jury.Albeit that we cannot bring ourselves to say it is error to call a stop sign a stop sign, an unnecessary undertaking to describe the location of the stop sign when that was not a determinative issue, exceeded the bounds of Rule 70.01(e) by submitting detailed evidentiary facts.Furthermore, it could be said that reference to the sign's position may have unduly emphasized one element of defendant Clark's duties.Cf.Silvey v. Missouri Pacific Railroad Company, Mo., 445 S.W.2d 354, 362.We are indubitably tied to the aphoristic principle that an appellate...