Bucks v. Hamill
| Decision Date | 13 December 1948 |
| Docket Number | 40842 |
| Citation | 216 S.W.2d 423,358 Mo. 617 |
| Parties | Genevieve Bucks, Appellant, v. Dennis R. Hamill, Respondent |
| Court | Missouri Supreme Court |
Rehearing Denied January 7, 1949.
Appeal from Pike Circuit Court; Hon. Theodore Bruere Judge.
Affirmed.
Long & McIlroy, A. W. Schimmel and F. D. Wilkins for appellant Charles E. Rendlen and Albert L. Rendlen of counsel.
(1) Defendant's Instruction E is prejudicially erroneous. The second paragraph thereof is a mere statement of an abstract legal proposition and fails to negative the facts which must be found by the jury in order to acquit defendant of negligence and that under the circumstances defendant was exercising the highest degree of care. The abstract statement does not sufficiently cover the facts, nor did it contain any provision requiring a specific finding by the jury against the issue of defendant's negligence as submitted in plaintiff's principal instruction. It is misleading, confusing and erroneous. State ex rel. Grisham v. Allen, 124 S.W.2d 1080, 344 Mo. 66; Carson v. Evans, 173 S.W.2d 30, 351 Mo. 376; Stanich v. Western Union, 348 Mo. 188, 153 S.W.2d 54; Bootee v. K.C. Public Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Millhouser v. K.C. Pub. Serv. Co., 331 Mo. 933, 55 S.W.2d 673. (2) What is said hereinabove of defendant's Instruction E applies with equal force to Instruction D. Cases under Point (1). (3) The court erred in giving three instructions on burden of proof. These three separate instructions unduly emphasized the jury's duty to the defendant and the law relating to the burden of proof, they were calculated to confuse and mislead the jury and were improper and prejudicially erroneous, and the court abused his discretion in giving these instructions. Carson v. Evans, 173 S.W.2d 30; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Fantroy v. Schirmer, 296 S.W. 235; Boyce v. Donnellan, 168 S.W.2d 121, 237 Mo.App. 63. (4) Instruction A erroneously told the jury the plaintiff must by her evidence (emphasis ours) prove that the defendant was guilty of negligence, etc., . . . and that the evidence to sustain the plaintiff's case must outweigh that for the defendant. Plaintiff was entitled to benefit of any evidence offered by the defendant which tended to support her theory of the case and which was consistent with her own testimony. This instruction denied the plaintiff the favorable evidence that came from defendant's witnesses. Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Barr v. Mo. Pac. R. Co., 30 S.W.2d 927. (5) Instruction G is prejudicially erroneous because there was too much repetition of the matters it attempted to cover, unnecessarily emphasizing the burden of proof that was imposed on plaintiff. The instruction is too much in the nature of a lecture. State ex rel. Powell Bros. Truck Lines v. Hostetter, 137 S.W.2d 461, 345 Mo. 915; Ryan v. Burrow, 326 Mo. 896, 33 S.W.2d 928. (6) Instruction H is a repetition of Instruction G. These three instructions unduly stress burden of proof resting on plaintiff, were prejudicially erroneous and the court abused his discretion in giving same and such error requires a reversal and remanding of this case. Fantroy v. Schirmer, 296 S.W. 235. (7) It was defendant's duty to keep a vigilant lookout both ahead and laterally so as to see anyone on the shoulders of the highway on each side, to make timely discovery of the peril, give timely warning, slacken speed, or turn aside on the first appearance of danger. Wright v. Osborne, 201 S.W.2d 935; Brown v. Toedebush Transfer, Inc., 190 S.W.2d 239, 354 Mo. 611. (8) It was defendant's duty to operate his automobile in such a way, and to have it under such control, as to be able to stop or take any other appropriate measures to prevent running into an automobile ahead of him, or to stop within the distance the object may appear within the range of his vision or lights. Knoxville R. & Light Co. v. Vanglider, 132 Tenn. 487, 178 S.W. 117; Matthews v. Mound City Cab Co., 205 S.W.2d 243; Solomon v. Duncan, 185 S.W. 1141, 194 Mo.App. 517; West Construction Co. v. White, 130 Tenn. 520, 172 S.W. 301; Lanson v. Fond du Lac, 141 Wis. 57, 123 N.W. 629, 25 L.R.A. (N.S.) 40. (9) Warning -- Statute requires motorist to give warning of their approach, when necessary for safety. Secs. 8383, 8387, R.S. 1939; Robinson v. Ross, 47 S.W.2d 122; Miller v. Wilson, 288 S.W. 997. (10) Sounding of horn of approaching automobile not merely gives warning of approach, but also gives warning of danger arising therefrom, and affords opportunities to get out of the way. Gillis v. Singer, 86 S.W.2d 352. (11) Argument of defendant's counsel based upon groundless insinuations that plaintiff and those with her went to "booze joint," meaning to apply that plaintiff was intoxicated, was improper and highly prejudicial. Leaman v. Campbell, etc., 199 S.W.2d 365; Jackman v. St. L. & H. Ry. Co., 200 Mo.App. 268, 206 S.W. 244; Beck v. Q.O. & R.R., 129 Mo.App. 7, 108 S.W. 132; Warren v. Guidici, 9 S.W.2d 541; Ryan v. Sheffield C. & E. Co., 24 S.W.2d 166.
May & May and James D. Clemens for respondent.
(1) Defendant's Instruction E is proper. This instruction is a converse humanitarian instruction, not a sole cause instruction, and as it states a passive defense rather than an affirmative defense, its hypothesized facts need not be specific as is required in a sole cause instruction. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742. (2) The criticized portion of Instruction E was not only harmless, but broadened the issues in favor of plaintiff. It permitted a finding for defendant only if he could not in any way have avoided striking plaintiff. Similar instructions have been held proper. Dean v. Moceri, 87 S.W.2d 218. (3) Defendant's Instruction D is proper. That defendant might have negligently placed himself in a position where he could not see ahead is antecedent negligence, and not a proper issue in a humanitarian case. Stanton v. Jones, 19 S.W.2d 507. (4) The antecedent negligence of a defendant may not even be considered in connection with the humanitarian doctrine. State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. (5) Instruction A cannot be condemned by selecting isolated words therefrom. Rishel v. K.C. Pub. Serv. Co., 129 S.W.2d 851. (6) But the entire instruction must be considered, and as it did not direct a verdict, all instructions must read together. Mueller v. Schein, 352 Mo. 180, 176 S.W.2d 449; Bales v. K.C. Pub. Serv. Co., 40 S.W.2d 665; McDonald v. K.C. Gas Co., 332 Mo. 356, 59 S.W.2d 37. (7) Instruction G was a cautronary instruction on passion and prejudice, both proper as to form. Wolfson v. Cohen, 55 S.W.2d 677; Koebel v. Material Co., 337 Mo. 561, 85 S.W.2d 519; State ex rel. v. Hostetter, 345 Mo. 915, 137 S.W.2d 461. (8) And the giving thereof under the circumstances of the case was proper. Oliver v. Morgan, 73 S.W.2d 993. (9) Instruction H was a cautionary instruction on speculation, both proper as to form. Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158. (10) And the giving thereof under the circumstances of the case was proper. Sharp v. City of Carthage, 319 Mo. 1028, 5 S.W.2d 6; Wolfson v. Cohen, 55 S.W.2d 677. (11) Repetition in instructions is in itself not error, and deference is due the trial court. Ostman v. Ostman, 183 S.W.2d 133. (12) Where one car passes another there is no duty to warn until there is reason for the driver to believe someone is in danger. Anderson v. Voeltz, 206 S.W. 584. (13) As to primary negligence, contributory negligence is a complete defense. State ex rel. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. (14) Argument was proper, but even if erroneous, was cured. Counsel's argument was supported by the evidence and was within the range permitted by law. Goucher v. Woodman Accident Co., 231 Mo.App. 573, 104 S.W.2d 289. (15) The trial court, having sustained plaintiff's objection, is to be given due deference in his ruling. Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Graves v. May Dept. Stores, 153 S.W.2d 778; Huth v. Picotte, 154 S.W.2d 382.
Bradley, C. Dalton and Van Osdol, CC., concur.
Action to recover $ 25,000 for personal injury verdict and judgment for defendant; plaintiff appealed.
Appellant and five other young people, on February 7, 1946, about 12:30 a.m., were driving west on highway 54 from Louisiana, Missouri, to Bowling Green. Donald Lee Swarnes owned the car and was driving. About 4 1/2 miles west of Louisiana he had a blowout in left rear tire according to appellant's case. Donald pulled the car to the right shoulder and all got out. They flagged two eastbound cars for help. The first one was loaded and could not take anyone back to Louisiana for help. In a few minutes thereafter the second eastbound car was flagged down. A soldier and a girl (neither identified) were in this car and it is referred to as the soldier's car. Three of the young people, not including appellant, went over to the soldier's car and were talking to him and the girl. The other three remained about Donald Lee's car. Respondent, his wife and sister, respondent driving, approached from the east in his car, and in passing Donald Lee's car, respondent struck appellant and Donald Lee, and appellant sustained serious and permanent injury. Respondent was on the way from his farm home near Chesterton, Indiana, to Humansville, Missouri, to see his father, who had been injured, and at the time of the accident respondent was driving 50 to 55 miles per hour, or was so driving when he applied his brakes just a moment before the accident.
According to appellant's case Donald Lee's car was entirely off the pavement; the left rear tire down; tail and headlights on; the soldier's car was off the pavement on the...
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