Carson v. Evans

• Decision Date: 06 July 1943
• Docket Number: 38492
• Citation: 173 S.W.2d 30,351 Mo. 376
• Parties: Ruth Carson, Appellant, v. W. F. Evans and Mrs. W. F. Evans
• Court: Missouri Supreme Court

173 S.W.2d 30

351 Mo. 376

Ruth Carson, Appellant, v. W. F. Evans and Mrs. W. F. Evans

No. 38492

Supreme Court of Missouri

July 6, 1943

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

Leo A. Politte, Paul H. Koenig and Walter W. Schiek for appellant.

(1) The court erred in submitting defendant's Instruction 1 for the reason that the said instruction failed to hypothesize facts in evidence. Watts v. Moussette, 337 Mo. 533 85 S.W.2d 487; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Long v. Mild, 149 S.W.2d 853; Stanich v. Western Union Tel. Co., 153 S.W.2d 53. (2) The instruction was erroneous for the reason that it failed to include therein a statement of the law that negligence of the driver of the automobile could not be imputed to the guest. Watts v. Moussette, 337 Mo 533, 85 S.W.2d 487; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527. (3) The court erred in submitting the said instruction for the reason that Instruction 2 combined with Instruction 1, conflicted and gave to the jury a roving commission. Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 745. (4) The instruction was erroneous for the reason that it was not supported by the evidence and hypothesized facts not in evidence. Boland v. St. Louis-San Francisco Ry. Co., 284 S.W. 141; Peppers v. St. Louis-San Francisco Ry. Co., 316 Mo. 1104, 295 S.W. 757; Shields v. Keller, 153 S.W.2d 60. (5) The instruction failed to embrace the entire situation by not advising the jury that the driver's negligence cannot be imputed to the occupant. Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632; Fisher v. Pullman Co., 212 Mo.App. 280, 254 S.W.2d 114; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7. (6) The court erred in giving defendant's Instruction 3 for the reason the same is an erroneous statement of the law as to the burden of proof. Chaar v. McLoon, 304 Mo. l. c. 249, 263 S.W. 174; Barr v. Missouri Pac. R. Co., 37 S.W.2d l. c. 930.

T. P. Hukriede and Wm. Waye, Jr., for respondents.

(1) Instructions Nos. 1 and 2 given by the court below at the request of defendant are not erroneous because they failed to advise the jury that the negligence of John Carson could not be imputed to Ruth Carson, appellant in this case. Such requirements in a solecause instruction are no longer necessary under the laws of this State. Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Long v. Mild, 149 S.W.2d 853; Shields v. Keller, 153 S.W.2d 60; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Seago v. New York Central R. Co., 164 S.W.2d 336. (2) In determining whether instructions 1 and 2, given by the court below at the request of defendant, fail to hypothesize facts in evidence, or whether it is supported by the evidence, depends on the defendant's evidence, and not the plaintiff's evidence. And in passing on said instructions, both of them being sole-cause instructions, the court will look to the evidence most favorable to defendant. Shields v. Keller, 153 S.W.2d 60; Long v. Mild, 149 S.W.2d 853; Branson v. Abernathy Furniture Co., 130 S.W.2d 562; Hopkins v. Highland Dairy Farms Co., 159 S.W.2d 255; Prague v. Kurn, 142 S.W.2d 13. (3) Instruction 1, a sole-cause instruction, given by the court below at the request of defendant, is supported by the evidence in the case and was properly given by the court. This instruction, for the reasons assigned, is not erroneous. Hopkins v. Highland Dairy Farms Co., 159 S.W.2d 255; Knebel v. Poese, 153 S.W.2d 844; Cramer v. Parker, 100 S.W.2d 641; Cases cited under Point (2). (4) Instruction 2 (a sole-cause instruction), given by the court below at the request of defendant, is not erroneous, because (a) it is amply supported by the evidence in the case most favorable to defendant; (b) there is no conflict between instructions 1 and 2, and said instruction is based upon a specific finding and did not give the jury a roving commission. Jones v. Central States Oil Co., 164 S.W.2d 914; Jones v. Missouri Freight Transit Corp., 40 S.W.2d 465; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Cases cited under Point (2). (5) The language employed in Instruction 3, given by the court below at the request of defendant, did not cast upon plaintiff a burden greater than the law requires. It is a proper burden-of-proof instruction, and the court below did not err in the giving of this instruction. Flint v. Loew's St. Louis Realty & Amusement Co., 126 S.W.2d 193; Mendenhall v. Neyer, 149 S.W.2d 366; Stokes v. Godfroy Mfg. Co., 85 S.W.2d 434; Williams v. Guyot, 126 S.W.2d 1137; State ex rel. Banks v. Hostetter, 125 S.W.2d 835; Doherty v. St. Louis Butter Co., 98 S.W.2d 742.

OPINION

Douglas, P. J.

This is an action for damages for personal injuries. Plaintiff, a passenger in her husband's automobile, was injured when it collided with defendants' automobile at the western junction of Highways 50 and 66 in Franklin County. She sued for $ 12,500. She appeals from a judgment for defendants.

The only question plaintiff presents for our review is whether defendants' instructions are proper.

Plaintiff submitted her case both on the humanitarian doctrine and primary negligence. As their defense under the humanitarian doctrine, defendants submitted two sole cause instructions as follows:

"VII.

"The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence the defendant and his agent were free from negligence; that the driver of the automobile in which the plaintiff was riding failed to keep the same under such control as to enable him to readily stop or swerve said automobile upon the appearance of danger so as to avoid the collision as mentioned in the evidence, and if you further find that such failure on the part of such driver, if you find he did fail, was the sole and proximate cause of the collision, then you should find the issues for the defendant."

"VIII.

"The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence the defendant and his agent were free from any negligence; and if you further find that the driver of the car in which plaintiff was a passenger was operating the same without lights directed to the front then the driver of the car in which plaintiff was riding was negligent and if you further find that such negligence, if any, was the sole cause of the collision as mentioned then you should find the issue for the defendant."

Plaintiff objects to these instructions on the ground they fail to hypothesize the facts showing the specific acts of negligence from which the jury would be authorized to find the collision was due to the sole negligence of the driver of the automobile in which plaintiff was riding.

Both instructions are erroneous. An instruction similar to VII was expressly condemned in Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872 because it failed to submit the specific acts of negligence shown by the evidence. Discussing a sole cause instruction which failed to hypothesize the facts in Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, we said: "Since under our jury system, the jury does not have the function of deciding questions of law, the primary purpose of instructions must be to inform the jury, as triers of the facts, what fact issues are to be favorably decided to reach each possible verdict. Mere statements of abstract legal propositions therefore do not make proper jury instructions. Instead each instruction authorizing the finding of a verdict (for plaintiff or for defendant on an affirmative defense) must require the finding of all essential fact issues necessary to establish the legal proposition upon which the right to it is based. Trusty, Constructing and Reviewing Instructions, sec. 2."

The principles expressed in the cases cited apply also to instruction VIII. More particularly apposite, however, is Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60, where an instruction which embodied only part of the facts was held insufficient to authorize the submission of sole cause. Instruction VIII is erroneous for the same reason.

The submission of erroneous instructions ordinarily requires a reversal of the judgment and a retrial. But the question arises in this case whether plaintiff is in a position to complain. Her own instruction submitting the humanitarian doctrine also fails to hypothesize the facts but merely refers to the evidence. It says: "The Court instructs the jury that if you find . . . the automobile of the defendants was being driven under the facts and circumstances mentioned and described in the evidence for and in behalf of the defendants at the time and place described in evidence," etc.

It is the settled rule that an instruction purporting to cover the whole case and authorize a verdict should require the finding of all the facts necessary to sustain the verdict. Negligence being usually a question for the jury, an instruction should set out the facts, supported by the evidence, relied on to show the acts of negligence so the jury may determine whether or not the commission of such acts was negligence. Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Raymond, Missouri Instructions, sec. 5. Accordingly, plaintiff's instruction is erroneous for the reason it fails to hypothesize the facts.

Plaintiff submitted another instruction likewise defective. It starts out with an abstract statement of law in no manner tied to or connected with the balance of the instruction as follows: "The Court instructs the jury that...