Dickey v. Nations, 34138
| Citation | 479 S.W.2d 208 |
| Decision Date | 28 March 1972 |
| Docket Number | No. 34138,34138 |
| Parties | Gladys DICKEY, Plaintiff-Respondent, v. Charles NATIONS, Defendant-Appellant. . Louis District |
| Court | Missouri Court of Appeals |
Edmund W. Albright, St. Louis, for plaintiff-respondent.
Murphy & Kortenhof, by George A. Adolf, St. Louis, for defendant-appellant.
The two questions presented on this appeal are both to be decided, by stipulation of the parties, on these agreed facts:
Plaintiff's husband picked her up at a physician's office, following her treatment there, and undertook to drive her home in their jointly owned automobile. On the way, he ran a red light at an intersection and collided with an automobile driven by defendant. In this suit for damages for her resultant injuries, plaintiff alleged that defendant was negligent in the operation of his automobile; and there was evidence to support that charge. Defendant pleaded contributory negligence, on the theory that the negligence of plaintiff's husband in running the stop light was 'imputable to plaintiff Gladys Dickey who was the (jointly) titled owner and in joint control of the automobile at the time of the accident.' In line with that theory, the court gave the jury the following instruction:
'Your verdict must be for the Defendant whether or not Defendant was negligent, if you believe:
'Third, such negligence of Plaintiff's driver directly caused or directly contributed to cause any damage Plaintiff may have sustained.'
A verdict for defendant ensued, and it is obvious the instruction invited it.
On at least three occasions prior to the trial of this case, the Missouri courts had held that joint ownership of the family automobile afforded a sufficient basis for imputing the driver-spouse's negligence to the injured passenger-spouse so as to bar her recovery from a concurrently negligent third party. Perrin v. Wells, Mo.App., 22 S.W.2d 863; Roddy v. Francis, Mo.App., 349 S.W.2d 488; Hamilton v. Slover, Mo., 440 S.W.2d 947. Thirty-three days before the trial of this case began, however, in an opinion not published in the Advance Sheets until thirteen days after the trial ended, the Supreme Court repudiated that doctrine and overruled the cases that had previously approved it. Stover v. Patrick, Mo., 459 S.W.2d 393. When that decision was brought to the trial court's attention, plaintiff's motion for new trial was sustained for error in giving the quoted instruction. Defendant appeals.
His first point is that when the Supreme Court overturns a settled rule of substantive law, the effect of its decision ought to be deferred until such time as the bar has had an opportunity to acquaint itself with the new rule, citing Bell v. Pedigo, Mo., 364 S.W.2d 613, 620, where the effect of a decision on a procedural matter was postponed until publication of the opinion in the Advance Sheets. 1 No doubt the Supreme Court has a very considerable discretion in matters of this kind; but it is one thing for them to exercise it and another thing altogether to expect us to exercise it for them. We are bound by the policy approved in Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 85 S.W.2d 519, 524--5, where it was said that when 'former decisions are found to have approved an incorrect rule of general or substantive law, we have, in overruling such former cases, applied the correct rule in the case in which it is announced, and in doing so made it retroactive in effect, and have thereafter applied the correct rule in all cases coming before us, though in doing so it operates retroactively.' This, because the ruling in the earlier cases 'never was the law and the case in hand is decided the same as if such overruled case(s) had never been written.' To the same effect, see Aronson v. Hercules Life Ins. Co., Mo.App., 131 S.W.2d 852, 857. It follows that an instruction submitting a theory of defense that 'never was the law' is erroneous, whether the error was known or not at the time of the submission.
For his second point, defendant argues that even if the joint ownership of the spouses' automobile be disregarded, the instruction was still proper in this case because 'it is quite clear that plaintiff herein was engaged in a joint enterprise...
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