Foote v. Thompson

• Decision Date: 04 October 1966
• Docket Number: No. 24411,24411
• Citation: 407 S.W.2d 637
• Parties: John W. FOOTE, Respondent, v. Betty J. THOMPSON, Appellant.
• Court: Missouri Court of Appeals

Page 637

407 S.W.2d 637

John W. FOOTE, Respondent, v. Betty J. THOMPSON, Appellant.

No. 24411.

Kansas City Court of Appeals, Missouri.

Oct. 4, 1966.

Joseph A. Sherman, Deacy & Deacy, Kansas City, for appellant.

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for respondent.

BLAIR, Judge.

A collision in the intersection of Guinotte Street and Park Avenue, in Kansas City, between and International truck operated by plaintiff, John W. Foote, and a Chevrolet automobile operated by defendant, Betty J. Thompson, gave rise to an action by plaintiff against defendant for personal injuries. Plaintiff submitted his case to the jury on humanitarian negligence and was awarded a verdict and judgment for $2,000.00. Defendant's motion for a new trial was overruled and she appeals. The rulings we now proceed to make will disclose that the questions presented by this appeal require no recital of the circumstances attending the collision or of any act or omission of either party which may have been responsible for it.

At plaintiff's request, the trial court gave the jury the following instruction:

'INSTRUCTION NO. 3

Your verdict must be for the plaintiff, whether or not plaintiff was negligent, if you believe:

FIRST, plaintiff was in a position of imminent danger of being injured and was injured; and,

SECOND, defendant, by using the highest degree of care should have known of such position of imminent danger; and,

THIRD, at the moment when defendant first could have known of such position of imminent danger, defendant still had enough time so that by using the means available to defendant and with reasonable safety to defendant and all others, and by using the highest degree of care, defendant could have avoided injury to the plaintiff by either slackening her speed and swerving or stopping; and,

FOURTH, defendant negligently failed to so slacken defendant's speed and swerve, or stop; and,

FIFTH, plaintiff's damage directly resulted therefrom.' (Emphasis supplied.)

The challenges to this instruction are two in number. The first is that the instruction, instead of employing the emphasized words 'position of imminent danger', should have employed the words 'position of immediate danger'. Defendant argues that to this extent the instruction departs from MAI No. 17.15, applicable to plaintiff's case, in violation of Civil Rule 70.01(b)(c), V.A.M.R., which is as follows:

'(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.

'(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.'

MAI Instruction No. 17.15 does indeed employ the words 'position of immediate danger' and plaintiff's Instruction No. 3, employing instead the words 'position of imminent danger', does differ from it but only in this single respect. Our duty then is to determine whether the employment in plaintiff's Instruction No. 3 of the words 'position of imminent danger', rather than the words 'position of immediate danger', even though this is error by force of Civil Rule 70.01(b)(c), was actually error prejudicial to the substantial rights of defendant. Civil Rule 70.01(c), declaring the 'giving of an instruction in violation of the provisions of this rule shall constitute error' is not intended to be an arbitrary and inflexible command to courts to pronounce every violation departing from applicable MAI instructions reversible error. Such a construction would obviously lead to absurd results so easily imaginable that it is needless for us to develop or multiply any of them. The violation must be prejudicial. Is the violation here prejudicial?

Long ago our appellate courts began defining 'imminent' danger or peril as 'immediate' danger or peril when employed in negligence instructions. 32 Mo.Digest, Words and Phrases, pp. 300, 302, and decisions cited. Both words have always been held to be ordinary English words whose meaning is accurately and easily understood by juries of ordinarily intelligent laymen 'without further definition'. Newman v. St. Louis Public Service Co., Mo., 244 S.W.2d 45, 48; Wilkerson v. Smith Mo.App., 366 S.W.2d 511, 514; Welch v. McNeely, Mo., 269 S.W.2d 871, 876; Lafferty v. Wattle, Mo.App. 349 S.W.2d 519, 529; Henrickson v. Resnik, Mo.App., 390 S.W.2d 610, 618. Invariably our appellate courts have declared the words 'imminent' and 'immediate' to be synonymous words. Teague v. Plaza Express Co., 356 Mo. 1186 205 S.W.2d 563, 566; Loyd v. Moore, Mo.App., 390 S.W.2d 951, 955; Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947; Burks v. Wilson, Mo.App., 356 S.W.2d 121, 128; Vol. 22 Mo.Digest, Negligence, k83.6. Our appellate courts still do. Calvert v. Super Propane Corporation, Mo. (1966) 400 S.W.2d 133, 140.

Holding in view the identical meaning ascribed to these words by our appellate courts, we cannot possibly rule that the substitution in plaintiff's Instruction No. 3 of the word 'imminent' for its legally identical twin 'immediate' prejudiced the defendant by any measure. This challenge to this instruction is without merit.

The second challenge to plaintiff's Instruction No. 3 is that it was 'further erroneous in that it was in direct conflict with the defendant's Instruction No. 7, which follows the approved form of converse instructions found in MAI 29.06(6), and utilizes the phrase 'position of immediate danger'. Thus, the two instructions submitted two different places of danger to be considered by the jury in determining liability'. In view of our ruling on the first challenge, we must rule that the plaintiff's Instruction No. 3 and defendant's Instruction No. 7, although one used the word 'imminent' and the other the word 'immediate', submitted the same place of danger to be considered by the jury in determining liability and not different places. Dixon v. General Grocery Company, Mo., 293 S.W.2d 415, 421, cited by defendant, is of no relevance to what we are presently deciding. We have considered all authorities adduced by defendant. None persuades. Independent research develops nothing to support her. The second challenge is without merit.

Plaintiff's Instruction No. 4 is also the subject of two challenges. It reads as follows:

'INSTRUCTION NO. 4

If you find the issues in favor of the Plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any injuries and damages you believe the plaintiff sustained and is reasonably certain to sustain in the future, as a direct result of the occurrence mentioned in the evidence.' (Emphasis supplied).

The first challenge is that Instruction No. 4 is erroneous due to the addition of the emphasized words 'injuries and' which are not included in MAI No. 4.01 prescribed for use in actions for personal injuries and property damage. It is true that applicable MAI No. 4.01 employs only the word 'damages' and not the emphasized words and to this extent plaintiff's Instruction No. 4 violates Civil Rule 70.01(b)(c) supra, and is erroneous. As we have noticed, however, this error, standing alone, is not justification for reversal unless it prejudicially affected the substantial rights of the defendant.

The only suggestions defendant puts forward to convince that plaintiff's Instruction No. 4 is of a prejudicial quality are embraced in its second challenge which reads: 'Plaintiff's Respondent's instruction No. 4 is further erroneous by using the phrase 'injuries and damages'. These words in combination become argumentative, confusing and suggest to the jury an award for double damages would be permissible and further permits the jury to speculate and guess as to the basis for an award to the plaintiff'.

The propriety of a questioned instruction must be considered in the light of the evidence and issues to which it relates. Jurgens v....