Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co.

• Decision Date: 03 October 1966
• Docket Number: No. 24357,HAWKEYE-SECURITY,24357
• Citation: Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., 407 S.W.2d 622 (Mo. App. 1966)
• Parties: INSURANCE COMPANY, Plaintiff-Appellant, v. THOMAS GRAIN FUMIGANT COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 622

407 S.W.2d 622

HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. THOMAS GRAIN FUMIGANT COMPANY, a corporation, Defendant-Respondent.

No. 24357.

Kansas City Court of Appeals, Missouri.

Oct. 3, 1966.

James M. Shockey, Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for appellant.

Thomas J. Leittem, Robert R. Raymond, Kansas City, Shughart, Thomson & Kilroy, Kansas City, of counsel, for respondent.

CROSS, Presiding Judge.

Plaintiff Hawkeye-Security Insurance Company sues defendant Thomas Grain Fumigant Company, a corporation, to recover the sum of $1861.00 which it had paid under a collision insurance coverage to an insured for damages to a 1961 Buick automobile. The loss resulted from a collision between the Buick automobile, which was owned and driven by plaintiff's insured, Carl A. Davis, and a two-ton G.M.C. truck owned by defendant, and operated by its employee, John Leathers. Plaintiff brought this action as subrogee of Mr. Davis. Trial to a jury resulted in a verdict for defendant and judgment accordingly. Plaintiff appeals.

The collision occurred on July 18, 1961, in the outside northbound lane of Interstate 29, a limited access highway, at a point approximately three-tenths of a mile north of Armour Road underpass of a mile north Missouri. Interstate 29 is a four-lane highway with two northbound and two southbound lanes separated by a grass medial strip. There is a wide dirt or gravel shoulder next to the outside northbound lane. The testimony is in conflict as to whether visibility from Armour Road to the point of collision was clear and unobstructed and as to whether the highway was straight or curved in the vicinity of the accident. The weather was clear and sunny and the concrete pavement was dry.

On behalf of plaintiff, Mr. Davis testified that he entered I--29 at the Armour Road entrance and proceeded north, traveling in the outside lane. He overtook a car, passed it on the left, and returned to the right-hand lane. He then saw defendant's truck on the right-hand shoulder of the northbound lane, approximately 300 to 400 feet ahead of him (to the north). At this point Mr. Davis's wife, his passenger, inquired, 'Honey, do you see that truck?' Mr. Davis replied 'Yes'. Mr. Davis testified that when he first saw the truck it was in motion, 'running--moving paralled with the highway' in a northerly direction, and that he was then three to four hundred feet south of the truck. 'Anticipating' that he might have to move over into the left-hand lane, Davis looked in his rearview mirror and saw the car he had previously passed pulling out to pass him. Davis looked back north again and saw the truck pulling onto the highway from the shoulder. At approximately that point Davis's wife repeated her question and again received an affirmative answer. Davis was then between 100 to 125 feet behind the truck, traveling 45 to 50 miles an hour. He did not apply his brakes, but looked again in his mirror and saw that the car passing on his left was even with his rear wheels. He glanced forward again and saw that the truck was 'dead stopped' on the highway or moving very slowly, but still made no brake application. For the third time Davis glanced in his mirror and saw that the car passing him was 'right there with me'. Then, for the first time, he applied his brakes. When he did so the Buick was 'something less than around a hundred feet' behind the truck. After the car on the left had gone by, and at the 'last moment' before the collision, Davis attempted to swerve to the left when his automobile was from 5 to 10 feet from the rear of the truck. The effort was unavailing and the Davis automobile, while still traveling about 35 miles per hour, struck the back end of the truck. Davis stated he did not sound his horn or swerve to the right onto the shoulder for fear of turning over. He also testified that he saw no signed from the truck, indicating it was about to enter the highway.

Mr. Leathers testified on behalf of defendant that, as its employee and the driver of the truck involved, he had been driving north on Interstate 29 prior to the accident, but had stopped on the right shoulder of the highway at the point above because he thought he had a flat tire. He stated he turned on the flashing left turn signal, got out of the truck, looked at his tires, reentered the truck, and again turned on the left turn signal after accidentally bumping it off, gave a left turn hand signal, checked in his outside rearview mirror for traffic, saw none approaching, and proceeded to drive forward onto Interstate 29. After traveling 75 to 100 feet north in the righthand northbound lane the truck was struck in the rear by the Davis automobile. The truck was then traveling at about 5 miles per hour. Mr. Leathers testified that prior to the collision he did not hear any horn signal and that after the impact he saw no cars pass his truck northbound.

The appeal issues primarily stem from complaints by plaintiff that Instruction No. Four is erroneous in the respects hereinafter discussed. The instruction was submitted by defendant as a contributory negligence instruction, and reads as follows:

'Instruction No. 4

'Your verdict must be for the defendant whether or not defendant was negligent if you believe:

'First, Carl Davis, plaintiff's insured, either:

failed to keep a careful lookout, or

failed to stop, or

failed to slacken his speed, or failed to swerve, or disregarded electric warning signals or arm signals given by defendant, and

'Second, Carl Davis's conduct, in any one or more of the respects submitted in paragraph First was negligent, and

'Third, such negligence of Carl Davis, plaintiff's insured, directly caused or directly contributed to cause any damage plaintiff may have sustained.

'M.A.I. 28.01'.

It is apparent that the quoted instruction is a composite of (1) the submission 'failed to keep a careful lookout' as set out in MAI form 28.01 entitled 'Contributory Negligence--Generally', (2) the hypotheses that plaintiff's insured 'failed to stop or failed to slacken his speed or failed to swerve' which appear to be adapted from MAI form 17.04 entitled 'Verdict Directing--Failure to Act after Danger of Collision Apparent', and (3) an additional element--not derived from MAI--submitting the question whether plaintiff's insured 'disregarded electric warning signals or arm signals given by defendant'.

The propriety of the instruction is not challenged insofar as it submits the theory that plaintiff's insured failed to 'keep a careful lookout'. Certainly the instruction is not subject to criticism as to form, since it is composed in the exact language of MAI 28.01 (Contributory Negligence--Generally) and also comports with MAI 17.05 which is the approved form for a verdict directing instruction submitting a defendant's failure to keep a lookout. These forms employ only the simple language that plaintiff (or defendant) 'failed to keep a careful lookout'. In so drafting these forms the Committee recognized the prevailing rule that a submission so phrased is sufficient to authorize a jury finding of specific negligence in failing to keep a proper lookout, Jenkins v. Wabash Railroad Co., Mo.Sup., 322 S.W.2d 788, and that '(I)t is 'unnecessary to submit the further hypothesis that by keeping a proper lookout defendant could have seen plaintiff' or could have averted the collision'. Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759.

Although Instruction No. 4 is proper in form, insofar as it submits the lookout issue, we do not approve of the trial court's action in giving it. As the MAI Committee comments, MAI p. 122, it is error to submit failure to keep a lookout unless there is evidence from which the jury could find that the party so charged could have, in the exercise of the highest degree of care, seen the object in question sooner than he did. Levin v. Caldwell et al., Mo.Sup., 285 S.W.2d 655; O'Neill v. Calypool, Mo.Sup., 341 S.W.2d 129. The evidence in this case does not warrant such finding. When plaintiff's insured Davis entered Highway 29 (at a point approximately three-tenths of a mile from the place of collision) he was traveling northward in the right-hand lane behind another car also proceeding north directly in the line of his vision forward. Davis passed that vehicle on the left, and returned to the right-hand lane. It is not shown how far he traveled in executing that maneuver, but it may reasonably be assumed to be some substantial distance. Davis testified that after so passing the other car and returning to the right-hand lane he saw defendant's truck on the shoulder ahead for the first time and that it was then approximately 300 to 400 feet in front of him. It is clearly shown and conceded by defendant that Davis thereafter constantly kept the truck in his view until the time of collision except for three momentary intervals when he glanced in his rearview mirror to observe the position of the car behind him. There is no basis of substantial evidence to support a finding that Davis could have seen the truck prior to the time he passed the automobile preceding him and in so doing obtained an unobstructed view in the direction of the parked truck.

Plaintiff's first complaint of error in the instruction is that it did not require the jury to find that its insured knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision--as a prerequisite to the permitted findings that 'plaintiff's insured either--failed to stop or failed to slacken his speed, or failed to swerve * * *'.

It is plaintiff's position that the hypotheses 'failed to stop, or failed to slacken his speed, or failed to swerve' are specific submissions of contributory negligence, separate and apart from 'failed to keep a careful lookout', that the MAI Committee has formulated an approved instruction form (MAI 17.04)...