Heerman v. Burke

• Decision Date: 08 June 1959
• Docket Number: No. 16114.,16114.
• Citation: 266 F.2d 935
• Parties: Donald Albert HEERMAN, Appellant, v. Jessalynn BURKE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F.2d 935 (1959)

Donald Albert HEERMAN, Appellant, v. Jessalynn BURKE, Appellee.

No. 16114.

United States Court of Appeals Eighth Circuit.

April 29, 1959.

Rehearing Denied June 8, 1959.

Robert E. Seiler, Joplin, Mo. (Seiler, Blanchard & Van Fleet, Joplin, Mo., were with him on the brief), for appellant.

Almon H. Maus and Edward V. Sweeney, Monett, Mo., for appellee.

Before GARDNER, Chief Judge, VOGEL and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

This is a suit to recover money damages for injuries alleged to have been received by plaintiff (appellee) while riding as a guest in the defendant's (appellant's) automobile. Jurisdiction is based upon diversity of citizenship and amount involved. Plaintiff had judgment based on a jury verdict in the amount of $10,000.00. The sole question raised on this appeal is whether or not the trial court erred in denying defendant's request to have the jury specifically instructed on his theory of the case.

The record reveals that on the morning of July 17, 1956, the defendant, an insurance adjuster, met plaintiff, a shorthand reporter, at a prearranged location so that they could travel together to take statements of witnesses. After meeting, they proceeded together in defendant's automobile, defendant driving and plaintiff riding in the front seat beside him. The witness they were seeking lived at the north end of a north-south gravel country road about one-fourth mile in length. The road was level and smooth. The weather was hot and dry. The windows in the automobile were open. Defendant was wearing a short-sleeved sport shirt and was driving with his left elbow resting on the ledge or sill of the left front window, with both hands on the steering wheel. According to plaintiff, they were traveling between 35 and 40 miles per hour. According to defendant, their speed was between 20 and 25 miles per hour. As they were so proceeding, an insect (wasp) flew into defendant's left shirt sleeve. Defendant removed his right hand from the steering wheel and grabbed at his shirt in an attempt to imprison the insect. As he did so, it stung him in the armpit. Defendant had removed his foot from the accelerator and had it on the brake at the time he was stung. Defendant claims that the sting was sudden, sharp and unexpected and that it caused him to jump and he involuntarily applied the brakes fairly hard, bringing the car to a stop more quickly than he intended. Defendant claims that the automobile veered off just to the right edge of the road. Plaintiff contends that it went into the right ditch, which was about 18 inches in depth. The combination of a sudden stop and the veering off to the right apparently resulted in plaintiff being thrown forward and injured.

Defendant concedes that the unexplained action of his automobile as testified to by the plaintiff would make a submissible case for a jury under the doctrine of res ipsa loquitur, but he contends that the trial court erred in refusing to specifically instruct on his theory of defense and his explanation of the accident. It was the defendant's theory that he was acting with all due care, had complete control of his car, traveling at a proper and moderate rate of speed, when, through no fault of his own, the wasp entered his left shirt sleeve; that his natural, instinctive reaction was to try to contain it, stop the car and then remove the insect from his sleeve; that while he was so doing and was slowing down, the wasp gave him a sharp, sudden and very intense sting which startled, surprised and shocked him and caused him to involuntarily apply the brakes "fairly hard" and bring "the car to a stop quicker than I had intended"; that the wasp's entering his sleeve created an emergency for which he was not responsible and resulted in great mental stress or excitement, and that his actions thereafter should be judged by the emergency rule. In support of his theory of the case, the defendant submitted two requested instructions to the trial court as follows:

"(Requested Instructions on Behalf of Defendant.)

No. 1.

The court instructs the jury that if you find from the evidence that defendant was driving north on the gravel road at a reasonable rate of speed and in a proper manner under the conditions and circumstances then existing, and if you further find from the evidence that as he was so driving north he had the left door window rolled down and his left arm resting on the left window sill and an insect or wasp got into the sleeve of defendant\'s shirt, and that he thereupon applied or started to apply his brakes and took hold of his left shirt sleeve with his right hand so as to imprison or contain the insect until he could stop his car and remove the insect from his sleeve, and that as the defendant was so doing the insect suddenly, unexpectedly, and violently stung him in or near the left armpit and defendant thereupon involuntarily and instinctively jumped or reacted by reason of said sting and in so doing turned the steering wheel of his car slightly to the right and made a hard application of the brakes so that he stopped suddenly and in a shorter distance than he had intended and that in so stopping the right front wheel of defendant\'s automobile got off the traveled portion of the road or into the ditch, and if you further find that by reason of being stung by said insect the defendant was rendered momentarily incapable of controlling his reactions and by reason thereof turned his car to the right and stopped suddenly and that the pulling of the car to the right and suddenly stopping it were not due to the failure of the defendant to exercise the highest degree of care in the operation of his said car, then your verdict will be in favor of the defendant and against the plaintiff.

No. 1B.

"If you find and believe that while the defendant was driving his automobile on the gravel road in question an insect or wasp got into the sleeve of his shirt and that defendant was thereby placed in a position of great mental stress or excitement, and by reason thereof defendant was faced with an emergency calling upon him for decision while under such great mental stress or excitement, and if you find that said sudden emergency was not caused or occasioned by any negligence on defendant\'s part — then you are instructed that defendant is not held to the same degree of judgment and care as would be required of him if he was called upon to act under normal conditions and without any influence of great mental stress or excitement — and if you further believe and find from the evidence that when said sudden emergency came into existence the defendant thereafter acted as any very careful and prudent person would have acted and done under the same or similar circumstances, then you should take such matter into consideration in determining whether defendant was or was not negligent under the circumstances shown in evidence and if you find and believe from all the evidence that defendant was not negligent under all the facts and circumstances shown in evidence then your verdict should be in favor of defendant, and this is so even though you may find and believe from the evidence that plaintiff sustained some personal injury at the time of the casualty in question."

The court denied defendant's requests and instead instructed as follows:

"So if you find and believe from the evidence that under the facts and circumstances shown in evidence the defendant suddenly decreased his speed and caused the automobile in question to veer to the right and partially off the highway in question and brought it to a sudden, abrupt stop, under all the facts and circumstances shown in the evidence, and you find and believe from the evidence that the defendant was negligent in so acting under the circumstances then and there existing, if you find that the negligence was the direct and proximate cause of any injury that the plaintiff sustained in the case, then the plaintiff is entitled to recover in this case and your verdict should be in favor of the plaintiff and against the defendant."

The court thereupon gave the converse of such instruction and thereafter informed the jury:

"Now, the mere fact that the defendant in this case was stung by a bee or a wasp at the time he was operating his automobile in question, standing alone, does not decide this case. It is a circumstance which you can take into consideration, together with all the other facts and circumstances shown in evidence as to the manner in which he was operating his car, his reactions, and so on and so forth, in determining whether or not he was or was not negligent under those facts and circumstances."

Defendant took exceptions to the "refusal of the Court to include the instructions contained in the requested instructions 1 and 1-B."

We must determine here whether the record contains sufficient evidence to justify a jury finding of legal excuse or emergency and, if so, whether defendant was entitled, upon...