Howell v. Dowell

• Citation: 419 S.W.2d 257
• Decision Date: 05 June 1967
• Docket Number: No. 24677,24677
• Parties: Gloria Lane HOWELL, Plaintiff-Appellant, v. Keith L. DOWELL, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 257

419 S.W.2d 257

Gloria Lane HOWELL, Plaintiff-Appellant, v. Keith L. DOWELL, Defendant-Respondent.

No. 24677.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 2, 1967.

Arthur C. Popham, Sr., E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant.

William A. Rundle, Jr., William J. Thompson, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.

L. F. COTTEY, Special Judge.

Plaintiff was injured when defendant Dowell's automobile, in which she was riding as a guest, was struck by defendant McConn's automobile at a street intersection. She charged both with negligence in causing the accident. The jury found the charges against McConn to be sustained and returned a verdict against him from which he has not appealed. Dowell fared better; the jury absolved him. Plaintiff appeals, assigning error in the exclusion of evidence in two instances: (1) the rejection of a proffered excerpt from Dowell's answer, (2) the refusal to allow her to elicit from Dowell, on cross-examination, a concession that she was not to 'blame' for the accident. Of the first.

Dowell's separate answer categorically denied all charges of negligence laid against him in the petition. Coupled with his denials was a plea of contributory negligence in this language: 'That if plaintiff sustained any injuries at the time and place referred to in her petition for damages, that said injuries were caused and/or contributed to by her own careless and negligent acts and omissions.' ¹ No effort was made to substantiate that issue at the trial and no submission of it was requested. Nevertheless, the fact that the plea was made is the thing to which our attention is first and most insistently directed on this appeal. The point arose this way. Plaintiff offered the quoted portion of defendant's answer in evidence and asked leave to read it to the jury, claiming that it 'constituted an admission by Dowell against his interest which was inconsistent with his trial claim of freedom from negligence,' because, as the proposition is phrased in her brief, 'contributory negligence of a plaintiff necessarily presupposes negligence of the defendant.' ² In other words, by pleading contributory negligence on plaintiff's part, Dowell implicitly admitted his own negligence, and the pleading containing that admission should have been received in evidence.

Plaintiff argues the effect of the plea from two points of view: 1st, as an inference of fact to be drawn from the circumstances under which it was made, 2nd, as an implication of law arising from the fact it was made.

Her first argument takes this line: (1) she was a guest in Dowell's automobile, charged only with the duty of exercising ordinary care for her own safety (2) so far as the evidence discloses, there was no way she could have neglected that duty except by failing to see the McConn car in time to have given Dowell an effective warning of its approach and, thereby, an opportunity to avoid the collision; (3) since her failure to do so is the only logical basis for charging her with contributory negligence, it must be assumed that the plea was directed to that omission; (4) but if plaintiff's failure to see the McConn car was a breach of ordinary care on her part, then it was a significantly more culpable breach on Dowell's part not to have seen it himself in the exercise of the highest degree of care, so as to have obviated the necessity for any warning; consequently (5), the circumstances that prompted his complaint of her conduct reflect discreditably on his own, and the jury was entitled to see it in that reflected light.

One trouble with that argument is that only step 1 of it is based on the evidence; all its other conclusions depend for their plausibility on the absence of evidence to contradict them. The abbreviated transcript on which the parties have submitted this appeal does not disclose whether plaintiff ever saw, or was in a position to see, the McConn car, or, for that matter, that she failed to warn Dowell of its approach. To supply the omission an assumption of those facts is made in step 2, and adroitly developed in step 3 as the basis for the plea. But the assumption is neither evidence nor the legitimate offspring of evidence. It is simply an argumentative hypothesis which the evidence does not refute, advanced as an inference of fact to beguile us down the path of speculation. If the skeletal plea in this case is to be fleshed out with conclusions of that sort, to give it the substance and weight that plaintiff claims for it, then there is no limit to the number of them from which a selection can be made. To illustrate: The record does not exclude the possibility that in spite of the accident plaintiff would have sustained no injury had she exercised due care to protect herself from it by fastening her seat belt, or by using some other available safety device. If we are to resort to conjecture for some circumstance that might have prompted Dowell's plea, it would seem just as plausible to assume that it was prompted by an omission of that kind as by her failure to warn him of the impending collision. The example reminds us again that imagination is not a substitute for evidence. In candor, however, we cannot reject the argument on that ground without a further explanation, for this reason. At the close of plaintiff's case defendant moved for a directed verdict, asserting that 'plaintiff was guilty of contributory negligence as a matter of law in failing to give this defendant a warning of the approaching vehicle driven by defendant McConn.' Plaintiff says the motion confirms her view of the circumstances that prompted the plea. But that is not true, in any real sense. The motion admits nothing; by no standard can it be regarded as a judicial admission. Nor is any principle of estoppel involved. Plaintiff has not been misled by the motion to her detriment; on the contrary, she seeks an advantage from it. And since it was not offered in evidence we may not accord it any evidential value. We are in the same position, therefore, as though the motion had never been made. It is an argumentative diversion of no evidentiary significance. That brings us back to the fact that the basic assumption in plaintiff's argument is unwarranted, and when it falls all subsequent and dependent deductions fall too, domino style.

The argument must be disallowed for another reason. Dowell's answer contains no admission of negligence in terms; his denials of it are explicit. In those circumstances it is not possible to infer his negligence 'without creating a repugnancy to the express language of contrary import contained in the pleading.' This we may not do. 'It is elementary that no construction is permissible which would give an inferential meaning to a pleading contradictory to its express averments.' Rawlings v. St. Louis & S.F.R. Co., Mo., 175 S.W. 935, 940.

Plaintiff's second approach does away with the necessity of construing the plea, inferentially or otherwise, and thus avoids the shoal of the Rawlings case. Its guiding star is the fact that the plea was made; nothing else matters. That fact alone raises an implication of law--'necessarily presupposes,' so the argument runs--that that the pleader himself was negligent. No authority is cited in direct support of that proposition, but it is not altogether a novel one. Its basic premise seems to have been suggested by the early case of Payne v. Chicago & A. R. Co., 129 Mo. 405, 31 S.W. 885, 888, where, by what was afterwards termed a 'refinement in technical reasoning,' it was said, 'It is clear there could be no contributory negligence unless there was also negligence of defendant to which that of plaintiff could contribute.' Further refinement led to this concept: 'The term 'contributory negligence' necessarily presupposes negligence for which defendant is responsible, which would of itself sustain an action but for the concurrence of the negligence of the plaintiff.' Christman v. Reichholdt, Mo.App., 150 S.W.2d 527, 533; Tribout v. Kroger Grocery & Baking Co., Mo.App., 191 S.W.2d 261, 263; Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390, 393; 65 A C.J.S. Negligence § 116, p. 23. Plaintiff's present argument is launched from that base. But no court has ever followed the flight of its logic to the extremity of holding that a plea of contributory negligence is made at the pleader's peril, to be used against him as an admission of his own...