Jenkins v. Keller

• Decision Date: 16 March 1979
• Docket Number: No. 9921,9921
• Citation: 579 S.W.2d 166
• Parties: Zona M. JENKINS and Clyde Jenkins, Plaintiffs-Respondents, v. Mary E. KELLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 166

579 S.W.2d 166

Zona M. JENKINS and Clyde Jenkins, Plaintiffs-Respondents, v. Mary E. KELLER, Defendant-Appellant.

No. 9921.

Missouri Court of Appeals, Southern District, En Banc.

March 16, 1979.

Donald E. Bonacker, Bonacker & Reynolds, Springfield, for plaintiffs-respondents.

Gerald H. Lowther, C. Ronald Baird, Lowther, Johnson & Franks, Springfield, for defendant-appellant.

BILLINGS, Judge.

Damage suit and jury verdict for defendant. The trial court granted plaintiffs' motion for a new trial because the contributory negligence instruction omitted "The use of " from MAI 17.04 preceding the phrase "the highest degree of care." Defendant contends the omission did not result in prejudicial error and avers: (1) plaintiffs failed to make a submissible case of negligence and (2) plaintiff Zona Jenkins was guilty of contributory negligence as a matter of law. We affirm the action of the trial court.

Instruction 4, given at defendant's request, was as follows:

"Your verdict must be for Defendant MARY KELLER on the claims of both plaintiffs, Zona M. Jenkins and Clyde Jenkins, for damages, whether or not defendant Mary Keller was negligent, if you believe:

FIRST, Plaintiff, Zona M. Jenkins, either: Drove at an excessive speed, or knew, or by the highest degree of care could have known, that there was a reasonable likelihood of collision in time thereafter to have stopped, or swerved, or slackened her speed and swerved, but Plaintiff, Zona M. Jenkins, failed to do so; and

SECOND, Plaintiff, Zona M. Jenkins' conduct in any one or more of the respects submitted in Paragraph First, was negligent; and

THIRD, such negligence of Plaintiff, Zona M. Jenkins, directly caused or directly contributed to cause any damage plaintiffs may have sustained.

The term 'highest degree of care' as used in this instruction means that degree of care that a very careful and prudent person would use under the same or similar circumstances."

Defendant admits that the applicable part of MAI 17.04 should have read that plaintiff Zona M. Jenkins "knew or by the use of the highest degree of care could have known" and concedes the omission of "The use of " constitutes a deviation from an applicable MAI instruction, but says this was not prejudicial to plaintiffs.

Supreme Court Rule 70.02, V.A.M.R., formerly Rule 70.01, provides, in part, 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."

In Brown v. St. Louis Public Service Company, 421 S.W.2d 255 (Mo. banc 1967), our Supreme Court, speaking through Finch, J., said at 257:

"This court, by its adoption of Missouri Approved Instructions, promulgated precise approved instructions. These had been drafted after much research and great effort on the part of the court's special committee and its able reporter, the late Professor John S. Divilbiss. A preliminary draft was distributed and suggestions were received from the bench and bar before final adoption. The system was devised to eliminate the old system of complex, detailed and frequently argumentative instructions which caused great difficulty for jurors, lawyers and judges, and resulted in a high percentage of reversals on account of instructions given or refused. The special committee carefully considered The precise words to use in each approved instruction in order to provide simple, concise and understandable instructions. Directions as to the format to be followed were given to cover those instances where no MAI instruction is provided or where the facts of a case require modification of an MAI instruction. When an MAI instruction is applicable, its use is mandatory." (Emphasis added).

In Brown, supra, the court ruled that where there is a deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation. 421 S.W.2d at 259.

In sustaining plaintiffs' motion for a new trial because of the omission in Instruction 4, the experienced trial judge made the following entry "Instruction 4 was erroneous because it omitted the words 'the use of' which are required by MAI 17.04. The question to be judicially determined is whether such omission was prejudicial to plaintiffs. The Missouri Supreme Court presumably considered the omitted words important. Such words relate to and require finding that the party (Zona Jenkins in this case) failed to use 'that degree of care that a very careful and prudent person would Use under the same or similar circumstances' (the wording in MAI 11.03). The words are similar to the words 'by using', which are found in many MAI instructions (e. g. 17.14, 17.15, 22.03, 22.04, 22.05, 25.03, 31.01, 33.06(1), (2), (3), (4) and (6)). Paragraph First, without 'the use of', does not require the jury to find that Zona Jenkins could have known, etc. if She had fulfilled Her duty to make the use of the highest degree of care, and thus does not clearly define her duty. Mandatory paragraph Third of Instruction 4 (referring to negligence) and mandatory Instruction 7 (MAI 11.03, which uses the words 'the failure to Use the highest degree of care') should be read with paragraph First of Instruction 4. When this is done, paragraph First could mean that the jury was being told that they must find that plaintiff Zona Jenkins, herself personally, could have known, etc. if she had used (that is by the use of) the highest degree of care. But MAI 17.04 apparently was not considered by the MAI Committee or The Missouri Supreme Court to be completely clear without putting in the words 'the use of' in paragraph First. Therefore, the court concludes that the instruction was prejudicial to plaintiffs and the court judicially so determines."

The prejudicial effect of the instruction was primarily a matter for the trial judge and on review we are obliged to look with liberality upon the action of the trial court in granting a new trial. Brown v. St. Louis Public Service Company, supra, concurring opinion by Storckman, J., at 260; Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974). As Judge Titus of this court wrote in Brittain v. Clark, 462 S.W.2d 153 (Mo.App.1970), at 157: "We are indubitably tied to the aphoristic principle that an appellate court will be more liberal in upholding the action of a trial court in sustaining a motion for a new trial then (sic) in denying it. . . . This precept has been afforded complete accommodations in appeal cases involving jury instructions." (Citations omitted).

Here, as the trial court pointed out, MAI 17.04 as given conflicts with MAI 11.03, insofar as the duty of plaintiff Zona Jenkins is concerned. Defendant has failed to provide us with authority that considers the instant omission harmless error. On the contrary, she seeks to avoid the presumption of prejudicial error by a combined reading of Instruction 4 (MAI 17.04) and Instruction 7 (MAI 11.03), and by defendant's jury argument concerning Instruction 4 in which defense counsel verbally inserted "the use of." As noted, a conflict appears between Instructions 4 and 7 and error in instructions cannot be cured by jury argument. Snyder v. Chicago, Rock Island & Pacific R.R. Co., 521 S.W.2d 161 (Mo.App.1973).

Judge Finch, in Brown, supra, summed up the Supreme Court's philosophy as to variances from MAI instruction this way:

"It must be recognized, however, that a system of instruction such as MAI is inherently Standardized and Inflexible. If this court is to make this system work, and preserve its integrity and very existence, We must insist that mandatory directions be followed and that the pattern instructions be used As written." 421 S.W.2d at 257-258 (Emphasis added).

Here, the applicable MAI instruction was not given As written. Defendant has failed to make it perfectly clear that no prejudice resulted. The trial court judicially determined the instruction was prejudicial to plaintiffs. We defer to the conclusion of the trial court. ¹

Plaintiffs are entitled to the most favorable evidence rule in our review of defendant's contentions regarding the submissibility of plaintiffs' case (Abraham v. Johnson, 579 S.W.2d 734 (Mo.App.1979)and contributory negligence of plaintiff Zona...