Long v. Twehous Contractors, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: HANNA
• Citation: Long v. Twehous Contractors, Inc., 904 S.W.2d 285 (Mo. App. 1995)
• Decision Date: 06 June 1995
• Docket Number: No. WD,WD
• Parties: Dwight D. LONG, Appellant, v. TWEHOUS CONTRACTORS, INC., Respondent. 49786.

Page 285

904 S.W.2d 285

Dwight D. LONG, Appellant, v. TWEHOUS CONTRACTORS, INC., Respondent.

No. WD 49786.

Missouri Court of Appeals Western District.

June 6, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1995.

Application to Transfer Denied

Sept. 19, 1995.

John T. Papa, Granite City, for appellant.

Richard Brownlee, II, Jefferson City, for respondent.

Before HANNA, P.J., and BERREY and SPINDEN, JJ.

HANNA, Presiding Judge.

Plaintiff, Dwight D. Long, appeals from a judgment entered on a jury verdict for the defendant, Twehous Contractors, Inc.

This appeal arises out of an automobile accident which occurred on February 12, 1988. Viewed in the light most favorable to the verdict, the facts show that on the morning of February 12, the plaintiff, an employee of the Missouri Highway and Transportation Department, was driving on Highway 54 south of Jefferson City. His dump truck had an attached snowplow and a load of cinders in the bed. Highway 54 is a four-lane divided highway with two lanes in each direction divided by a median strip. Plaintiff was proceeding southbound in the passing lane of the highway at approximately twenty to twenty-five miles per hour. It was snowing and foggy, and visibility was limited.

The same morning, Clinton Jones was driving a half-ton pickup truck on Highway 54 for his employer, Twehous Contractors. Jones was proceeding southbound in the right lane at less than forty-five miles per hour. As he approached a tractor-trailer driving in the right lane, Jones moved into the passing lane and attempted to pass the truck at approximately thirty-five miles per hour. However, snow began to limit Jones' visibility, so he decided to return behind the truck. While still in the passing lane and before he could return to the right lane, Jones noticed the plaintiff's snowplow traveling approximately ten to thirty feet in front of him. Because of the snowy road conditions, Jones did not believe that he could brake without hitting the plaintiff's truck, so he swerved to the left towards the median. The front right corner of defendant's truck struck the left rear fender of plaintiff's snowplow. The impact pushed the left rear fender of plaintiff's truck against the base of the left wheel, which was repaired with a crow bar in order to allow the plaintiff to drive away. Defendant's truck sustained right fender and front end damage.

After the accident, Jones exited his truck and asked plaintiff if he was all right. Plaintiff replied that he was "fine." Jones then got into the plaintiff's truck and assisted him in filling out an accident report. Plaintiff did not complain of any physical injuries from the accident. A highway patrol officer arrived at the scene and ticketed Jones for following too closely. Jones then drove his truck back to the Twehous shop. He later pleaded guilty to the traffic ticket because he "could not afford a lawyer to plead [his] case" and "it was cheaper just to plead guilty."

Plaintiff drove the snowplow back to his employer's shop and obtained a new assignment. That afternoon, plaintiff was involved in a second accident when another vehicle crossed the center line and forced plaintiff's truck off the road and into an embankment. Plaintiff later testified that he was "jerked," "jostled" and "banged around" the inside of the cab of the truck. When the truck came to rest in the embankment, plaintiff was suspended sideways by his seat belt. He escaped the vehicle by unhooking his seat belt while clinging to the steering wheel and then pushing the door open.

After the two accidents on February 12, 1988, plaintiff continued to work for the highway department. On April 6, 1988, plaintiff was involved in a third accident when the steel handle of a jack flipped up and hit him on the chin. The impact knocked plaintiff approximately five feet and rendered him unconscious.

From March 1988 through November 1989, plaintiff visited numerous doctors at several Columbia clinics and received treatment for complaints of pain in his hand, wrist, neck and back. He participated in rehabilitation therapy for recurring back spasms and had surgery on his wrist.

In November 1989, the highway department gave plaintiff a new job involving lighter duty and a pay raise. On three additional occasions, he requested and received positions involving lighter duty and pay raises. In January 1991, plaintiff requested and received a one-year leave of absence to pursue physical rehabilitation. After receiving the leave of absence, plaintiff relocated to St. Louis and later to Illinois. While in St. Louis, a doctor prescribed rehabilitation therapy which plaintiff admitted he did not follow. In May 1991, plaintiff was terminated for failing to pursue physical rehabilitation and for failing to furnish required medical reports.

On January 25, 1989, plaintiff filed this action against Jones' employer, Twehous Contractors, seeking to recover for wrist and back injuries which he alleged resulted from the February 12, 1988 accident. An amended petition was subsequently filed. Plaintiff also filed a motion to consolidate this action with his lawsuit against Verslues, the driver of the car in the afternoon accident. That motion was denied. Both plaintiff and Jones testified at the trial in February 1994. The jury returned a verdict assessing "0" percentage of fault to each party and assessing plaintiff's damages at "0." The trial court entered judgment in favor of the defendant on the verdict. Plaintiff filed a motion for new trial which was denied. This appeal followed.

Plaintiff raises five points on appeal. In his first point, plaintiff contends the trial court erred in refusing to give his proffered negligence per se verdict-directing instruction. Plaintiff argues that the trial court should have submitted the negligence per se instruction because Jones received a traffic ticket to which he pleaded guilty.

The plaintiff alleged that the defendant committed the following negligent acts: failure to keep a proper lookout; failure to keep his vehicle under proper control; operation of his vehicle at a speed greater than was reasonable and proper for the road conditions; failure to reduce the speed of his vehicle as necessary to avoid colliding with any person or vehicle on the highway; and failure to exercise due care and caution in operating his vehicle.

"A jury instruction is prejudicially erroneous when such instruction directs recovery on a different theory than the one pleaded and proved or allows the jury to find for a party on a different basis than that pleaded." Fisher v. McIlroy, 739 S.W.2d 577, 580 (Mo.App.1987).

This same issue was addressed in Myers v. Morrison, 822 S.W.2d 906 (Mo.App.1991). In Myers, the plaintiff brought suit against the defendant for personal injuries arising out of an automobile accident. The defendant was issued a traffic ticket for "failure to keep right," and she pleaded guilty to that charge. Id. at 907. In her petition, the plaintiff alleged several acts of negligence but did not plead a statutory violation or negligence per se theory of liability. Id. at 908. At trial, plaintiff introduced evidence, without objection, that the defendant had received a traffic ticket to which she pleaded guilty. Plaintiff did not move to amend the pleadings. The defendant never conceded negligence and explained that she had pleaded guilty to the traffic ticket only as a matter of convenience because it would cost less to plead guilty than to defend the charge. Id. at 909. After hearing the evidence, the court submitted a verdict-directing instruction to the jury which omitted any finding of negligence by the defendant. Id. at 908. On appeal, the defendant argued that the trial court erred in giving a negligence per se instruction because it prevented her from effectively presenting the defense that she was not negligent. The plaintiff argued that the issue of negligence per se was "tried by consent." Id. Noting that the defendant had denied negligence throughout the trial, the court found that the "absence of an objection did not expressly or impliedly inject a negligence per se theory into the case." Id. at 909. The court held that the trial court erred in giving an instruction which withheld the element of negligence from the jury's consideration, noting that the submission of such an instruction "had the effect of directing a verdict for plaintiff where the issue of negligence was disputed." Id.

In this case, as in Myers, the plaintiff did not plead a statutory violation or a negligence per se theory of liability in his amended petition. By its responsive pleadings, the defendant denied negligence. Although testimony was elicited at trial concerning Jones' traffic ticket and guilty plea, the plaintiff did not move to amend the pleadings, nor does he claim on appeal that the issue was tried by consent. Moreover, Jones did not concede any negligence. At trial, he testified that he pleaded guilty to the traffic ticket for reasons other than his guilt. Since the record indicates that the issue of negligence was in dispute and that plaintiff did not plead a statutory violation or negligence per se, the court properly refused to submit plaintiff's negligence per se instruction.

In his second point, plaintiff claims the trial court erred in submitting Instructions No. 5 and 6 and Verdict Form No. 10. The plaintiff claims the court should have submitted his proffered verdict-directing instruction and verdict form, patterned after MAI 17.02 (modified) and MAI 36.01, respectively, which did not provide for comparative fault.

Instruction No. 5, patterned after MAI 17.02 (modified), stated in the introductory paragraph, "In your verdict, you must assess a percentage of fault to defendant if you believe...." Plaintiff argues that the verdict form (MAI 37.07) submitted to the jury also allowed for an assessment of a percentage of fault to each of the...