May v. Bradford

• Decision Date: 10 July 1961
• Docket Number: No. 2,No. 48267,48267,2
• Citation: 348 S.W.2d 133
• Parties: Tom MAY, Respondent, v. Thedore George BRADFORD and William W. Mann, Appellants
• Court: Missouri Supreme Court

Page 133

348 S.W.2d 133

Tom MAY, Respondent, v. Thedore George BRADFORD and William W. Mann, Appellants.

No. 48267.

Supreme Court of Missouri, Division No. 2.

July 10, 1961.

Dwight Crader, Sikeston, for appellant Bradford.

Harold D. Jones, Bock & Jones, New Madrid, for appellant (defendant) William Mann.

James V. Conran, Hal E. Hunter, Jr., New Madrid, for plaintiff-respondent.

STOCKARD, Commissioner.

Vivian May, a passenger in a Buick automobile being operated by William Mann on U. S. Highway 61, was killed when the automobile cillided with a Ford truck being driven in the opposite direction by Theodore George Bradford while he was attempting to pass a Studebaker automobile operated by Walter Mungle. Bradford and Mann have appealed from a judgment in the amount of $25,000 in favor of Tom May for the wrongful death of his wife. Mann has also appealed from an adverse judgment on his cross-claim for personal injuries entered in favor of Bradford.

From the plaintiff's evidence it appears that Mungle drove onto Highway 61 from a county road, turned southward and drove about 30 or 35 miles an hour. Bradford was driving his Ford truck southward on the highway about 60 miles an hour, and when he overtook Mungle he turned out to pass. Mann was driving northward on the highway at approximately 60 miles an hour. There was a 'rise and curve' in the highway ahead of Mann, and when he drove around the curve he saw the Bradford truck 'go out to pass' the Mungle Studebaker. The two vehicles were then about a block or 350 to 400 feet ahead of him. Mann 'took to the shoulder' of the highway and he 'angled off a slight degree' and applied the brakes. The automobile 'evidently skidded' and 'something caused it to come back into the highway partially.' When Mann's automobile was skidding at about a 45 degree angle, partly on the northbound lane of the highway and partly on the shoulder, it struck the left side of the truck, spun around counterclockwise, the right door came open, and Mrs. May was thrown out and killed. From the point of impact, which was in the northbound or east lane of the highway, there were tire marks made by Mann's Buick extending back southward 178 feet.

At the conclusion of plaintiff's case the court sustained a motion for a directed verdict in favor of Mungle, to which there is no objection on this appeal, and it refused a motion by Mann for a directed verdict. Mann then announced that he was standing on his motion and would introduce no evidence as to plaintiff's case, but he did introduce medical testimony as to his cross-claim against Bradford for personal injuries. Bradford introduced evidence in plaintiff's suit and also as to Mann's cross-claim against him. He testified that when he was in the process of attempting to pass the Mungle Studebaker he saw Mann's Buick, 1,800 to 2,000 feet down the highway, traveling at a 'terrible speed,' 80 to 90 miles an hour. He slowed down to get back on the right side of the highway, but the Studebaker was also slowing down, so he 'struck her [his truck] to low gear and tried to get on around him.' He got the front wheels of the truck back on the right side of the highway, but the left rear dual wheels were still across the centerline, not over 2 1/2 feet, when the Buick hit his truck.

On this appeal both Mann and Bradford challenge plaintiff's instruction 3, which was as follows:

'With reference to the charges of negligence against both of the defendants in this case, you are instructed that if from the evidence and these instructions of the Court you find that the negligence, if any, of the defendant Theodore George Bradford, no matter how great, and the negligence, if any, of the defendant, William W. Mann, nor matter how great, directly concurred, combined and contributed in any degree to cause the death of Vivian May, then it would be your duty to return a verdict in favor of the plaintiff against both the defendants, because if both the defendants were negligent in any respect submitted to you in these instructions, and if their negligence directly contributed to cause the death of the plaintiff's wife, the neither defendant even if less negligent than his co-defendant, could make use of the concurring negligence of his co-defendant to defeat the claim of the plaintiff against both of the defendants.

'In other words, it is not defense to one defendant that the negligence of some other defendant concurred with his negligence to cause injury to the plaintiff, and before you can render a verdict in favor of any one defendant, you must find and believe from the evidence that said defendant was not negligent or that his negligence, if any, did not contribute to cause the death of Vivian May.'

Mann asserts that both paragraphs of instruction 3 are erroneous, but Bradford directs his claim of error only to the last paragraph. Since the use of the last paragraph results in prejudicial error we shall not rule specifically on the alleged error as to the first paragraph, but in the event of a new trial counsel would be well advised to read Danner v. Weinreich, Mo.Sup., 323 S.W.2d 746; Waldrip v. American Buslines, Inc., Mo.Sup., 327 S.W.2d 211; and Rothweiler v. St. Louis Public Service Co., 361 Mo. 259, 234 S.W.2d 552, 555.

The last paragraph of instruction 3 is identical in substance to the concluding paragraph in a similar instruction which was held to be prejudicially erroneous by this court en banc in Rothweiler v. St. Louis Public Service Co., supra. In that case, as here, plaintiff contended that the negligence of two defendants had concurred in causing his injuries. The court had this to say: 'We think the second paragraph is prejudicially erroneous because of the likelihood of certain of its language being taken literally by a jury of laymen. The paragraph seemingly undertakes to state conversely, and more briefly, the proposition submitted in the first paragraph, as witness the phrase, 'In other words.' The first clause of the second paragraph is unobjectionable, but the remaining portion is mischievous. To say, as this portion does, that before a verdict can be rendered in favor of any one defendant, it must be found from the evidence that such defendant was not negligent, or that his negligence, if any, did not contribute to cause plaintiff's injuries, is to misstate the law. The burden is the other way around. As a condition to a plaintiff's verdict, it must be found from the evidence that defendant was negligent, and that such negligence contributed to cause the injury. It is true that by other instructions the jury was told that the burden was upon plaintiff to prove her case by the preponderance or greater weight of the evidence, and that she was injured through defendants' negligence. Even so, we think a jury would have difficulty in reconciling these declarations with the second paragraph of [the instruction], and that the latter should not have been given.'

Plaintiff has advanced no sound reason, and we perceive none, for giving the above instruction in the face of the ruling of the Rothweiler case, and he advances no reason way the ruling of that case should no longer be followed or should not be considered applicable to this case. For the reasons advanced in the Rothweiler case we rule that the use of the second paragraph in instruction 3 was prejudicially erroneous.

Some of the other contentions of error as to plaintiff's suit will be considered because of the likelihood of recurrence on retrial. Mann and Bradford challenge plaintiff's instruction 5 defining the highest degree of care, the substance of which is identical to the substance of the instruction set out in Martin v. Turner, Mo.Sup., 306 S.W.2d 473, at page 478, and there held to be prejudicially erroneous because 'The definition set forth in the instruction falls far short of the requirements of the statute.' See also Shepard v. Harris, Mo.Sup., 329 S.W.2d 1, 9. Plaintiff asserts that instruction 5 is not prejudicially erroneous in this case because both Mann and Bradford submitted other instructions properly defining the highest degree of care. We need not decide if the error was cured, but it is obvious that the instruction as worded should not be given in the event of a new trial.

Mann challenges plaintiff's instruction 2, which directed a verdict against him, because it submits that he 'failed to use the highest degree of care in the operating of his 1955 Buick automobile, in that he carelessly and negligently drove and operated his 1955 Buick automobile at a fast and excessive rate of speed under the circumstances then and there present, and failed to have his vehicle under control, * * *.' Mann asserts that this instruction is erroneous because it fails to hypothesize issues of fact from which it could be determined that his speed was excessive and that he failed to have his automobile under control. Plaintiff's only defense of the instruction, with which we...