Mayer v. Orf
| Decision Date | 11 July 1966 |
| Docket Number | No. 51085,No. 2,51085,2 |
| Parties | Fred John MAYER, Appellant, v. Carol Jean ORF, Respondent |
| Court | Missouri Supreme Court |
James M. Byrne, St. Louis, for appellant.
Evans and Dixon, Ralph C. Kleinschmidt, St. Louis, for respondent.
A verdict for the defendant was rendered by the jury in plaintiff's suit for $50,000 for personal injuries. Plaintiff's motion for new trial was overruled and this appeal followed.
The sole issue presented to this court on appeal is whether Instruction No. 1, a credibility instruction tendered by defendant, was prejudicially erroneous.
The nature of this single issue makes a detailed recital of the evidence unnecessary, It is sufficient to state that the case involved a collision which occurred at night in the inside lane of westbound Interstate 70 in St. Louis County. Plaintiff's car was stopped crosswise without lights in that lane and defendant came over the crest of a hill and collided with plaintiff's automobile. Plaintiff submitted on humanitarian negligence for failure to stop and defendant submitted on primary negligence on her counterclaim. The evidence as to when defendant did or could have seen plaintiff and as to the distance in which she could have stopped was conflicting.
Instruction No. 1 was as follows:
Plaintiff is critical of the intelligibility of Instruction No. 1 generally, but the only complaint asserted in his brief to demonstrate error is focused on the concluding clause, 'and you are at liberty to accept or reject all or any part of such testimony.'
Instruction No. 1, up to the questioned final clause, is essentially the same credibility instruction which has been approved repeatedly over a long period of time. Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, 755(9); Esstman v. United Railways Co. of St. Louis, Mo., 232 S.W. 725, 728(7); State v. Turner, Mo., 320 S.W.2d 579, 585(11--14). If the instruction had stopped at that point, it clearly would not have been erroneous.
Did the addition of the final clause, as plaintiff asserts, improperly tell the jury that they could accept or reject testimony arbitrarily, regardless of standards for judging credibility, in effect telling them that they could accept testimony they disbelieved and reject testimony which they believed? We think not.
In the first place, the instruction tells the jury that they are the sole judges of the credibility of witnesses and the weight to be given to their testimony. This clearly is the law in Missouri. Bell v. Pedigo, Mo., 364 S.W.2d 613, 616(4); Wilhoit v. Fite, Mo., 341 S.W.2d 806, 816(15). They even may disbelieve the testimony of a witness which is uncontradicted and unimpeached. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233(7); Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559(2--3).
Next, the instruction told the jury that in judging credibility 'you shall take into consideration' certain things including demeanor, conduct and appearance on the witness stand, interest, motives, relationship, the likelihood of the testimony and 'all other facts or circumstances given in evidence.' These are guidelines which the courts have approved repeatedly. By them the court informed the jury that they should not determine arbitrarily and without reason the credibility and value of testimony. These are criteria which the experience of mankind has demonstrated to be valid. As the court pointed out in State v. Willard, 346 Mo. 713, 142 S.W.2d 1046, 1051, the jury may accept or reject all or any part of the testimony of a witness as they find it...
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Cope v. Thompson
...and that this prerogative embraces the right to disbelieve testimony even though it be unimpeached and uncontradicted. Mayer v. Orf, 404 S.W.2d 733, 735(4) (Mo.1966); Robinson v. St. John's Medical Center, Joplin, 508 S.W.2d 7, 11(3) The only eyewitness testimony concerning the speed of the......
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Jordon v. Johnson, 8562
... ... Hogue, Mo.App., 381 S.W.2d 599, 602 ... 3 Kickham v. Carter, Mo., 314 S.W.2d 902, 905(1); Bell v. Pedigo, Mo., 364 S.W.2d 613, 616(4); Rawley v. Eilermann Transfer Co., Mo.App., 390 S.W.2d 937, 940(3); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(9); Mayer v. Orf, Mo., 404 S.W.2d 733, 734--735(3, 4) ... 4 Hendershot v. Minich, Mo., 297 S.W.2d 403, 408(7); Wofford v. St. Louis Pub. Serv. Co., Mo., 252 S.W.2d 529, 531(2); Silver v. Westlake, Mo., 248 S.W.2d 628, 632(1, 2); Newell v. Peters, Mo.App., 406 S.W.2d 814, 821(9) ... 5 Daniels v. Smith, ... ...
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State ex rel. State Highway Commission v. Daigh
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Haymes v. Swan, 8558
... ... Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 28 ... While the jury was at liberty to believe none, part, or all of the testimony of any witness (Mayer v. Orf, Mo., 404 S.W.2d 733, 734--735(3, 4), our instant concern is not with what the jury believed or disbelieved but whether there was evidence plaintiff failed to use the care of a very careful person in proceeding to command the right of way. Notes on Use, MAI 14.02, supra. There was evidence ... ...