McCroskey v. Marshall
| Decision Date | 19 February 1975 |
| Docket Number | No. 9640,9640 |
| Citation | 519 S.W.2d 717 |
| Parties | Dorma Lou McCROSKEY and Loren McCroskey, Plaintiffs-Appellants, v. Sarah Ann MARSHALL, a minor, by her guardian ad litem, C. S. Marshall, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Kenneth H. Reid, Turner, Reid & Duncan, John R. Lewis, Springfield, for plaintiffs-appellants.
Devon F. Sherwood, Sherwood & Bruer, Harold J. Fisher, David W. Ansley, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent.
Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.
Dorma Lou McCroskey and her husband, Loren McCroskey, brought this action against Sarah Ann Marshall. The petition was in two counts. In Count I Dorma Lou sought damages for personal injuries allegedly sustained by her as a result of an automobile accident which occurred on May 6, 1971, in Greene County, Missouri. In Count II Loren asserted his derivative claim stemming from the injuries to Dorma Lou. The defendant filed a counterclaim against Dorma Lou for defendant's personal injuries. Nine members of the jury found against plaintiffs on their petition and awarded defendant Sarah $12,500 on her counterclaim, and judgment was entered accordingly. Dorma Lou and her husband appeal from that judgment.
In their excellent brief appellants contend that the trial court erred in giving instructions 3 and 4, both of which were tendered by Sarah.
The evidence of both sides was consistent with the following: The incident occurred on Highway AB, which has two lanes separated by an 'alternating center line.' Before the vehicles were within 300 feet of each other, Dorma Lou was driving an Oldsmobile south in the southbound lane and Sarah was driving a Plymouth north in the northbound lane. The impact between the two vehicles took place at or near the west edge of the southbound lane.
The respective movements of the vehicles after they were within 300 feet is the area where the testimony is in direct conflict and on which liability hangs.
Dorma Lou's version
Dorma Lou first saw the Plymouth when the Plymouth came over the hillcrest located a short distance south of the point of impact. When she first saw the Plymouth the front wheels of the Plymouth were across the center line 'headed toward me.' Dorma Lou's speed was 40 to 50 miles per hour and the speed of the Plymouth was '65 to 70.' The driver of the Plymouth 'was looking behind and never did look around.' Dorma Lou honked, applied her brakes and swerved to the right. Dorma Lou's car was in the southbound lane at all times prior to the moment of impact.
Sarah's version
Sarah was driving the Plymouth and her younger sister Carol was with her. Sarah has no memory of the particulars of the accident. Carol, testifying on behalf of Sarah, stated: 'As we were coming out of the dip, the Oldsmobile was coming straight out on our side of the road'; the Oldsmobile was completely in the east lane; with respect to how far the vehicles were apart when she first saw the Oldsmobile in that position, The Plymouth got completely over on the other side of the road. The speed of the Plymouth was 45 to 50.
Thus it was the trial theory of Dorma Lou that her vehicle was at all times in its proper lane and that the only vehicle to cross the center line was the Plymouth and that such crossing was negligence on the part of Sarah.
On the other hand, it was the theory of Sarah that the center line was crossed three times, twice by the Oldsmobile and once by the Plymouth, and that the Plymouth's maneuver was justified because it constituted an attempt to dodge the Oldsmobile which was improperly occupying the northbound lane.
The propriety of Instruction No. 4
Instruction 4 (omitting the markings with regard to tender and MAI number) reads as follows:
Your verdict must be for defendant Sarah Ann Marshall on her counterclaim for damages if you believe:
First, plaintiff Dorma Lou McCroskey drove on the wrong side of the road, and
Second, plaintiff Dorma Lou McCroskey was thereby negligent, and
Third, as a direct result of such negligence defendant Sarah Ann Marshall sustained damage unless you believe defendant Sarah Ann Marshall is not entitled to recover by reason of Instruction No. 5.'
Instruction 5, to which instruction 4 refers, was tendered by Dorma Lou and submitted, as an affirmative defense to Sarah's counterclaim, the contributory negligence of Sarah.
Dorma Lou attacks instruction 4 on four grounds.
As her first ground Dorma Lou says that if instruction 4 is based on MAI 17.13 '(t)he language used . . . was not correct as such language was changed prior to trial of this case, and such (instruction) thus improperly deviated from the language prescribed by the Missouri Supreme Court.'
The trial of this case took place on October 17 and 18, 1973. On December 19, 1972, the Supreme Court approved and adopted a revision of MAI 17.13, the order reciting that the revised version 'must be used on and after July 1, 1973.' See Missouri Approved Jury Instructions, 1973 Pocket Part, p. IX. This opinion will refer to the pre-July 1, 1973 version of MAI 17.13 as 'old 17.13' and to the post-July 1, 1973 version of MAI 17.13 as 'new 17.13.'
Compare old MAI 17.13 () with new MAI 17.13 ():
Old 17.13
Your verdict must be for plaintiff if you believe:
First, defendant drove on the wrong side of the road, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage.
Your verdict must be for plaintiff if you believe:
First, defendant's automobile was on the wrong side of the road at the time of the collision; and
Second, the defendant was thereby negligent; and
Third, as a direct result of such negligence plaintiff sustained damage.
Note the change in wording in paragraph First. Instruction 4 obviously differs from new 17.13 but it was necessary that it do so. New 17.13 simply does not fit Sarah's version of the accident, for the reason that, in order for Sarah to use new 17.13, paragraph First of the instruction would read: 'First, plaintiff Dorma Lou McCroskey's automobile was on the wrong side of the road at the time of the collision.' Such an instruction is completely inconsistent with Sarah's version. Under Sarah's version, and under Dorma Lou's version, Dorma Lou's automobile was not on the wrong side of the road at the time of the collision.
New 17.13 does fit the version of Dorma Lou and Dorma Lou properly used new 17.13 in her verdict-directing instruction submitting the claim contained in Count I of the petition.
Even Dorma Lou agrees that Sarah could not use new 17.13. In her brief Dorma Lou states:
Thus, it is clear that Dorma Lou is not complaining about Sarah's non-use of new 17.13. Rather, Dorma Lou is complaining that instruction 4 is based on old 17.13 and that old 17.13 must no longer be used.
'Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.' Rule 70.01(e) V.A.M.R. Rule 70.01(a) reads in part: 'All instructions shall be submitted in writing and shall be given or refused by the court according to the law and the evidence in the case.'
If old 17.13 had been a part of MAI at the time of this trial, it would have applied to Sarah's version and she could have utilized it. But when the trial took place, new 17.13 was in effect and old 17.13 had been taken out of MAI. Thus, there was no applicable MAI for Sarah to use and it was necessary for her to modify new 17.13 'to fairly submit the issues' in the particular case (Rule 70.01(e), supra) or prepare a 'not in MAI' instruction. Instruction 4 may be viewed as a 'not in MAI' instruction or it may be viewed as a modified version of new 17.13. If considered to be the latter, the modification was necessary and proper because Sarah's version demanded it. If instruction 4 is considered to be a 'not in MAI' instruction, this court holds that it is a proper instruction for submitting Sarah's version.
This is an unusual situation. In almost all cases where an MAI instruction has undergone revision, instruction preparers should conclude that the old form may no longer properly be used. To hold otherwise would be to ignore the revision itself. But MAI 17.13 has had a unique background, a study of which, viewed in light of Sarah's version, leads to the conclusion that Sarah's use of it was proper. It is more accurate to state that instruction 4 was proper, not because it happened to be the same as old 17.13, but because it is authorized under Rule 70.01(e) V.A.M.R.
It is significant that the 'Committee's Comment (Supplemental)' under new 17.13 refers to Friederich v. Chamberlain, 458 S.W.2d 360 (Mo. banc 1970). In that case Gail Friederich and Noah Chamberlain were the drivers of the two vehicles which collided. Gail sued Noah and Noah counterclaimed. The jury found for Noah on Gail's claim. However, the trial court, with respect to Noah's claim, had sustained Gail's motion for a directed verdict and therein lay the...
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State v. Oliver
...the appropriate jury instruction is that which is in effect at the time of trial. See Rule 28.01; see also McCroskey v. Marshall , 519 S.W.2d 717, 721 (Mo. App. 1975) ("In almost all cases where an MAI instruction has undergone revision, instruction preparers should conclude that the old fo......
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Lindsey v. Pettus, 41706.
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...therefore rule this point against appellants. Judgment affirmed. STEPHAN, P. J., and STEWART, J., concur. 1 See: McCroskey v. Marshall, 519 S.W.2d 717, 719-720 (Mo.App.1975) and Pittock v. Gardner, 530 S.W.2d 217, 219-220 (Mo.1975) for the changes made in M.A.I. 17.13 and the reasons for sa......
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