Montgomery v. Ross
| Decision Date | 14 March 1949 |
| Docket Number | 41113 |
| Citation | 218 S.W.2d 99 |
| Parties | Charles Lee Montgomery and Lucille E. Montgomery, Appellants, v. William Donald Ross, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of Saline County, Civil Appeal, Judge Phil H. Cook
Affirmed
Charles L. Montgomery and Lucille E. Montgomery, his wife sued William D. Ross for $15,000 on account of the death of their son Charles Wayne Montgomery who lost his life while riding in an automobile driven by Ross. The jury returned a verdict for defendant. This appeal questions the propriety of instructions given on behalf of defendant.
Charles W. Montgomery, who had not reached his twentieth birthday, and William D. Ross, who was about eighteen, were friends. About 8:00 p.m. August 28, 1946, they left Marshall, Missouri, in Ross' father's Plymouth automobile and drove to Big Ben tavern, about three miles east of Boonville. They remained there about three hours, dancing and having refreshments. About 12:30 a.m. Ross drove Joan Day and Montgomery to her home in Boonville and then the two young men started for Marshall. They proceeded over U. S. Highway No. 40 to No. 41, a "black top" pavement passing through Arrow Rock.
As they were rounding the curve, we understand, to the north at the outskirts of Arrow Rock the automobile went out of control, struck a culvert, overturned, and threw both occupants out. The boys were unconscious. They were taken to a hospital, where Ross regained consciousness. Charles Montgomery died that day from injuries received.
Ross testified he was driving 30 to 40 miles an hour through Arrow Rock, although there was testimony he said he was traveling 50 to 60 miles an hour at the time; that the right front wheel struck some loose gravel or chat on and near the right edge of the black top; and that he felt this but never paid enough attention that night to see the gravel; that the back end of the automobile started coming around when the car struck the loose gravel; that the car continued forward but, instead of following the curve of the road to the north, crossed the road toward the south practically straight ahead and went into the ditch on the south side of the road.
There was a heavy dew that night, making the pavement moist and causing tire tracks to be plainly visible on the black top. There uas evidence that the car traveled between 100 and 150 feet in crossing from its right to the left side of the highway, where it struck a culvert and went into the ditch and came to a stop about 40 feet beyond the culvert. One witness testified: "I didn't get the idea he put on his brakes; just looked like he was sliding sideways."
Plaintiffs' separate verdict directing instructions predicated a recovery on defendant's negligence in operating the automobile while "drowsy" (P-2), or in failing to have it under reasonable control or in driving it at an excessive speed (P-3), or in operating it while in a defective condition, i. e., with a "defective steering apparatus" (P-4).
Defendant's contributory negligence instruction, D-1, was to the effect that if Charles Montgomery knew or by the exercise of ordinary care could have known that Ross "was intoxicated, or that he was drowsy and not awake to his driving, or drove at a reckless and dangerous speed, or that the car was in a defective condition as claimed" and that Montgomery acquiesced therein and made no protest thereto, but could have timely done so and avoided being injured, and thereby failed to exercise ordinary care for his own safety, and such action directly contributed to his injuries, "then regardless of any other facts," the verdict should be for defendant.
Plaintiffs say instruction D-1 is erroneous in that there was no sufficient evidence on which to submit contributory negligence respecting excessive speed or drowsiness or the defective condition of the car, and that there was no plea of contributory negligence covering the defective car. Defendant answers specifically stating that there was sufficient evidence, established by plaintiffs' witnesses, to submit each of said issues of contributory negligence and that each said defense, including the defective condition of the car, was pleaded in defendant's answer.
We do not develop each of the above contentions; because: In addition to requiring findings that defendant was negligent in the specific respects submitted, each of plaintiffs' said instructions also required a finding that Charles Montgomery was in the exercise of ordinary care for his own safety before returning a verdict for plaintiffs. Plaintiffs' instruction P-4, submitting a recovery on the defective condition of the "steering apparatus" of the automobile, also conditioned a plaintiffs' verdict on the additional findings: " * * that the said Charles Wayne Montgomery neither knew thereof, nor by the exercise of ordinary care could have known thereof prior to the time he entered said motor vehicle at Boonville to return to Marshall, as aforesaid, nor at any time prior to its overturning * * ." We have said a plaintiff may not successfully urge prejudicial error on the ground a defendant's contributory negligence instruction is broader than the pleadings or the evidence in instances wherein plaintiff's instruction conditions a recovery on plaintiff's freedom from contributory negligence. The rule is well stated in Szuch v. Ni Sun Lines, 332 Mo. 469, 475 [1], 58 S.W.2d 471, 472 [1,2]. See Parker v. St. Louis S. F. Ry. Co. (Mo.), 41 S.W.2d 386, 388 [4]; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137, 1139; Lindquist v. Kansas City Publ. Serv. Co., 350 Mo. 905, 169 S.W.2d 366, 369. In the instant case plaintiffs required the jury to find that Charles Montgomery was free from contributory negligence, including specific findings that he did not know and could not have known of the defective condition of the automobile. We are not indicating that defendant failed to plead or that the evidence failed to establish the contributory negligence submitted; as even if so, under the decisions, plaintiffs may not successfully urge prejudicial error in the circumstances of record and it is not necessary to develop the details of the pleadings or the evidence.
Instruction D-1 is not erroneous on the ground plaintiffs' instructions authorized a recovery on a finding Ross negligently failed to keep the automobile under reasonable control and that said element of defendant's negligence was omitted in said instruction on contributory negligence. A finding by the jury of one or more of the submitted grounds of contributory negligence was sufficient to defeat plaintiffs' action based on defendant's primary negligence, as a defendant's freedom from negligence is not one of the essentials of his defense of contributory negligence and Missouri law does not undertake to apportion or weigh the concurrent contributing negligence of a plaintiff and a defendant. State ex rel. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 918[5]; Callahan v. Warne, 40 Mo. 131, 136; Hogan v. Citizens Ry. Co., 150 Mo. 36, 54 (7), 51 S.W. 473, 478(7); Smithwick v. Hall & Upson Co., 59 Conn. 261, 12 L. R. A. 279.
Plaintiffs say instruction D-1 "erroneously directs a verdict for defendant on an abandoned issue, that of intoxication of the defendant." They argue since they did not predicate a recovery on defendant being intoxicated, although pleaded in their petition, this issue was abandoned by them and it was error for defendant to inject it into the case and instruct thereon. Defendant affirmatively pleaded if the death of plaintiffs' son were caused by defendant being intoxicated and unable to operate said automobile properly as charged in plaintiffs' petition, their son acquiesced therein, made no protest in regard thereto, and therein was guilty of negligence contributing to his death. Plaintiffs introduced evidence from which the jury could find that defendant was intoxicated; that defendant's intoxication directly contributed to the accident; and that plaintiffs' son knew thereof.
Plaintiffs are privileged to submit tort actions upon pleaded and proved negligence of the defendant. Defendants are accorded equal rights. Laws 1943, p. 370, §§ 39-42; Mo. R. S. A., §§ 847.39-847.42; Parker v. St. Louis-S. F. Ry. Co. (Mo.), 41 S.W.2d 386, 388[5]; Borgstede v. Waldbauer, 337 Mo. 1205, 1215, 1217, 88 S.W.2d 373, 377 [12, 13, 15]; Doherty v. St. Louis Butter Co., 339 Mo. 996, 1005[4], 98 S.W.2d 742, 745[4-6]; Mendenhall v. Neyer, 347 Mo. 881, 891, 149 S.W.2d 366, 372; Semar v. Kelly, 352 Mo. 157, 162, 176 S.W.2d 289, 291. While a plaintiff may abandon a submissible ground of recovery, by so doing he cannot deprive defendant of a pleaded and proved defense. The abandonment of submissible defenses is defendant's prerogative. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64, 70.
Plaintiffs' cases differ in that they do not involve instructions submitting a pleaded and proved defense defeating plaintiffs' action, if found, as here. Wallace v. Burkhart Mfg. Co., 319 Mo. 52, 3 S.W.2d 387, 390[2, 3, 5]; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113, 119[6, 7]; Unterlachner v. Wells (Mo.), 278 S.W. 79, 84[8].
Instruction D-3 was to the effect the jury should not "consider as damages or elements of recovery any mental or physical pain if any, on the part of deceased Charles Montgomery, or any bereavement or grief on the part of his parents, and any consideration of the aforesaid as elements of recovery" would be improper. Plaintiffs, conceding the instruction proper so far as it relates to "damages," say the words "or elements or recovery" "seem to us to mean something different from damages" and exclude consideration of any pain suffered by Charles Montgomery in determining defendant's...
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