Nugent v. Hamilton & Son, Inc., 52512
| Decision Date | 11 September 1967 |
| Docket Number | No. 52512,No. 1,52512,1 |
| Citation | 417 S.W.2d 939 |
| Court | Missouri Supreme Court |
| Parties | Glen NUGENT, Appellant, v. HAMILTON & SON, INC., a Corporation, and Gene Lewis, Respondents |
Jones & Stillman, Kennett and James E. Reeves, Ward & Reeves, Caruthersville, for plaintiff-appellant.
Routh & Turley, Dewey Routh, Rolla, for defendants-respondents.
HOUSER, Commissioner.
Action by Glen Nugent for $600,000 damages for personal injuries and medical expenses alleged to have been sustained as a result of the negligent operation of a tractor-trailer truck owned by defendant Hamilton & Son, Inc. and driven by defendant Gene Lewis. Following a jury verdict for defendants and the overruling of his motion for new trial plaintiff appealed.
On this appeal plaintiff seeks a reversal of the judgment and a remand for a newtrial on two grounds: error in the giving of certain instructions for defendant, and error in refusing to sustain plaintiff's challenge of juror Brown for cause.
Plaintiff submitted his case to the jury by way of a single verdict directing instruction (No. 2) under the humanitarian doctrine, counting upon failure to slacken speed and swerve. Defendants submitted their defense by Instructions Nos. 7, 8 and 9. All of these were converse instructions. We set them out verbatim:
'Your verdict must be for defendants unless you believe:
'First, defendant Lewis knew, or by using the highest degree of care could have known, of plaintiff's position of immediate danger, and
'Second, at the moment when defendant Lewis first knew, or by using the highest degree of care could have known, of plaintiff's position of immediate danger, defendant then had enough time by using such care to have avoided injury to plaintiff by slackening his speed and swerving, and
'Third, defendant Lewis had the means available to him to have avoided injury to plaintiff by slackening his speed and swerving, and
'Fourth, defendant Lewis by using the highest degree of care could have avoided injury to plaintiff by slackening his speed and swerving without endangering himself, and
'Fifth, plaintiff sustained damage as a direct result of defendant's conduct.'
'Your verdict must be for defendants unless you believe that defendant Lewis by using the highest degree of care could have avoided injury to plaintiff by slackening his speed and swerving without endangering himself.'
'Your verdict must be for defendants unless you believe that at the moment defendant Lewis first knew, or by using the highest degree of care could have known, of plaintiff's position of immediate danger, defendant Lewis then had enough time by using such care to have avoided injury to plaintiff by slackening his speed and swerving.'
Plaintiff's first point is that the court erred in giving these three instructions because plaintiff submitted only one verdict directing instruction; that Nos. 7, 8 and 9 were verdict directing instructions which conversed No. 2 in three different ways, in violation of MAI No. 29.01 and Notes on Use of converse instructions under MAI No. 29.03, p. 251.
The General Comment on Converse Instructions, MAI No. 29.01, p. 245, states that 'A defendant is entitled to a converse of plaintiff's verdict directing instruction.' (Our emphasis.) Under Notes on Use, p. 249, it is clearly stated that:
Number 7 conversed every element of No. 2 except the element of immediate danger. Number 8 then repetitiously conversed (for the second time) the element of ability to avoid injury by slackening speed and swerving. Number 9 then repetitiously conversed (for the second time) the element of defendant's knowledge of plaintiff's position of immediate danger, and conversed (for the second time) the element of adequate time within which to act.
Numbers 8 and 9 clearly violate both the letter and the spirit of MAI No. 29.01 and the positive direction that ONLY ONE CONVERSE INSTRUCTION MAY BE GIVEN FOR EACH VERDICT DIRECTING INSTRUCTION. Slight deviations and inconsequential departures from MAI may be countenanced in some circumstances see Johnson v. West, Mo.Sup., 416 S.W.2d 162, but the giving of three converse instructions in response to one verdict directing instruction is a clear disregard of the mandate of MAI. This violation may not be condoned and constituted error. Under Civil Rule 70.01(c), V.A.M.R. it is our duty to judicially determine its prejudicial effect.
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