Olsten v. Susman, 50574

• Decision Date: 10 May 1965
• Docket Number: No. 2,No. 50574,50574,2
• Citation: 391 S.W.2d 331
• Parties: William OLSTEN, Respondent, v. Louis B. SUSMAN, Appellant
• Court: Missouri Supreme Court

Page 331

391 S.W.2d 331

William OLSTEN, Respondent, v. Louis B. SUSMAN, Appellant.

No. 50574.

Supreme Court of Missouri, Division No. 2.

May 10, 1965.

Rehearing Denied June 14, 1965.

Sherman Landau, St. Louis, for respondent.

Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for appellant.

STOCKARD, Commissioner.

In plaintiff's suit for damages in the amount of $37,500 for personal injuries resulting from an automobile collision, the jury verdict was for defendant. The trial court thereafter granted plaintiff a new trial 'on the ground the Court erred in giving Instruction No. 3,' and defendant has appealed. This action arose out of the same automobile collision which gave rise to the appeals decided in Olsten v. Susman, Mo., 362 S.W.2d 612, and Olsten v. Susman, Mo., 391 S.W.2d 328, No. 50,753, handed down concurrently herewith. The facts of the collision are not material to the issues on this appeal, but they may be found at 362 S.W.2d 612.

Plaintiff submitted his case on primary negligence by Instructions No. 1 and No. 2, and humanitarian negligence by Instruction No. 5. Instruction No. 3 submitted contributory negligence on the part of the plaintiff. The trial court did not set forth the reason why it considered this instruction to be erroneous, but in supporting the action of the trial court in granting a new trial plaintiff asserts on this appeal that it 'wrongfully injected primary negligence into plaintiff's humanitarian rule submission.'

Plaintiff does not contend that Instruction No. 3 is erroneous when considered only in connection with his two instructions submitting primary negligence. It follows substantially the instruction approved in Whaley v. Zervas, Mo., 367 S.W.2d 611. His contention is that since he submitted both primary and humanitarian negligence, contributory negligence on his part was injected as a defense to his humanitarian negligence submission by the statement at the beginning of Instruction No. 3 that plaintiff 'was under an obligation to exercise the highest degree of care to keep a lookout for the approach of other vehicles at the intersection * * *.'

By submitting both humanitarian and primary negligence in a case plaintiff cannot deprive defendant of the defense of contributory negligence as to the primary submission. Therefore, the determinative question in this case is whether Instruction No. 3 was worded so as to cause a jury of reasonable intelligence and understanding to believe that the contributory negligence therein submitted could constitute a defense to the humanitarian negligence submitted by Instruction No. 5.

After reciting the duty of defendant pertaining to lookout, as above set forth, Instruction No. 3 hypothesized facts, supported by the evidence, from which the jury could find that plaintiff was contributorily negligent. It was then stated that if the jury so found, 'you are instructed that you must find in favor of defendant on the issue submitted to you in Instructions No. 1 and 2 * * *.' In this manner the statement of the duty of plaintiff to exercise the highest degree of care to keep a lookout was limited to the issue of primary negligence submitted by the plaintiff. Instruction No. 6 was a converse instruction of Instruction No. 5 submitting humanitarian negligence, and in that manner the jury was told what it could consider as a defense to the submission of humanitarian negligence. When Instruction No. 3 is read in its entirety, and not just the isolated statement pertaining to the duty of plaintiff to keep a lookout which is all plaintiff has set out in his brief, and when Instruction No. 3 is read in connection with the other instructions it is perfectly clear that the statement therein pertaining to plaintiff's duty to keep a lookout was to be considered by the jury only as a defense to the primary negligence submitted in Instructions Nos. 1 and 2, and not as a defense to the humanitarian negligence submitted in Instruction No. 5. We fail to see how any jury to reasonable intelligence and understanding could have been caused to believe otherwise, and the instruction was not erroneous for the reason now advanced by plaintiff in support of the action of the trial court in granting a new trial.

Plaintiff relies on Endermuehle v. Smith, Mo., 372 S.W.2d 464; Sheering v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; and Keithley v. St. Louis Public Service Co., Mo.App., 379 S.W.2d 149. In each of these cases plaintiff submitted his case solely on humanitarian negligence, and there was no language in defendant's instruction limiting its application as in this case.

Plaintiff sets forth in his brief two other matters assigned as error in his motion for new trial which he asserts should have been sustained, although the order of the trial court granting a new trial made no mention of them.

Plaintiff asserts that prejudicial error was 'injected into the trial of this case' when defendant's counsel 'deliberately and intentionally' informed the jury that in a different suit arising out of the same collision brought by plaintiff's mother against the same defendant the jury had returned a verdict for defendant.

Some background information is helpful. When defendant was testifying on cross-examination, counsel for plaintiff sought to impeach him by using what he referred to as his testimony at 'the hearing of the mother's claim on October 26, 1961.' Counsel for plaintiff also referred to 'the mother's case,' and he stated that defendant 'testified before the jury in that case.' The fact that the case of plaintiff's mother had previously been tried was placed before the jury by plaintiff.

On redirect examination the first question asked of defendant was this: 'With reference to the trial that was had out in Clayton before a jury when Mr. Olsten [plaintiff] testified and his mother testified, what did that jury decide as to whether you were at fault or not, Mr. Susman?' No answer was made to this question. Out of the presence of the jury plaintiff objected and moved 'that the jury be instructed to disregard that question put to him by counsel.' He also said: 'I further move for a mistrial on the ground that plaintiff has been gravely prejudiced by the putting of that question to this party in the presence and hearing of the jury, and thereby indicating...