Overton v. Tesson
| Decision Date | 12 March 1962 |
| Docket Number | No. 48761,No. 1,48761,1 |
| Citation | 355 S.W.2d 909 |
| Parties | Lowell Clyde OVERTON, a Minor, By Basil Overton, his father and Next Friend, Respondent, v. Richard TESSON, Appellant |
| Court | Missouri Supreme Court |
Heneghan, Roberts & Cole and John J. Cole, St. Louis, for defendant-appellant.
Gray & Jeans, James W. Jeans, St. Louis, for plaintiff-respondent.
HOUSER, Commissioner.
This is a guest case arising out of an automobile accident which occurred in Illinois. Lowell Clyde Overton, a passenger, filed suit against Richard Tesson, owner of the automobile, for personal injuries, charging that due to the wilful and wanton misconduct of defendant in the manner in which he operated the vehicle it left the street and collided with objects off the traveled portion. Defendant denied generally, and pleaded several affirmative defenses, one of which was that plaintiff's injuries were directly caused by his own wilful and wanton misconduct and that under the circumstances plaintiff's actions exhibited a reckless disregard for his own safety, which contributed to cause his injuries. Plaintiff sued for $37,500. There was a verdict for defendant. The trial court sustained plaintiff's motion for new trial on the ground that the court erred in giving Instruction No. 6. Defendant appealed from the order sustaining the motion, and on appeal contends that the court did not so err and asks for the reinstatement of the verdict and judgment.
Defendant, plaintiff and another young man left plaintiff's house in the City of St. Louis in defendant's Chevrolet about 9:15 p. m. on the night in question. They drove to defendant's sister's house near Granite City, Illinois. After 15-30 minutes at the sister's house the three drove to plaintiff's brother's house in O'Fallon, Illinois. It had been raining. During the evening it started freezing and the rain turned to sleet and snow. After a couple of minutes at the brother's house the three went to Ray's Bar, two miles from O'Fallon, for 30 to 45 minutes, eating and playing pinball machines. According to plaintiff the three went from Ray's Bar to Slick's Lakeside Night Club at Eagle Park, Illinois, arriving about 11:30 p. m. or 12:00 midnight, and staying there 45 minutes or an hour. When they left Slick's Club they walked across the street to a parking lot and entered defendant's automobile. Plaintiff got in the back seat and fell asleep. Plaintiff testified, 'I was passed out.' The next thing he recalled was hearing defendant 'hollering for someone to help him out of the car.' Plaintiff had no knowledge of the manner in which defendant was operating the automobile at the time of and immediately prior to the occurrence, and knew nothing about defendant's driving from the time he got in the car at Slick's until after the accident happened. Defendant testified they started home directly from Ray's Bar and did not go to Slick's Club at all. There was a direct conflict with respect to the matter of drinking. Plaintiff testified all three had 'a couple of beers' at defendant's sister's house; four or five draught beers each at Ray's; and that each had a bottle of beer and a shot of cognac and some setups with whiskey at Slick's; that plaintiff was feeling pretty sick and 'couldn't think too good' and that as to defendant, 'I guess you could say he was drunk.' An objection was sustained 'as to what he guesses.' This appears in the transcript:
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Defendant testified no one had anything intoxicating to drink at his sister's house; that none of them had anything to drink at Ray's Bar; denied that any of them had gone to Slick's Lakeside Club, and testified none of them had anything to drink in his presence or to his knowledge on the evening of the accident. Defendant's version of the accident: Defendant was driving his automobile down the center of oneway Ninth Street in East St. Louis, Illinois at about 20 to 25 m. p. h. The streets were glazed. The ice was in patches. The automobile hit an icy patch, swerved and slid sideways. The back end of his left front fender hooked the rear end of a car parked on the left-hand side of the street, causing defendant's car to strike the curb. Defendant had no control over the car after it hit the patch of ice. He had been driving the car normally and did nothing unusual in the operation of the automobile immediately before the skidding. After the accident the automobile's left front wheel was up on the sidewalk, and the bumper was up against an iron fence which it had partially pushed over.
Instruction No. 6 follows: 'The Court instructs the jury that if you find and believe from the evidence that plaintiff participated about equally with defendant in the drinking of beer and whiskey on the occasion in question, and if you further find and believe that thereafter plaintiff voluntarily rode as a guest passenger in defendant's automobile and that he went to sleep in the back seat of said automobile at a time when he knew the nature and extent of drinking on the part of defendant and the icy condition of the streets as mentioned in evidence, if you so find, and if you further find that such conduct on the part of plaintiff exhibited a reckless disregard for his own safety, then you are instructed that plaintiff is not entitled to recover against defendant and your verdict shall be in favor of defendant Richard Tesson.'
Ground No. 3 of plaintiff's motion for new trial (the basis for the action of the trial court) follows:
On appeal defendant contends there was no error in giving Instruction No. 6, offered by defendant; that a defendant has the right to submit as many defenses as he has and therefore submission of plaintiff's reckless disregard for his own safety was proper even though portions of the instruction were based upon plaintiff's own testimony that both parties were drinking, which was inconsistent with defendant's testimony and evidence denying any drinking.
Plaintiff contends the court correctly ruled it error to give Instruction No. 6; that defendant's unequivocal testimony that neither had consumed any intoxicants is a judicial admission foreclosing him from submitting a defense based upon intoxication of both parties; that it is error to submit inconsistent defenses; that defendant cannot take advantage of plaintiff's testimony that is inconsistent with defendant's own testimony and theory of defense.
The trial court's ruling that Instruction No. 6 was erroneous because contrary to the theory of the defense was based upon two cases, Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24, and Picarella v. Great Atlantic & Pacific Tea Co., Mo.App., 316 S.W.2d 642, both of which were subsequently overruled in Tomlin v. Alford, Mo.Sup., 351 S.W.2d 705, a case decided...
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