Pittock v. Gardner
| Decision Date | 08 December 1975 |
| Docket Number | No. 59128,59128 |
| Citation | 530 S.W.2d 217 |
| Parties | Jeannette Kay PITTOCK, Plaintiff-Appellant, v. John William GARDNER, Executor of the Estate of Mary Loomis Gibson, Deceased, Defendant-Respondent. |
| Court | Missouri Supreme Court |
Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Wear & Wear, Springfield, for plaintiff-appellant.
Karl Blanchard, Blanchard, VanFleet, Robertson & Dermott, Joplin, Lowther, Cassity, Ferguson & Freeman, Springfield, for defendant-respondent.
This action was instituted by plaintiff and her infant son to recover damages for personal injuries resulting from an automobile collision. Defendant, executor of the estate of Mary Loomis Gibson, filed a counterclaim against Mrs. Pittock seeking damages for decedent's alleged wrongful death. See Section 537.080(3). 1 The jury found for defendant on plaintiffs' claims and also returned a verdict for defendant in the sum of $3,000 on the counterclaim. No appeal was taken by the son but Mrs. Pittock (hereinafter referred to as 'plaintiff') appealed to the Springfield District of the Court of Appeals.
On appeal plaintiff contends that the trial court erred in giving Instructions 6, 8 and 12. The appeals court concluded that No. 6 was not prejudicially erroneous and that it was unnecessary to consider 8 and 12 because they related to the counterclaim. Sua sponte the court held that the counterclaim did not state a claim for relief and that the evidence would not support a wrongful death claim. The judgment was reversed and the cause remanded with certain directions which need not be recited here. Upon application of plaintiff we ordered the case transferred and will decide it here the same as on original appeal. Art. V, Sec. 10, Mo.Const., V.A.M.S. We granted transfer because we were concerned about the effect of the 1973 revision of MAI 17.13 upon the contents of contributory negligence Instruction No. 6. We affirm the judgment for defendant on plaintiff's claim and reverse the judgment on the counterclaim.
It was undisputed that the northbound Ford driven by plaintiff collided head-on with the southbound Rambler operated by defendant's decedent when the Ford was on the west half or wrong side of the duallaned highway. Plaintiff testified that as the two vehicles were approaching, the Rambler was in the northbound lane; that plaintiff, with the Ford 'under control at all times,' drove onto the left or west half of the roadway to avoid a collision, but that decedent then drove the Rambler to its right side of the highway, thereby causing the casualty to occur on plaintiff's wrong side of the road. To the contrary, defendant's theory was that decedent did not drive the Rambler on the wrong side of the road at any time. Mrs. Gibson, the driver of the Rambler, was killed as were the two other occupants of her car. The six occupants of plaintiff's car were all injured, but none were killed.
Plaintiff's case was submitted by Instruction No. 4 which reads as follows:
'Your verdict must be for plaintiff, Jeannette Kay Pittock, on said plaintiff's claim for damages if you believe:
'First, Mary Loomis Gibson drove on the wrong side of the road, and
'Second, Mary Loomis Gibson was thereby negligent, and
'Third, as a direct result of such negligence Jeannette Kay Pittock sustained damage, unless you believe Jeannette Kay Pittock is not entitled to recover by reason of Instruction Number 6.
'(Not in MAI, tendered by plaintiff, Jeannette Kay Pittock.)'
The submission of her son's claim was in the same language except for the reference to Instruction No. 6.
The instruction which is the basis of plaintiff's principal complaint, No. 6, reads as follows 'Your verdict must be for the defendant on plaintiff Jeanette Pittock's claim for damages, whether or not Mary Loomis Gibson was negligent, if you believe:
'First, plaintiff Jeanette Pittock drove on the wrong side of the road, and
'Second, plaintiff Jeanette Pittock was thereby negligent, and
'Third, such negligence of plaintiff Jeanette Pittock directly caused or directly contributed to cause any injuries and damages plaintiff Jeanette Pittock may have sustained.
'(M.A.I. 32.01 Modified, Submitted by Defendant)'
Plaintiff says that the court erred in giving No. 6 because it was not applicable and that there was an applicable approved instruction 'in the book' which should have been used. She points to the fact that Rule 70.01(b, c) provides that if MAI contains an applicable instruction it 'shall be given to the exclusion of any other on the same subject' and '(t)he giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.'
It is plaintiff's contention that MAI 17.13 should have been given. Prior to July 1, 1973, that instruction, which was designated for wrong side of the road submissions, read 'Defendant drove on the wrong side of the road.' The notes on use thereunder stated: The Committee's Comment provided that: '' The statement of law last quoted was changed by the decision in Friederich v. Chamberlain, 458 S.W.2d 360, at page 366 (Mo.1970) where we stated that:
Because of Friederich and certain other decisions this court and its committee on jury instructions considered it advisable to revise 17.13 which was accomplished and approved, effective July 1, 1973, and published in the 1973 pocket parts of MAI. That revised instruction and the comment thereunder reads as follows: '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.
'Committee's Comment (Supplemental)
(The instant case was tried in November, 1973).
Plaintiff points to Comment 1 and says that it means that this instruction must be used in all wrong-side-of-the-road submissions. Defendant, in answer to that contention, says that he used MAI 32.01 which is approved for use in contributory negligence submissions. He also points out that Comment 1 under 17.13 does not contain the word 'all'...
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...to agree that Roy's parents suffered no damage by reason of his death. It is true, as ruled in our recent case of Pittock v. Gardner, 530 S.W.2d 217(5) (Mo.1975), that where the executor sues for the benefit of the collateral heirs he is required to allege and prove that the beneficiaries s......
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...the standard of care was thus properly set by the jury. See, e.g., Scott v. Club Exchange Corp., 560 S.W.2d 289 (Mo.1978); Pittock v. Gardner, 530 S.W.2d 217 (Mo.1975); Friederich v. Chamberlain, 458 S.W.2d 360 (Mo.1970). In cases like the present case, involving a violation of a statutory ......
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