Reifsteck v. Miller
| Citation | 369 S.W.2d 229 |
| Decision Date | 08 July 1963 |
| Docket Number | No. 2,No. 49612,49612,2 |
| Parties | Lawrence REIFSTECK, by and through his next friend, Marie Reifsteck, Appellant, v. Guy MILLER, Kenneth Earl and Vivian Gregory (Limbach), Respondents |
| Court | United States State Supreme Court of Missouri |
Gregg Wm. Keegan St. Louis, John E. Bardgett, Clayton, for appellant.
Morris Chapman, Granite City, Ill., Fred J. L. Schuler, Clayton, Herbert E. Barnard, James E. McDaniel McDonald, Barnard, Wright & Timm, St. Louis, for respondent Guy Miller.
Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for respondent Vivian Gregory (Limbach).
STOCKARD, Commissioner.
Lawrence Reifsteck, plaintiff in the trial court and appellant here, brought this suit in two counts for damages for personal injuries sustained in an automobile collision occurring in Illinois on December 3, 1960. By Count I he sought $75,000 damages for the alleged negligence of three persons, Kenneth Earl, in whose automoble he was a passenger, and Guy Miller and Mrs. Vivian Gregory, the operators of two other automobiles. By Court II he sought an additional sum of $30,000 from Miller and Mrs. Gregory as punitive damages on the theory that their conduct was willful and wanton. The trial court directed a verdict at the close of plaintiff's evidence in favor of Earl and Mrs. Gregory on Count I, and in favor of Miller and Mrs. Gregory on Count II. After trial, and pursuant to jury verdict, judgment was entered in favor of Miller on Count I. Plaintiff has appealed. As to that part of the judgment in favor of Miller on Count I he assigns error in the giving of instructions and in the admission of evidence. He assigns no error as to that part of the judgment whereby a verdict was directed in favor of Earl and Mrs. Gregory on Count I. As to Count II he assigns error in directing a verdict in favor of Miller and Mrs. Gregory.
Respondent Miller has filed a motion to dismiss the appeal pursuant to Civil Rule 83.09, V.A.M.R., because of the failure of appellant's brief to comply with Civil Rule 83.05, V.A.M.R., in that the brief does not contain a fair and concise statement of the facts. We have decided to rule those matters which have been properly presented for appellate review on the merits, and so the motion to dismiss is overruled without further comment.
The collision occurred a few miles south of East St. Louis on Highway 3, a four-lane highway. The Earl automobiles was traveling north. According to witness Gaynor it was in the inside or passing lane, but witness Stillman said it was in the outside or curb lane. Behind it about three car lengths, but in the outside or curb lane, was the gaynor automobile. Both were traveling about 40 miles an hour. The Gregory and the Miller automobiles were traveling south on the highway between 40 and 45 miles an hour in the inside or passing lane with the Gregory automobile in front. The Johnson automobile was traveling south ahead of the Gregory and Miller automobiles. According to Mrs. Gregory, the Johnson automobile was in the passing or inside lane, but Michael Stuart, age eleven at the time of trial and who was a passenger in the back seat of the Johnson automobile, testified that it was preparing to turn right into a gasoline service station on the west side of the highway. Witness Stillman said it was in the outside or curb lane. According to Mrs. Gregory, when the Johnson automobile was 60 or 70 feet ahead of her it started to swerve to the left without a signal. After glancing in her rear view mirror she swerved to the right around the Johnson automobile. After she has passed she looked in her rear view mirror to see what it was going to do, and she saw the Miller automobile strike it. According to Miller, as he was traveling south in the passing lane, the automobile in front of him (Gregory automobile) made a swerve to the right, he then removed his foot from the accelerator preparatory to putting on his brakes, and a black 'object' suddenly appeared before him. He could not then tell if it was an automobile. He tried to apply his brakes and swing to the right at the same time, but he collided with the object. The hood of his automobile flew up and after careening to the right and then left he stopped on the east side of the northbound lane after colliding with an automobile which was being operated by Golda Moran who had stopped because of the collision ahead of her. Either immediately before or after the Miller and Johnson automobiles collided, and this is the principal factural dispute in the case, the Johnson automobile crossed into the northbound lane of the highway and collided, as one witness said, left headlight to left headlight, with the Earl automobile in which appellant was riding. It was from this collision that appellant sustained his injuries upon which this suit is based. After that collision the Earl automobile spun around and it and the Gaynor automobile collided. The essential factual question as to which appellant and respondent Miller differ is what caused the Johnson automobile to cross over into the northbound lane and into collision with the Earl automobile. This becomes important on this appeal because of the instructions, and we shall now review the provisions of those which are pertinent to the issue.
By Instruction No. 4, appellant's verdict directing instruction, the jury was told that if it found that Miller was operating his automobile southwardly on Highway 3 behind and to the rear of the Johnson automobile in the southbound portion of the highway; that plaintiff was a passenger in an automobile being operated northwardly in the northbound lane of the highway; that a collision occurred between the front of Miller's automobile and the rear of the Johnson automobile; that 'as a direct result of such collision, if you find that same took place, that the Johnson car was caused to cross into the northbound portion of Highway 3 and into the automobile in which plaintiff was riding as a passenger and if you further find that as a direct result thereof plaintiff was caused to be injured' while exercising ordinary care for his own safety; and that Miller by the exercise of ordinary care in keeping a lookout ahead for vehicles could have discovered the automobile of Johnson in time to have avoided the collision but failed to do so and thereby was negligent and that such negligence directly caused or directly contributed to cause plaintiff to be injured, then the verdict should be in favor of plaintiff. It is thus evident that appellant's theory was that Miller negligently struck the Johnson automobile while it was in the southbound lane of Highway 3 and caused it to cross into the northbound lane and into a subsequent collision with the Earl automobile.
Miller's Instruction No. 5 was as follows: 'The court instructs the jury that if you find from the credible evidence that on the occasion in question the Johnson automobile referred to in evidence was being operated southwardly on Highway 3 in the State of Illinois at or near the Phillips 66 Service Station mentioned in evidence, and if you further find that the Defendant Miller was operating his automobile southwardly on Highway 3 and in a direction toward the Johnson car and if you further find that plaintiff was a passenger in an automobile being operated northwardly in a northbound lane of said Highway 3 at or near the Phillips 66 Service Station mentioned in evidence, and if you further find that at said time and place mentioned in evidence the Johnson automobile collided with the automobile in which plaintiff was a passenger and that thereafter a collision occurred between the said Johnson automobile and defendant Miller's automobile, then you can not find for the plaintiff and your verdict must be for the defendant.'
Appellant assigns error in giving Instruction No. 5 for the following reasons: (a) there was a total absence of evidence 'that Johnson had ever collided with Earl before such was caused by Miller admittedly striking him;' (b) the instruction did not seek to controvert the failure on the part of Miller to keep a lookout as submitted in plaintiff's verdict-directing instruction, but sought to exonerate Miller on the ground that Johnson's negligence was the sole and proximate cause of plaintiff's injuries, and the instruction does not sufficiently hypothesize facts which would absolve Miller from fault; and (c) the instruction 'did not set any standard for the jury but left the entire matter for the jury to speculate about under most confusing instructions.'
Appellant asserts that Instruction No. 5 purports to be a sole cause instruction. Without going into detail it may be said that it does not meet the requirements of such an instruction. See Happy v. Blanton, Mo., 303 S.W.2d 633; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Ketcham v. Thomas, Mo., 283 S.W.2d 642. Therefore, the contentions of appellant in (b) above are meritorious if, but only if, the instruction purports to submit the defense of sole cause. However, miller contends that Instruction No. 5 is a converse instruction, and that it is sufficient as such.
In Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, it was said: ...
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