Rembusch v. Prebe
| Decision Date | 08 November 1948 |
| Docket Number | 40862 |
| Parties | Lloyd Rembusch, Appellant, v. Fred Prebe, Doing Business as Prebe & Son Trucking Company, Respondent |
| Court | Missouri Supreme Court |
Rehearing Denied December 13, 1948.
Appeal from Lewis Circuit Court; Hon. Tom Brown, Judge.
Affirmed.
Rendlen White & Rendlen, Harry S. Rouse and Hilbert & Veatch for appellant.
(1) Defendant's Instruction A, on sole cause is prejudicially erroneous. Sole cause means what we (this court) may term a not due to negligence of defendant provision which must be in a sole cause instruction. Stanich v. Western Union Tel Co., 348 Mo. 188, 153 S.W.2d l.c. 58. (2) The instruction wholly fails to hypothesize facts which exclude negligence of the defendant in the manner charged in the petition, and submitted by plaintiff's principal instructions. Bootee v. Kansas City Pub. Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Hopkins v. Highland Dairy Farms Co., 349 Mo. 1158, 159 S.W.2d 254; Reiling v. Russell, 348 Mo. 279, 134 S.W.2d l.c. 38. (3) This Instruction A here before us does not require the jury to find that the plaintiff's injury was not due to any negligence on the part of the defendant. This omission is fatally defective. Shields v. Keller, 153 S.W.2d l.c. 64; Bootee v. Kansas City Public Serv. Co., 183 S.W.2d 892, 353 Mo. 716; Hopkins v. Highland Dairy Farms Co., 349 Mo. 1158, 159 S.W.2d l.c. 257. (4) Instruction A not setting out fairly as they were the facts under defendant's own evidence which was necessary to excuse defendant from liability upon the sole cause theory, and utterly omitted to tell the jury they must find upon the facts that defendant was free from negligence. This omission in said instruction renders it erroneous, and the error was not cured by other instructions. Bootee v. Kansas City Public Serv. Co., 183 S.W.2d l.c. 897. (5) Respondent's Instruction A on the sole cause theory is prejudicially erroneous. It directs a verdict for defendant on the basis therein stated, this though an essential requirement is omitted, which omission is that the driver of defendant's truck was at the time exercising the highest degree of care and was not guilty of negligence, causing or contributing to the injury complained of. This omission is fatal error in a sole cause instruction and was not cured by other instructions in the case. Stanich v. Western Union, 348 Mo. 188, 153 S.W.2d 54; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Long v. Mild, 347 Mo. 1002, 140 S.W.2d 853; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289. (6) The facts to sustain a finding of no negligence on the part of defendant and of negligence on the part of the plaintiff as sole cause of his injury must be submitted to the jury. Bootee v. K.C. Public Serv. Co., 353 Mo. 716, 183 S.W.2d 892; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d l.c. 795. (7) Defendant had a right to have his theory of the case made by the pleadings and the evidence submitted to the jury but if defendant desired a sole cause instruction it was his duty to submit a correct one. Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d l.c. 59. McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907. (8) Respondent's Instruction A fails to hypothesize facts which exclude negligence of defendant in the manner charged in the petition and submitted by plaintiff's principal instruction. Nor did it contain any provision requiring a specific finding by the jury against the issue of defendant's negligence as submitted in plaintiff's principal instruction. This is fatal error. Bootee v. K.C. Public Service Co., 353 Mo. 716, 183 S.W.2d 893. (9) Where an instruction is susceptible of two constructions and doubt may, therefore, arise as to its meaning, and one of such constructions is at variance with the law, it is error for the trial court to give it. Hopkins v. Highland Dairy Farms Co., 159 S.W.2d l.c. 257; Morris v. Morris, 28 Mo. l.c. 118; Schipper v. Brashear Truck Co., 132 S.W.2d l.c. 996, 125 A.L.R. 674. (10) Instruction must be correct in both form and circumstances. Schipper v. Brashear Truck Co., 123 S.W.2d l.c. 996. (11) Instructions are intended to be guides to the jury, and should be clear declarations of the law applicable to the facts, and if open to two or more constructions they should be refused. Dunn v. Dunnaker, 87 Mo. 597; Hopkins v. Highland Dairy Farms Co., 159 S.W.2d l.c. 257. (12) Instruction A is erroneous because it omits, ignores and excludes material elements and material and essential facts and circumstances in evidence having a material bearing on the defense of sole cause. It is error to submit a defense on only a part of the material facts, and direct a verdict if the facts so submitted are found to be true. Messer v. Gentry, 220 Mo.App. 1294, 290 S.W. 1016; Perkins v. R., 280 Mo. 21, 49 S.W.2d 103; Klene v. Campbell, 213 S.W. l.c. 521.
J. Andy Zenge, Jr., for respondent.
(1) The trial court correctly gave defendant's Instruction A. Branson v. Abernathy Furniture Co., 130 S.W.2d 562; Janes v. St. Louis Public Serv. Co., 204 S.W.2d 698. (2) Review of record shows substantial justice was done and rule is well established appellate courts do not reverse lower courts under such circumstances. Sec. 847.123, Mo. R.S. Ann. 1939; State ex rel. Chicago, R.I. & P. Ry. Co. v. Shain, 89 S.W.2d 654; Carlysle v. Tilghman, 159 S.W.2d 663.
Plaintiff-appellant sued defendant-respondent for $ 20,000 for personal injuries claimed to have resulted from a highway collision of two trucks. The trucks were approaching each other at night on Highway 61 in Pike County, Missouri. Plaintiff was operating his truck northbound. Defendant's truck was being operated southbound.
Plaintiff submitted his case solely on primary negligence. The verdict of the jury was in favor of defendant. After his motion for new trial was overruled plaintiff appealed.
Plaintiff's only theory of submission, stated in his instruction 4, was that defendant's southbound truck was operated upon defendant's left side (the east side) of the centerline of the highway, thus forcing plaintiff to cross over the highway and undertake to pass defendant's truck on the west side and west shoulder of the highway. Plaintiff's petition and evidence supported that theory of submission.
On the contrary, it was defendant's theory of the case that plaintiff suddenly drove his northbound truck from plaintiff's right side (the east side) across the highway to plaintiff's left side (the west side) of the highway, and that in an effort to avoid a collision defendant's truck was thereupon driven over onto the east side of the highway. Defendant's evidence supported that theory. In thus passing the two trucks sideswiped.
The only question presented by the appeal is the propriety of the trial court's action in giving defendant's requested instruction A. That instruction was as follows: "The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence, plaintiff so operated his tractor-trailer as to cause same to suddenly go from a position of safety on his right side of the highway to the left of said highway and closely in front of defendant's motor vehicle, if you so find, and if you further find and believe from the evidence that the acts of plaintiff in so doing, if you so find, were the sole cause of whatever injuries, if any plaintiff sustained on said occasion, and said injuries, if any, were not due to any of the particulars set out in other instructions herein, then in that case, plaintiff is not entitled to recover and you will find your verdict for the defendant".
Plaintiff contends instruction A as a sole cause instruction failed to meet certain requirements of such instructions, as ruled by this court in Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Kellar, 348 Mo. 326, 153 S.W.2d 60; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54; Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; and McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792, and cases cited in those decisions.
In this case plaintiff was personally operating the northbound truck. In his petition he made various allegations of primary negligence, among them the one above noted as submitted to the jury in plaintiff's instruction 4. Plaintiff submitted no other theory of recovery.
Defendant's answer alleged, among other things, that the collision was the direct result of the negligent act of plaintiff in operating his truck onto the wrong side of the highway.
In substance, plaintiff's criticism of instruction A is that it fails to require a finding by the jury that plaintiff's injuries were not due to defendant's negligence and that it also fails to hypothesize facts which exclude negligence of defendant in the manner charged in the petition and submitted in instruction 4.
In the cases relied on by plaintiff and set out above, the facts and submission were each unlike the instant case. In none of those cases was plaintiff even chargeable with contributory negligence. In each such case there was a submission upon the humanitarian theory or plaintiff was a guest. In the Hopkins and McGrath cases both conditions obtained. More is required of a sole cause instruction in such instances.
Here plaintiff and defendant each charged the other with negligence in driving on the wrong side of the highway. If the...
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...351, 228 S.W.2d 743; Colvin v. Mills, supra; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. See also Rembusch v. Prebe, 358 Mo. 409, 215 S.W.2d 433, a primary negligence case, wherein the factual theories as to how the collision came about were basically irreconcilable. P......