Semar v. Kelly

• Decision Date: 06 December 1943
• Docket Number: 38586
• Parties: Betty Semar, an Infant, by Her Next Friend, Burl Semar, Her Father, v. Carl E. Kelly, Appellant
• Court: Missouri Supreme Court

176 S.W.2d 289

352 Mo. 157

Betty Semar, an Infant, by Her Next Friend, Burl Semar, Her Father, v. Carl E. Kelly, Appellant

No. 38586

Supreme Court of Missouri

December 6, 1943

Motion for Rehearing Overruled January 3, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed and remanded.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford for appellant.

(1) The court is not justified in setting aside a verdict of a jury when for the right party, even though an erroneous instruction has been given. Sec. 973, R.S. 1939; Jackson v. Scott Milling Co., 118 S.W.2d 1054; Farmers Loan Co. v. Southern Surety Co., 285 Mo. 621, 226 S.W. 926; Petersen v. Transit Co., 199 Mo. 331, 97 S.W. 860; Wilson v. United Rys. Co., 169 Mo.App. 405, 152 S.W 426. (2) All the instructions must be read together. When so read, if consistent and harmonious and between all correctly state the law for the case, then an average jury are assumed to have understood them. Bowman v. Standard Oil Co., 169 S.W.2d 384; Lewis v. Zagota, 166 S.W.2d 541; Rishel v. K.C. Pub. Serv. Co., 129 S.W.2d 851; Taylor v. Lesser, 113 S.W.2d 812. (3) Words and clauses are to be read in the light of all the instructions, and when used in their ordinary dictionary meaning need not be further defined by the party offering the instruction. Kamp v. Western Coal Co., 149 S.W.2d 969; Rebout v. Kurn, 154 S.W.2d 125; Russell v. Bauer-Berger, 288 S.W. 985; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467; Scott v. K.C. Pub. Serv. Co., 115 S.W.2d 518. (4) It is the duty of opposite party to offer defining instructions if he believes the terms need clarification. Williams v. Guyot, 126 S.W.2d 1137; Taylor v. Alton Ry. Co., 148 S.W.2d 806; Brunk v. Hamilton-Brown Co., 66 S.W.2d 903. (5) Instruction 4 has been specifically approved by Division No. 1 of the Supreme Court. Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467. (6) This case was approved in substance by a later decision of this court. Johnson v. Raming, 100 S.W.2d 406, and also by the Court of Appeals in Schweig v. Wells, 26 S.W.2d 851. (7) Subsequent cases which discuss sole cause instruction cannot be said to overrule these cases, because they are either factually dissimilar or they have themselves been questioned. Thus, Dilallo v. Lynch, 101 S.W.2d 7; McGrath v. Meyer, 341 Mo. 412, 107 S.W.2d 792, have themselves been criticized in Bannon v. Abernathy, 130 S.W.2d 562; Kirk v. Franklin, Receiver, 137 S.W.2d 512; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 266; Stanich v. Western Union, 348 Mo. 188, 153 S.W.2d 54, which have also been questioned in Rebout v. Kurn, 154 S.W.2d 125, which also questions the soundness of Peppers v. St. L.S.W. Ry. Co., 316 Mo. 1104, 295 S.W. 757, where the suggestion that the term "sole cause" was an abstract rule of law instead of an ultimate fact first arose. Finally the court shows further departure in Seago v. N.Y. Central, 164 S.W.2d 336; Jurgens v. Thompson, 169 S.W.2d 353.

Edwin A. Smith for respondent.

(1) The trial court was justified in sustaining plaintiff's motion for a new trial on account of misdirection of the jury by the court in giving and reading to the jury defendant's Instruction 4, in that it did not properly state the law, was erroneous, misleading and prejudicial, and, therefore, an improper verdict for the defendant was occasioned thereby. Sec. 1168, R.S. 1939; Dorlac v. Bueneman, 129 S.W.2d 108; Strother, Pub. Admin., v. Sieben, 282 S.W. 502; Lord v. Delano, 188 S.W. 93. (2) Said instruction did not state, nor require the jury to find, the approximate position of the automobile in which plaintiff was riding as a guest immediately before and at the time of the collision; neither did it state, nor require the jury to find, the approximate position of the automobile of the defendant immediately before and at the time of the collision. Therefore, according to said instruction and by reason of said omissions, there is no causal connection between the alleged speed of the automobile in which plaintiff was riding as a guest, as mentioned in said instruction, and the automobile of the defendant. Reece v. Jefferson Transp. Co., 160 S.W.2d 789. (3) Said instruction was further erroneous, misleading and prejudicial in that the evidence did not warrant the giving of a sole-cause instruction, because the plaintiff and all of her witnesses testified that when their automobile came over the crest of the hill, on their right or east side of January Avenue, moving from 20 to 25 miles per hour, the automobile of the defendant immediately before the collision was approximately 100 feet ahead of their automobile, moving from 30 to 35 miles per hour, and on their, or the east, side of January Avenue, and, therefore, on his wrong side of the street. Therefore, the alleged speed of the automobile in which plaintiff was riding as a guest, as mentioned in said instruction, was neither the sole cause nor the proximate cause, because, irrespective of its speed, there would have been no collision except for his being on the wrong side of January Avenue. Long v. Mild, 149 S.W.2d 853; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Shields v. Keller, 153 S.W.2d 60; Schroeder v. Rawlings, 155 S.W.2d 189; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Fassi v. Schuler, 159 S.W.2d 774; Seago v. N.Y. Cent. R. Co., 164 S.W.2d 336; Lewis v. Zagatta, 166 S.W.2d 541; Boyce v. Donnellan, 168 S.W.2d 120; Jurgens v. Thompson, 169 S.W.2d 353.

Barrett, C. Westhues, C., concurs; Bohling, C., concurs in result.

OPINION

BARRETT

Through her next friend Betty Semar, thirteen years of age, instituted this action for personal injuries against Carl E. Kelly. Upon a trial of the case the jury returned a verdict in favor of the defendant, Kelly. The trial court sustained her motion for a new trial for the assigned reason that it had misdirected the jury by instruction No. 4 and the question on this appeal is whether the instruction was so prejudicial to a fair presentation and decision of the plaintiff's case that she is entitled to a new trial.

Betty's cousin, Jewell Williams (aged twenty-two), and two of his girl friends were at Betty's home in the late afternoon of October 12, 1941. About seven o'clock Jewell started to take one of the girls home in a borrowed 1941 Chevrolet coach. Betty and two of her friends went along for the ride. Jewell and the two older girls sat in the front seat while Betty and her friends sat in the back seat. Betty and her witnesses testified that as Jewell drove over the brow of a hill north on January Avenue at a speed of about twenty-five miles an hour Mr. Kelly was coming up the hill from Chandler Street at a speed of about thirty-five miles an hour. When they saw Mr. Kelly and the lights of his car he was about 100 feet away and his 1938 Ford coupe was entirely over on the east or wrong side of the pavement. Jewell sounded the horn on the car he was driving, swerved to the left and applied the brakes but the cars collided in the middle of the street, the left front of both cars impacted.

Mr. Kelly, his wife and their baby were returning home from eighty miles west of Vandalia, Illinois. Mr. Kelly and his witnesses testified that when he approached January Avenue he almost came to a stop in turning left onto the street. His car was in low gear and by the time he had completed the turn his car was in the middle of the west side, the right side, of the pavement and was never, at any time, on the east or wrong side of the pavement. They say that when they were about forty or fifty feet up the hill away from Chandler Street a car suddenly came over the crest of the hill and its headlights were "straddle" the middle line of January Avenue. They say the car was travelling at a speed of forty to forty-five miles an hour -- one witness said "like a streak." Kelly swerved to the right but the speed of the other car was such that he could not avoid it even though his car was three to four feet west of the center line of the pavement at the instant they collided.

There were but two instructions specifically and factually hypothesizing the contrasting theories of liability and nonliability. The five other instructions abstractly defined terms, advised the jury how they could return a verdict and how to measure any damages they might find. For Betty Semar Kelly's liability was hypothesized upon a finding that the proximate cause of the collision and her injuries was his primary negligence of driving and operating his automobile on the east or wrong side of January Avenue, not as close to the right or west side of the street as practicable. The facts of the collision and the circumstances of the parties, as shown by her evidence, were narrated and her evidence as to the manner in which Kelly was said to have driven his car was hypothesized and if the jury believed her evidence and found those to be the facts the cause of the collision was Kelly's being on the wrong side of the street. Betty was a guest in the car driven by Williams and it was not claimed that she personally was negligent in any manner. Seago v New York Central Ry., 349 Mo. 1249, 164 S.W.2d 336. And, by specific direction of both the plaintiff and the defendant the jury were told that they could not impute any negligence they might find Williams guilty of to her. Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366. Kelly's theory of his nonliability was that the collision and injuries complained of were not due to negligence on his part but were due solely to the negligence of Betty's host, Jewell Williams, in driving and operating the automobile in which she rode at a dangerous and excessive rate of speed. His theory of...