Senter v. Ferguson

• Decision Date: 25 July 1972
• Docket Number: No. 34244,34244
• Citation: 486 S.W.2d 644
• Parties: Neva SENTER, Plaintiff-Appellant, v. Virginia FERGUSON, Defendant-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 644

486 S.W.2d 644

Neva SENTER, Plaintiff-Appellant, v. Virginia FERGUSON, Defendant-Respondent.

No. 34244.

Missouri Court of Appeals, St. Louis District, Division Two.

July 25, 1972.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 20, 1972.

Application to Transfer Denied Dec. 11, 1972.

Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for plaintiff-appellant.

Buerkle, Buerkle & Lowes, Jackson, for defendant-respondent.

DOWD, Presiding Judge.

Action for damages sustained in an automobile collision. The jury returned a verdict for the plaintiff in the amount of $500.00. Plaintiff's motion for a new trial was overruled and she appeals.

The plaintiff Neva Senter testified as follows. She was injured on March 14, 1970, when the car she was driving struck the rear of a car which the defendant Virginia Ferguson was backing out of her driveway. The accident occurred at night on a residential street in Fredericktown, Missouri. Plaintiff was driving south on Marshall Street, a two-lane thoroughfare with parking on both sides, at approximately 20 miles per hour. There were overhead street lights, and plaintiff testified that she was driving with her headlights on 'dim,' enabling her to see about 100 feet ahead. She was not wearing her seat belt. As she approached the Ferguson house she though she saw a dog to her right and glanced over in that direction. When she looked back at the street, there was a car in front of her, the rear end of which extended into the southbound lane of travel. There were no lights on this vehicle, which was stopped about one car length in front of the plaintiff at the time she first saw it. She tried to swerve her car, but the front end collided with the rear fender of the other car. Her car then veered across the street and struck a parked car on the other side.

The only witness to the accident testified that she saw the plaintiff's brake lights go on about one car length in back of the defendant's vehicle, and that she saw the cars collide right at the driveway to the Ferguson house. She did not observe any lights on the Ferguson car.

The defendant Virginia Ferguson testified that she was backing out of her driveway and did not see a car approaching, although she had looked in both directions. When her car was about one foot into the southbound lane of Marshall Street, she stopped in order to shift into forward gear and pull back into the driveway. Her headlights were on at the time, enabling her to observe her dog in the yard, and she intended to pull back into the driveway to let the dog in the house. While stopped in this manner, her car was struck by the plaintiff.

On this appeal, plaintiff's first two assignments of error relate to the admission of certain medical evidence and the giving of Instruction No. 9 to the jury. Plaintiff's third assignment of error is that the verdict is so inadequate as to show bias and prejudice on the part of the jury.

If we conclude that plaintiff is correct in her first two assignments of error, it will be unnecessary for us to consider her third assignment. This is for the reason that the first two alleged errors relate to the measure of damages, or in other words, they have a demonstrable connection with the amount of the verdict. If the errors were in fact committed by the lower court, we assume that they affected in some way the amount of the verdict. This would be true even if the verdict was found to be adequate. Thomas v. Jones, Mo., 409 S.W.2d 131.

The first assignment of error concerns the giving of Instruction No. 9, as follows: 'You are instructed that any award made to plaintiff as damages in this case, if any award is made, is not subject to Federal or State Income Taxes, and you should not consider such taxes in fixing the amount of any award made the plaintiff, if any you make.' This Instruction was given in addition to Instruction No. 7 which is the M.A.I. damages instruction for personal injury actions (4.01).

Respondent contends that this exact instruction was specifically approved and authorized in Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42, and referred to with approval in Bowyer v. Te-Co. Inc., Mo., 310 S.W.2d 892. Both these cases, 1952 and 1958 respectively, were decided by the Supreme Court prior to the adoption of M.A.I. Since that time we are unaware of any cases where such an instruction was the basis for an appeal. This case, is, therefore, in a limited respect, one of first impression.

The question we must answer is whether, after the promulgation and adoption of M.A.I., it was error to give this additional instruction on the issue of damages.

Supreme Court Rule 70.01, V.A.M.R., states, 'Whenever M.A.I. contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.' (Emphasis ours). See also Jurgeson v. Romine, Mo.App., 442 S.W.2d 176.

In the instant case, in plain violation of this rule, two instructions on damages were given. While this was permissible before the introduction of M.A.I., it is now contrary to both the letter and spirit of the law. The court, in Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, while not considering an 'income tax' instruction such as we have here, nevertheless used language which is appropriate for this case. 'If counsel are permitted to 'improve' the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost.' (Emphasis ours). l.c. 258.

The Brown case held that a deviation from an M.A.I. instruction which does not need modification under the facts in the case establishes a presumption of prejudicial error. Likewise, in Houston v. Northup, Mo., 460 S.W.2d 572, the court was called upon the decide whether the giving of a additional instruction by the trial judge constituted error, in a situation where the jury requested clarification of the M.A.I. instructions given to them. The court stated at pp. 575--576, 'Implicit in a scheme of approved pattern instructions such as M.A.I. is the central idea that such instructions do not require further clarification or amplification. They submit ultimate issues and do so adequately. Consequently, we have held in cases such as Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, and Murphy v. Land, Mo., 420 S.W.2d 505, that change in the prescribed language other than the authorized modifications is not permissible and constitutes error. Necessarily, it also follows that it is not permissible to modify or enlarge or change or explain M.A.I. instructions by separate instructions not provided for or authorized in M.A.I. To permit modification, clarification or improvement by separate instructions would be just as objectionable as doing so within the body of the prescribed instructions. * * * M.A.I. makes no provision for, and does not authorize or contemplate that trial judges will devise additional instructions seeking to explain or amplify instructions which conform to M.A.I.' (Emphasis ours).

The instruction which referred to taxes in the case at bar was clearly an addition to or 'modification' of M.A.I. 4.01 which was not called for by...