Shepard v. Harris

Decision Date12 November 1959
Docket NumberNo. 46826,46826
Citation329 S.W.2d 1
PartiesWalter H. SHEPARD and Rita M. Shepard, Respondents, v. Jackie HARRIS, a Minor, Appellant.
CourtMissouri Supreme Court

Ford & Ford, Elbert L. Ford, James F. Ford, Kennett, for defendant-appellant.

James F. Ford, Kennett, guardian ad litem for defendant-appellant.

Ward & Reeves, Caruthersville, for respondents.

COIL, Commissioner.

Walter and Rita Shepard recovered $15,000 as damages for the alleged wrongful death of their son Larry, who died as a result of injuries sustained when an automobile in which he was a passenger and being driven by 17-year-old defendant, Jackie Harris, overturned. Defendant, through his duly appointed guardian ad litem, has appealed from the ensuing judgment and contends in 21 separate points that the trial court erred: In refusing to direct a defendant's verdict at the close of all the evidence on the ground that plaintiffs' decedent was contributorily negligent as a matter of law, in the giving of instructions, in the admission of evidence, and in refusing to declare a mistrial for improper statements by plaintiffs' attorney on voir dire, during the trial proper, and in jury argument; and he also contends that the judgment is grossly excessive.

About 7:30 p. m. on May 11, 1957 Jackie Harris was driving his father's automobile eastwardly on black-topped county road A between Wardell and Hayti in Pemiscot County. Larry Shepard was a front-seat passenger. The automobile went south off the paved surface and out of control, back across the road, and ended up overturned in a field some 30 feet north of the road's north edge. There was testimony that the reason Jackie Harris turned off the pavement was to avoid a westbound automobile which was occupying the middle of the highway. Inasmuch, however, as there is no contention that plaintiffs did not make a submissible case in so far as concerns defendant's negligence, we shall here discuss only that evidence which is pertinent to defendant's contention that as a matter of law plaintiffs' decedent was contributorily negligent.

Plaintiffs called defendant to testify as a witness in their behalf under the provisions of section 491.030. (All section references are to sections of RSMo 1949, V.A.M.S.) Plaintiffs were entitled to prove an essential part or parts of their case by the testimony of the defendant and thereby be bound only by that part of defendant's testimony which they offered and thus vouched for as the truth. What defendant may have said upon examination by his own counsel and thus presumably in his own behalf was in no way binding on the plaintiffs. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353, 355[3-7]; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549, 555, 556; Hall v. Brookshire, Mo.App., 285 S.W.2d 60, 64[2, 3].

We note then the evidence pertinent to the contributory negligence issue by which plaintiffs were bound. Defendant's testimony offered by plaintiffs was that he and Larry Shepard were friends and on the evening in question intended to go to a picture show in Hayti; that about 7:30 p. m., dark enough for headlights which he had on, he drove eastwardly on county road A, an 18'-wide black top which was wet and slick, patched, and somewhat uneven, at a speed between 60 and 75 miles per hour, perhaps faster; that he had maintained that speed for several miles prior to the collision, and that the vehicle upset and overturned. The only other evidence adduced by plaintiffs which might have been material on decedent's contributory negligence was that immediately prior to and at the time of the accident, it was drizzling rain and that defendant was and had been for at least 1 1/4 miles driving at a speed of at least 90 miles per hour and that the road's shoulders were muddy and not in good condition.

It is true, as defendant contends, that his proof tended to show that deceased made no protest as to the speed at which defendant drove or in any other way tried to influence the manner in which defendant operated the vehicle, and, in fact, said nothing until they each saw at the same time one headlight proceeding toward them in the middle of the road, whereupon deceased remarked about that 'crazy so and so,' and defendant turned the car off the paved surface in order to avoid colliding with the approaching automobile. As we have heretofore stated, however, plaintiffs were not bound by the evidence adduced by defendant. Consequently, it seems apparent, in the absence of evidence by which plaintiffs were bound that decedent did nothing to attempt to influence the situation for safety as the defendant drove the automobile eastwardly, that decedent could not have been contributorily negligent as a matter of law. The jury was at liberty to believe or disbelieve that part of defendant's testimony as to decedent's failure to protest defendant's speed or to protest otherwise the manner of his driving. While it would seem doubtful that, even though plaintiffs had been bound by all the evidence, including that adduced by defendant, decedent was contributorily negligent as a matter of law, nevertheless, we need go no farther in this case than to hold that decedent was not as a matter of law contributorily negligent under the only evidence by which plaintiffs were bound.

Plaintiffs submitted their case on excessive speed under the shown circumstances. Defendant's amended answer affirmatively pleaded that decedent's negligence contributed to cause his injuries and death. The evidence pertaining to decedent's contributory negligence has been stated. Defendant submitted the negligence of the unknown driver of the westbound automobile as the sole cause of decedent's injuries and death. Defendant did not submit to the jury the issue of decedent's contributory negligence which had theretofore been in the case by virtue of the pleading and proof. Plaintiffs' instruction 1 did not negative decedent's contributory negligence. Defendant contends that plaintiffs' instruction 1 was thereby prejudicially erroneous.

A rule which upon present examination appears to be illogical, nevertheless has become settled in this state, viz., that a plaintiff's verdict-directing instruction which 'omits therefrom a finding upon a pleaded issue of plaintiff's contributory negligence, supported by substantial evidence, is prejudicially erroneous unless such error is cured by the defendant's submitting that issue * * *.' Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, 897. The rule has been criticized. See Guiley v. Lowe, Mo., 314 S.W.2d 232, 235.

Contributory negligence is an affirmative defense, section 509.090, and must be pleaded before it may become an issue in any case unless plaintiff's own evidence demonstrates as a matter of law that he is contributorily negligent. Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927, 929. If plaintiff's evidence does not as a matter of law demonstrate his contributory negligence, then, even though his own evidence constitutes substantial evidence of his contributory negligence, defendant is not entitled to submit that issue to a jury unless it has been affirmatively pleaded. Taylor v. Metropolitan St. R. Co., 256 Mo. 191, 165 S.W. 327, 334.

There is no question that under Missouri substantive law plaintiff's freedom from contributory negligence is not a constitutive element of a plaintiff's action to recover damages. Brady v. St. Louis Public Service Co., 361 Mo. 148, 233 S.W.2d 841, 844[5, 6]. It follows, of course, that in Missouri contributory negligence is a matter of defense only, proof of which, evidenced by a jury finding, will defeat plaintiff's claim. Redick v. M. B. Thomas Auto Sales, Inc., 364 Mo. 1174, 273 S.W.2d 228, 235.

It seems clear then that a plaintiff's failure to negative his contributory negligence in a verdict-directing instruction is neither an omission of an essential element of his claim nor in any sense a misdirection as to the law. A plaintiff may recover when he has proved, in the jury's judgment, the essential elements of his case. It follows that he is entitled to recover, irrespective of what the evidence may show as to contributory negligence (short of contributory negligence as a matter of law) unless his recovery is defeated by the jury's finding for defendant on defendant's affirmative defense pleaded, supported, and submitted. If defendant does not submit a defense, even though it has been pleaded and supported by evidence, plaintiff should not be required to hypothesize for recovery any facts which go beyond plaintiff's own theory of recovery. Easterly v. American Institute of Steel Construction, 349 Mo. 604, 162 S.W.2d 825, 827[2, 3]. There is no reason which occurs to us why the usual rule of abandonment should not apply to the issue of contributory negligence in the same manner and to the same effect as it applies to other defenses, including affirmative defenses, and, if so, defendant has abandoned his affirmative defense of contributory negligence when he fails to submit it. Upon such abandonment, plaintiff's contributory negligence ceases to be an issue in the case.

In Lewis v. Oliver, Mo.App., 220 S.W.2d 748, 752, it is said: 'The answer of defendants pleaded several defenses in addition to the one above mentioned. One of those defenses was that there was no meeting of the minds of the parties to the alleged agreement in that defendants understood and believed that the price agreed upon was 25 cents per cubic yard instead of 25 cents per cubic foot. Defendants offered, and the court gave, an instruction submitting this defense. No other instructions were offered by defendants. Defendants, therefore, voluntarily abandoned all other defenses and cannot complain that plaintiff's instruction failed to cover these abandoned defenses. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64; Zambruski v. Ludewig, Mo.App., 110 S.W.2d 825; Billingsley v. Kansas City Pub. Serv. Co. , 191 S.W.2d 331; Hill v. Landau,...

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