State ex rel. Fourcade v. Shain, 35715.

• Decision Date: 17 September 1938
• Docket Number: No. 35715.,35715.
• Citation: 119 S.W.2d 788
• Parties: STATE OF MISSOURI at the relation of DON FOURCADE, Relator, v. HOPKINS B. SHAIN, ROBERT M. REYNOLDS and EWING C. BLAND, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

119 S.W.2d 788

STATE OF MISSOURI at the relation of DON FOURCADE, Relator, v. HOPKINS B. SHAIN, ROBERT M. REYNOLDS and EWING C. BLAND, Judges of the Kansas City Court of Appeals.

No. 35715.

Supreme Court of Missouri.

Division One, September 17, 1938.^*

Certiorari.

RECORD AND OPINION OF KANSAS CITY COURT OF APPEALS QUASHED.

Price Wickersham for relator.

(1) The sole ground upon which the Kansas City Court of Appeals reversed this cause was that plaintiff's main instruction did not require jury to find that plaintiff was damaged by the injuries to his wife, the Court of Appeals at same time holding "there is no controversy that the plaintiff was damaged by the injuries to his wife." The Supreme Court has always held that a verdict-directing instruction may omit an essential element that is not controverted. Hence the decision of the Kansas City Court of Appeals is in direct conflict with the last controlling decisions of the Supreme Court. Pandjiris v. Oliver Cadillac Co., 98 S.W. (2d) 978; Morris v. Equitable Life Ins. Co., 102 S.W. (2d) 574; Byrnes v. Popular Bluffs Ptg. Co., 74 S.W. (2d) 20; Hill v. St. Louis Pub. Serv. Co., 64 S.W. (2d) 637; Miller v. Collins, 40 S.W. (2d) 106; Bowers v. K.C. Pub. Serv. Co., 41 S.W. (2d) 810; Koenig v. K.C. Rys. Co., 243 S.W. 123; Davidson v. Transit Co., 211 Mo. 320. (2) There is no difference between "assuming" a fact not controverted and "omitting" a fact not controverted. Miller v. Collins, 40 S.W. (2d) 1065; Bowers v. K.C. Pub. Serv. Co., 41 S.W. (2d) 810; Byrnes v. Poplar Bluffs Ptg. Co., 74 S.W. (2d) 20. (3) The Supreme Court in its last and controlling decisions has held that a plaintiff's verdict-directing instruction may be aided by his other instructions, and that plaintiff's instructions may be read together. Plaintiff's instructions when read together correctly instructed the jury. Pandjiris v. Oliver Cadillac Co., 98 S.W. (2d) 978; State ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W. 840; McDonald v. Kansas City Gas Co., 59 S.W. (2d) 40; Jenkins v. Mo. State Life Ins. Co., 69 S.W. (2d) l.c. 669. (4) When the Kansas City Court of Appeals holds: (a) "negligence of defendant is admitted," and (b) "the fact that plaintiff's wife received such injuries as she did receive as a direct result of the alleged injury, also stands admitted" and (c) "there is no controversy that plaintiff was damaged by the injuries to his wife," then a verdict for defendant "could not be allowed to stand," and the error, if any, in plaintiff's main instruction is not prejudicial error, and the decision of the Kansas City Court of Appeals is in direct conflict with the last and controlling decisions of the Supreme Court. Pandjiris v. Oliver Cadillac Co., 98 S.W. (2d) 978; Bello v. Steuver, 44 S.W. (2d) 619; Barr v. Mo. Pac. Ry. Co., 37 S.W. (2d) 927; Maloney v. Boatmen's Bank, 232 S.W. 133; Mo. Dig. Appeal & Error, Key 1068 (3) 5.

George Kingsley and John J. Cosgrove for respondents.

(1) It is reversible error for plaintiff's instruction covering the entire case and directing a verdict to omit an essential element of plaintiff's case. Hall v. Coal Co., 260 Mo. 351, 168 S.W. 927; State ex rel. v. Ellison, 195 S.W. 722; State ex rel. Long v. Ellison, 199 S.W. 984; Lynch v. Railroad, 61 S.W. (2d) 918; State ex rel. v. Ellison, 272 Mo. 571; Wajtylak v. Coal Co., 188 Mo. 620. (2) Such an instruction is not cured by other instructions submitting the omitted necessary element. Jenkins v. Mo. State Life, 69 S.W. (2d) 666. (3) Where plaintiff's instruction covering the whole case and directing a verdict does not omit an essential element of plaintiff's case but omits some matter of defense or is worded in language too general or somewhat ambiguous, it may be cured by other instructions whether given for plaintiff or defendant. State ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W. 40; McDonald v. Gas Co., 59 S.W. (2d) 40; Jenkins v. Mo. State Life, 69 S.W. (2d) 666. (4) The Pandjiris case, being a divisional opinion, and conflicting with decisions of the Supreme Court en banc, is not a controlling decision, and no conflict arises for failure of Court of Appeals to follow it. State ex rel. No. K.C. Dev. Co. v. Ellison, 282 Mo. 660, 222 S.W. 783; State ex rel. v. Daues, 319 Mo. 733, 6 S.W. (2d) 893; State ex rel. Ambrose v. Trimble, 304 Mo. 533; State ex rel. v. Ellison, 272 Mo. 571. (a) No conflict exists where Court of Appeals refuse to follow an erroneous decision of Supreme Court. State ex rel. v. Trimble, 326 Mo. 675; State ex rel. v. Trimble, 287 S.W. 626; State ex rel. v. Daues, 314 Mo. 13. (5) Not in every instance may uncontradicted evidence of an issue or an essential element be assumed, or omitted from an instruction covering whole case and directing a verdict. Davidson v. Transit Co., 211 Mo. 320, 109 S.W. 538.

HYDE, C.

This case, recently reassigned to the writer, is a proceeding in certiorari seeking to quash the opinion of the Kansas City Court of Appeals in the case of Fourcade v. Kansas City (Mo. App.), 107 S.W. (2d) 953. Relator, as plaintiff therein, obtained judgment for $7500 damages for loss of his wife's services. The Court of Appeals held that plaintiff's main instruction was erroneous and reversed and remanded the cause.

[1] Relator claims conflict between this opinion of the Court of Appeals and the decision of this court in Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W. (2d) 978. Respondent's brief here admits this conflict. The Court of Appeals refused to follow the Pandjiris case because it found the opinion therein (in Division No. 1) "in direct conflict with State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984, which is an opinion en Banc," and also with State ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W. 840, also en Banc. The specific error which the Court of Appeals found in plaintiff's main instruction was that "nowhere therein is there any requirement for a finding by the jury of the elements necessary to be found with respect to the husband's injury and damage." The court stated the rule of the two Banc cases, above cited, to be that "an instruction covering the whole case, which leaves out essential elements and directs a verdict, cannot be cured by another instruction." This is, of course, a correct statement of a very firmly settled rule, which is recognized and stated in the Pandjiris case. [For discussion of cases see McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W. (2d) 37.] The question here is whether or not the Pandjiris case departs from this rule.

[2] In this case, the Court of Appeals made the following statements, concerning the facts: "So far as this review is concerned the negligence of defendant is admitted, and the fact that defendant's wife received such injury as she did receive as a direct result of the alleged negligence also stands admitted... . It will suffice to state that the wife of plaintiff was injured by reason of a fall occasioned by the negligence of the respondent in permitting to remain in the sidewalk a defective lid over a manhole, and that this is a suit by the husband and only involves such damages as are shown to have accrued to the husband as a result of his wife's injuries... . It appears that there is no controversy that the plaintiff was damaged by the injuries to his wife."

In the Pandjiris case, this court said that plaintiff's main instruction, authorizing a verdict, "standing alone, is technically erroneous" because it "omitted to require a finding that plaintiff suffered loss and damages resulting from the wife's injuries." This court, however, pointed out that plaintiff's instruction on the measure of damages correctly stated the elements of damage for which plaintiff was entitled to recover; and (quoting from State ex rel. Ambrose v. Trimble, supra) said: "`The two instructions taken together define, somewhat awkwardly but correctly, the duty of the jury.'" It is true, as the Court of Appeals noted, that in the Ambrose case it was said that the instruction referred to "does not authorize a verdict." However, this court did not in the Pandjiris case base its ruling (that the omission of the requirement to find that the husband was damaged by his wife's injuries, from instruction therein discussed, did not constitute reversible error) solely upon the ground that a measure of damages instruction could cure an essential omission from the main instruction, even if what was said is susceptible of that construction.

This court, in the Pandjiris case, further stated and ruled, as follows:

"As further indicating that the jury properly understood the issues they were to determine in assessing damages, respondent directs attention to other circumstances, namely, the defendant introduced in evidence the petition in the wife's case showing that she claimed damages for her own injuries, and obtained an instruction specifically directing the jury, in reaching their verdict, not to consider the injury and damage accruing to the husband from the wife's injury. And in the present case the jury were instructed at the instance of the defendant that in the event they should find for plaintiff they could not, in assessing the damages, take into consideration the claim the wife individually might have, or any loss she herself sustained, and that the...