Steinman v. Strobel

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; WELLIVER; BARDGETT, C. J., and DONNELLY; SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY; WELLIVER; BARDGETT; DONNELLY
• Citation: Steinman v. Strobel, 589 S.W.2d 293 (Mo. 1979)
• Decision Date: 14 November 1979
• Docket Number: No. 61245,61245
• Parties: David W. STEINMAN, Appellant, v. Cornelius E. STROBEL and Donald O. Schnieders, Respondents.

Page 293

589 S.W.2d 293

David W. STEINMAN, Appellant, v. Cornelius E. STROBEL and Donald O. Schnieders, Respondents.

No. 61245.

Supreme Court of Missouri, En Banc.

Nov. 14, 1979.

Rehearing Denied Dec. 6, 1979.

Thomas A. Vetter, Dale C. Doerhoff, Jefferson City, for appellant.

Marvin E. Wright, Columbia, for respondent Schnieders.

John E. Burruss, Jr., Jefferson City, for respondent Strobel.

PER CURIAM:

Plaintiff Steinman sued defendants Strobel and Schnieders for personal injuries. Strobel was driving a pickup truck in a westerly direction ahead of Steinman's motorcycle. Steinman was approximately thirty feet behind Strobel's pickup truck and traveling at an estimated speed of forty-five miles per hour. Schnieders was driving a tractor-trailer in an easterly direction. The road was narrow and all vehicles were approaching a bridge at the bottom of a grade. Stroble slowed his pickup truck. Steinman's motorcycle collided with the rear end of the pickup truck, and veered into the eastbound lane into collision with the tractor-trailer operated by Schnieders.

Plaintiff alleged that defendant Strobel slowed without adequate timely warning; that respondent Schnieders failed to slacken speed after he knew or should have known that plaintiff was in a position of immediate danger; that both defendants were thus negligent, and their combined negligence caused his injuries. Defendants alleged that plaintiff's own negligence with respect to speed, lookout, following too closely, driving on the wrong side of the road, etc., was the cause of his injuries.

Plaintiff moved unsuccessfully to strike defendants' allegations of contributory negligence on the ground that contributory negligence was a "harsh rule which could unfairly place the entire burden of loss" on plaintiff; and for trial of the case on a theory of comparative negligence. After plaintiff's opening statements, both defendants moved for directed verdict. The trial court sustained the Schnieders motion and overruled Strobel's motion. The case proceeded to trial and plaintiff's contributory negligence was included in the submission to the jury. The jury returned a verdict in favor of Strobel and against plaintiff. Plaintiff's motion for new trial preserved the request for trial on comparative negligence. The trial court overruled the motion for new trial, and plaintiff appealed to the Western District of the Missouri Court of Appeals.

The appeal was transferred prior to opinion to consider again whether a concept of comparative negligence should be judicially adopted in Missouri, a matter previously deemed better suited for legislative action. Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977).

A change from contributory negligence to comparative negligence encompasses much more than simply allowing plaintiffs who are partially at fault to recover part of their damages. Numerous questions exist such as whether to retain Missouri's humanitarian doctrine; and the effect of comparative negligence on other doctrines such as contribution, indemnity and joint and several liability, to name but a few. In the latter respects, see the California experience with judicial adoption of comparative negligence in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), and American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), and the comment at 18 Santa Clara Law Review, pp. 780-807 (1978).

This case does not demonstrate appropriate circumstances for judicial adoption of comparative negligence; and the view expressed in Epple v. Western Auto Supply Co., supra, is reaffirmed.

Accordingly, this appeal is retransferred to the Western District of the Missouri Court of Appeals.

RENDLEN, MORGAN and HIGGINS, JJ., concur.

WELLIVER, J., concurs in separate concurring opinion filed.

BARDGETT, C. J., and DONNELLY, J., dissent in separate dissenting opinions filed.

SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

WELLIVER, Judge, concurring.

I concur. This is the first time since coming to the Court that I have had an opportunity to express any opinion on either the doctrine of comparative negligence or the doctrine of relative fault.

Philosophically, I am persuaded that the doctrine of pure comparative negligence, like that of pure relative fault as it was first announced in Missouri Pacific v. Whitehead and Kales, 566 S.W.2d 466 (Mo. banc 1978), is far more attuned to the needs and realities of modern day society than our existing body of tort case law, rules and statutes.

I recognize that this state should not adopt pure comparative negligence across the board without dealing with contributory negligence, the humanitarian doctrine, contribution, indemnity, joint and several liability, res ipsa loquitur, the rear-end doctrine, the doctrine of strict tort liability, the holding of State ex rel. McClure v. Dinwiddie ¹ that a plaintiff may choose the defendant he desires to sue, interspousal immunity, The Workmen's Compensation Law, ² court rules, instructions, suitable methods for the release of claims where there are multiple defendants, and possibly other matters.

To adopt comparative negligence without undertaking a systematic treatment of this multitude of related issues would be to place the bar on a violent and stormy sea of uncertainty and frustration that would make the post-Whitehead and Kales era seem a serene and placid mountain lake in comparison. Any single opinion that would attempt to deal with all of these issues could only result in a giant legislative enactment by judicial fiat. My inability to find agreement among scholars, judges, lawyers, or my brothers of this court as to the exact form of "comparative negligence" best suited to our social and economic needs also makes me reluctant to do other than concur in the per curiam.

The adoption of pure relative fault in Whitehead and Kales constituted a first step toward the judicial adoption of pure comparative negligence. I interpret our action of this date as a reversal of our prior course which was in the direction of adoption of comparative negligence by judicial action. Having so reversed our course, I believe we should now extricate both the bar and the litigants of this state from the twilight zone of partial pure relative fault created by our prior decisions in Whitehead and Kales and State ex rel. Maryland Heights Concrete Contractors, Inc., v. Ferriss. ³ I believe that we should overrule Whitehead and Kales and return the law of torts in Missouri to whatever degree of stability existed for the one hundred and fifty years prior that decision.

By this opinion I would announce to my former colleagues of the General Assembly that, with respect to comparative negligence, "the ball is now in your court".

I would urge their most thorough study and consideration of the comparative negligence doctrine as a method of redressing injuries resulting from negligent acts. The legislative process has a superior capability for getting the input of the finest legal scholars, the best trial lawyers, and the consumer public in determining the system of tort law best adapted to our present day social and economic needs. "No area of the law cries out more for a clear policy established by democratically elected representatives." American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 617, 146 Cal.Rptr. 182, 208, 578 P.2d 899, 925 (1978).

BARDGETT, Chief Justice, dissenting.

I would adopt a comparative fault system in this case and abandon contributory negligence, last clear chance, and humanitarian doctrines in Missouri.

The purpose of this dissent is to make clear that there is an alternative to the concepts enunciated by Judge Donnelly in his dissenting opinion which is also known as "pure" comparative fault but which does not involve abandonment of joint liability nor permit a person to be joined as a party even though no judgment could be rendered against him.

In the state of California "pure" comparative fault was adopted in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), as opposed to other types of comparative negligence systems, such as the one in effect in the state of Wisconsin which prohibits recovery if the claimant is more than fifty percent negligent. In American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the Supreme Court of California adopted the system of distribution of fault as between tort-feasors very similar to what this court adopted in Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). In American Motorcycle, supra, the Supreme Court of California dealt with the ancillary matters attending the adoption of a comparative fault system and, inter alia, retained joint liability, but as between tort-feasors allowed the same type of apportionment as this Court allowed in the Whitehead & Kales case. The reader may see those cases for the reasoning and details of the system in effect in California.

Essentially, I would adopt the system as set forth in Li v. Yellow Cab, supra, and American Motorcycle Assn. v. Superior Court, supra.

DONNELLY, Judge, dissenting.

I would abandon contributory negligence and the last clear chance and humanitarian doctrines as viable concepts in Missouri and would reverse and remand this case for trial under a concept of Pure comparative fault.

I am mindful of the Classical common law process articulated in R. Bridwell and R. Whitten, The Constitution and the Common Law 13-15 (Lexington, Massachusetts: D. C. Heath and Company, 1977). That process is given flexibility to embrace change by the doctrine "of desuetude, or the repeal of custom by disuse. Just as custom would be gradually introduced and adopted by consent, so might it gradually be abrogated by the 'tacit consent of all.' " Id. at 22.

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