Warriner v. Eblovi

• Decision Date: 07 September 1972
• Docket Number: No. 25768,25768
• Citation: 485 S.W.2d 700
• Parties: Peggy A. WARRINER, Respondent, v. Anthony EBLOVI, Jr., and Commercial Candy Co., Inc., a corporation, Appellants.
• Court: Missouri Court of Appeals

Page 700

485 S.W.2d 700

Peggy A. WARRINER, Respondent, v. Anthony EBLOVI, Jr., and Commercial Candy Co., Inc., a corporation, Appellants.

No. 25768.

Missouri Court of Appeals, Kansas City District.

Sept. 7, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 2, 1972.

Application to Transfer Denied Nov. 13, 1972.

Samuel J. Molby, Kansas City (Watson, Marshall & Enggas, Kansas City, of counsel), for appellants.

Jack A. Cochran, Blue Springs (Thomas D. Cochran, Piedimonte & Cochran, Independence. of counsel), for respondent.

PER CURIAM.

This is an appeal from a final judgment of $30,000.00 for plaintiff (after she complied with an order of remittitur of the trial court of $15,000.00 from the jury's award of $45,000.00) for personal injuries. The injuries resulted from a collision of defendant's one-and-one-half ton delivery truck with the rear end of plaintiff's station wagon at 4519 West 69th Street, Prairie Village, Kansas, on December 18, 1967.

Under their Point I, defendants contend that the court erred in giving plaintiff's Instruction No. 4 for the reason that 'it applied the Missouri strict liability concept in a rear end collision case and not the ordinary rules of negligence applied by the state of Kansas.' Instruction No. 4, which was given in the form prescribed by MAI 17.16, is this:

'Your verdict must be for plaintiff if you believe:

'First, defendants permitted their truck to come into collision with the rear of plaintiff's automobile, and

'Second, defendants were thereby negligent, and

'Third, as a direct result of such negligence, the plaintiff sustained damage unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.'

Defendants misconceive the nature of the rear end doctrine of this state. It does not impose 'strick liability' as that term is usually employed. 'It is 'strict liability' when neither care nor negligence, neither good nor bad faith, neither ignorance will save the defendant.' Fresno Air Service v. Wood, 232 Cal.App.2d 801, 43 Cal.Rptr. 276, 279(5). Strict liability in tort does not rest on negligence, Williams v. Ford Motor Company, Mo.App., 454 S.W.2d 611, nor is contributory negligence, ordinarily applied, a defense to strict liability, Keener v. Dayton Electric Mfg. Co., Mo., 445 S.W.2d 362. Under all of the cases in this state it is clear that a following motorist's liability in a rear end collision case is predicated upon negligence. See the leading case of Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, and cases following it, Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360; and Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, 880. See also McVey v. St. Louis Public Service Co., Mo., 336 S.W.2d 524, which held it not to be error to predicate defendant's liability on the single finding that the bus overtook and collided with the rear of plaintiff's automobile. Note here also that MAI 17.16 permits the affirmative defense of plaintiff's contributory negligence (if supported by the evidence) which defense was here submitted in Instruction No. 5.

Although it is not clear, apparently what defendants are arguing is that Instruction No. 4 should have hypothesized defendants' acts of negligence in more detail, such as failure to keep a proper lookout, following too closely, or using excessive speed, and the like. (Compare Pattern Instructions for Kansas, 8.02, 8.03 and 8.21, mentioned by plaintiff in her brief.) Suffice it to say that there exists no appreciable difference between the substantive laws of Kansas and Missouri as contained in KSA 8--543 and Section 304.017, RSMo 1969, V.A.M.S., both prohibiting the drivers of motor vehicles from following another vehicle more closely than is reasonable and prudent. The substantive laws of both states in this regard are practically the same. See Hamilton v. Ferguson, et al., 181 Kan. 474, 312 P.2d 232, 234, where the court said, '* * * the jury might reasonably infer that * * * defendant Zuercher failed to keep a proper lookout or have his car under control so that he was able to turn it aside and avoid striking the truck in which plaintiff was riding, and that he followed too closely behind such vehicle.' See also Deemer v. Reichart, 195 Kan. 232, 404 P.2d 174. The propriety of the giving of Instruction No. 4 is thus controlled and approved by Meredith v. Missouri Pacific Railroad Company, Mo., 467 S.W.2d 79, 82(1--3): 'Appellants contend that, since this case was tried under Kansas law, there was no applicable MAI and therefore there could have been no deviation. Kansas law, of course, does not apply as to procedure and procedural questions. Neve v. Reliance Insurance Company of Philadelphia, Mo.App., 357 S.W.2d 247, 249(1, 2). The form of instruction is a procedural matter governed by the law of Missouri. If the Missouri Approved Instructions include an instruction which correctly states the substantive law of Kansas, the approved instruction must be given. Supreme Court Rule 70.01, V.A.M.R.' The spirit and purpose of MAI in submitting only ultimate issues is complied with in Instruction No. 4. MAI, p. XXIII. The courts of Missouri have no concern with the procedure of Kansas as contained in published Kansas Pattern Instructions. Instruction No. 4 is not in error, and defendants point to no case so holding, and Point I is overruled.

Defendants claim error in the court's refusal to give their offered Instruction No. 9. In addition to submitting plaintiff's failure to signal her intention to turn into her private residential driveway (as the evidence showed), and that she suddenly slowed or stopped her automobile without an adequate and timely warning, Instruction No. 9 submitted, additionally: 'or in approaching the intersection of her driveway with the roadway intending to turn right, failed to drive her automobile in the portion of the right half of the roadway nearest the curbline; * * *' The evidence was that West 69th Street at the scene of the collision was about thirty feet wide. It had eastbound and westbound lanes for traffic and a lane for parking on its south side. Plaintiff testified that she was travelling in the eastbound traffic lane, which left the parking lane to her right, and defendant Eblovi was travelling in the same lane as she was. Eblovi testified also that he was following plaintiff in the same eastbound lane about three to four car lengths behind her, and two to three car lengths behind her when she made a slight angle and put on her brakes at a driveway. Both had been travelling at about the same speed, 20 to 25 miles per hour. At the time of the collision, the rear of plaintiff's station wagon was out in the street about 10 feet.

Defendants urge that the above quote from Instruction No. 9 is proper under Section 8--544, KSA, requiring that an approach for a right turn at an intersection be made as close as practical to the right-hand curb or edge of the roadway; and Section 8--537, requiring that vehicles proceeding at less than the normal speed of traffic at the time and place and under existing conditions shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway.

Obviously, these two statutes relate to right turns at street intersections, and to vehicles proceeding at less speed than normal traffic at the time. There is no evidence in this case from which it could be found that plaintiff violated either statute. And even if that evidence were existent, the offered instruction did not contain the hypothesis of the statute that plaintiff failed to drive her vehicle as close as practical or practicable to the right-hand curb or edge of the roadway. For these reasons, there was no error in refusing Instruction No. 9, and Point II is overruled.

Defendants say the following argument of plaintiff's counsel was erroneously allowed by the court over their objection that it amounted to plaintiff's instructing the jury as to matters of law:

'Now, the Court said if they struck her in the rear, and there has been no other evidence except the fact that he did strike them in the rear--I had the reporter type up a transcript of Mr. Eblovi's testimony so that I would have it word for word, and I said,

'Questions: Now, your truck did strike her car in the rear end?

'Answer: Right.'

'So, the Court says if that's the case, then, he's instructing you as the Jury, not me, not Mr. Molby, but His Honor is instructing you the law in this case is if his truck struck my client's car in the rear, you must find a verdict and return it on behalf of the plaintiff,--

'MR. MOLBY: If the Court, please,--

'MR. THOMAS COCHRAN: (Continuing)--unless,--

'MR. MOLBY: Excuse me.

'MR. THOMAS COCHRAN: (Continuing)--That's all right, Mr. Molby,--unless plaintiff either failed to signal her intention to turn.

'Mrs. Warriner testified to you about how she made her signal to turn.

'(Whereupon, the following proceedings were had in the presence but OUT OF THE HEARING OF THE JURY:)

'MR. MOLBY: If the Court, please, I desire to object to the initial statement of counsel to the effect that the existence of this collision entitled the plaintiff to recover. There is a further requirement in Instruction No., I believe, 2 that the Jury find that the defendants were negligent.

'THE COURT: The objection is overruled. You will have a chance to argue and the Jury has the written instructions that they can read.'

Defendants did argue the matter of Eblovi's negligence or liability.

In State ex rel. State Highway Commission v. Bailey, et al., 234 Mo.App. 168, 115 S.W.2d 17, a condemnation case, there was nothing in the court's instruction to warrant an argument that plaintiff had the right to deprive defendants entirely of ingress and egress to and from their property, and the objection to the argument was thus properly sustained. In Stroh v. Johns, Mo., 264 S.W.2d 304, the argument was...