Watts v. Moussette

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 487,337 Mo. 533
• Parties: Minnie Ruth Watts v. A. E. Moussette and Mrs. A. E. Moussette, Appellants
• Court: Missouri Supreme Court

85 S.W.2d 487

337 Mo. 533

Minnie Ruth Watts v. A. E. Moussette and Mrs. A. E. Moussette, Appellants

Supreme Court of Missouri

July 30, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Affirmed and remanded.

Walter Wehrle and Edwin Rader for appellant.

(1) Instruction 3 is not broader than the pleadings for the reason that, had the defendants, in the case at bar, filed merely a general denial, they were entitled to have read to the jury such an instruction. Giesendorf v. Brashear Trust Co., 54 S.W.2d 72; Connole v. Railroad Co., 21 S.W.2d 907; Bragg v. Met. St. Ry. Co., 192 Mo. 331. (a) The pleading in the defendant's answer of the specific acts of negligence of Everett Mabary was in effect a general denial, cases under point 1. (2) Instruction 3 is not broader than the evidence for there is ample testimony in the record to show that the driver of the automobile in which plaintiff was riding was operating his automobile at a high and excessive rate of speed, to-wit fifty miles per hour, and was also at the point of collision driving his car on the wrong side of the road, in violation of the laws of this State. Giesendorf v. Brashear Truck Co., 54 S.W.2d 72. (3) Defendant's Instruction 3 is a correct statement of the law to the effect that if the negligence of the driver of the automobile in which the plaintiff was riding was the actual and sole cause of the collision, the plaintiff cannot recover against the defendant; however, the negligence of the driver is not to be imputed to the plaintiff. Schweig v. Wells, 26 S.W.2d 851; Peppers v. Ry. Co., 295 S.W. 757; Boland v. Ry. Co., 284 S.W. 141; Felts v Spesia, 61 S.W.2d 402; Blech v. Berzon, 61 S.W.2d 201.

William R. Moore, Sullivan, Reeder & Finley and Hugh H. Sullivan for respondent; Jones, Hocker, Sullivan, Gladney & Reeder of counsel.

(1) The answer charged Mabary with specific acts of negligence as the sole cause of the accident. Instruction 3 submitted general negligence. The instruction is broader than the pleading. Richardson v. Rys. Co., 288 Mo. 268; Owens v. McCleary, 313 Mo. 224; Priebe v. Crandall, 187 S.W. 608; Detrich v. Ry. Co., 143 Mo.App. 180; Conway v. Street Ry. Co., 161 Mo.App. 501. (2) Instruction 3 was broader than the evidence. It gave the jury no guide and permitted the jury to find Mabary guilty of negligence not proven. Owens v. McCleary, 313 Mo. 224; Priebe v. Crandall, 187 S.W. 608. (3) Plaintiff was without fault. Mabary was driving along the highway on the right side of the road. Defendant, driving in the opposite direction, turned into and collided with the left rear side of the Mabary car. There was no evidence to warrant the giving of the "sole cause" instruction. Felts v. Spesia, 61 S.W.2d 405; Smith v. Railroad Co., 321 Mo. 105. (4) The defendants were liable if guilty of any negligence contributing to the accident. That was the sole issue. Instruction 3 clouded that issue and was misleading and confusing. Crowley v. Worthington, 71 S.W.2d 744; Decker v. Liberty, 39 S.W.2d 548; Collins v. Beckmann, 79 S.W.2d 1056. (5) The trial judge is vested with sound discretion in the granting of a new trial and when the trial court finds error in an instruction, the appellate court is reluctant to interfere therewith. Lorenzen v. United Rys., 249 Mo. 182; Stafford v. Ryan, 276 S.W. 636; Strother v. Sieben, 220 Mo.App. 1027; Ismert-Hincke Co. v. Mercurio Bros., 243 S.W. 410; Ittner v. Hughes, 133 Mo. 688. (6) The evidence shows that the defendant saw, or in the exercise of due care could have seen, the plaintiff's car in or approaching a position of peril in time to have avoided the collision, and that the trial court erred in refusing to give plaintiff's Instruction D. Bartmer v. Darst, 285 S.W. 449; Majors v. White, 247 S.W. 235. (7) An order granting a new trial will not be disturbed where a good reason for a new trial exists, though the trial court assigned a bad or insufficient reason therefor. Emmons v. Quade, 176 Mo. 28; Chandler v. Gloyd, 217 Mo. 394, 116 S.W. 1073; Williams v. Ry. Co., 233 Mo. 666, 136 S.W. 304; Mockowik v. Railroad Co., 196 Mo. 550.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is a guest case to recover $ 15,000 for personal injuries alleged to have been received in an automobile collision. On trial to a jury verdict went for defendants. Plaintiff's motion for a new trial was sustained and defendants appealed.

The trial court at the time a new trial was granted filed a memorandum stating the reasons for sustaining the motion as follows: "Instruction No. 3 offered by and given upon behalf of the defendants submitted general negligence when specific negligence was pleaded. It was broader than the pleadings and broader than the evidence; The court erred in giving same."

Instruction No. 3 is as follows: "The Court instructs the jury that at the time and place mentioned and complained of in the evidence, it was the duty of the driver of the automobile in which plaintiff was riding, in operating the same, to exercise the highest degree of care, and to drive same at a rate of speed so as not to endanger the life or limb of any person or property of another.

"Now you are further instructed, that if you find and believe from the evidence that the collision mentioned and complained of was proximately and solely caused by the negligence of the driver of the automobile in which plaintiff was riding, then you will find the issues for the defendants, but you are further instructed that the negligence of the driver of the automobile in which plaintiff was riding, is not to be imputed to plaintiff in determining whether said driver's negligence, if any, was the sole and proximate cause of the collision mentioned and complained of."

Plaintiff was injured in a collision between the automobile in which she was riding and the automobile of defendant, A. E. Moussette and being driven at the time by his wife. The collision occurred in St. Louis County, about ten-thirty p. m., at the junction, called intersection, of Denny Road, an east and west road, and Lindbergh Boulevard which, at the place, extends from the northwest to the southeast. Denny Road terminates at the junction. Plaintiff alleged eight specific grounds of negligence, but it is not necessary to set these out.

The answer is a general denial, a plea of contributory negligence and also a plea that plaintiff's injuries were caused solely, directly and proximately by the negligence of Everett Mabary, driver of the automobile in which plaintiff was riding. Defendants in their answer charge a number of alleged specific acts of negligence on the part of plaintiff, but since no point is made here on the alleged contributory negligence of plaintiff it is not necessary to state the grounds of alleged contributory negligence.

As stated it is alleged in the answer that plaintiff's injuries were caused solely by the negligence of Mabary, and his alleged negligence is as follows: (1) In negligently operating his automobile at a high and excessive rate of speed and at a rate of speed which was dangerous under the circumstances and which was dangerous to the life and limb of persons then and there being and particularly to plaintiff; (2) in negligently failing to keep a lookout for any other automobile that might be approaching, especially the automobile of defendants, and in negligently attempting to cross the intersection while traveling at a rate of speed so as to endanger the life and limb of plaintiff, when Mabary saw or by the exercise of the highest degree of care could have seen that defendant's automobile was about to make a left turn into Denny Road, in time to have stopped or slowed down and allowed said automobile to complete its left turn; (3) in negligently attempting to cross the intersection without looking for automobiles that might be attempting to make a left turn into Denny Road, when he knew or by the exercise of the highest degree of care, for his own and plaintiff's safety, could have known, that there was danger of a collision if he so attempted to cross said intersection; and (4) in negligently speeding up his automobile and attempting to pass in front of defendants' automobile, when he knew or by the exercise of the highest degree of care could have known that by so doing there was danger of a collision if he speeded up his automobile and attempted to cross in front of defendants' automobile which was at the time attempting to make a left turn.

The motion for a new trial was sustained on the theory that Instruction No. 3 submitted the sole negligence defense on general negligence, instead of submitting this defense on the specific acts of negligence charged against the driver of the automobile in which plaintiff was riding, and supported by the evidence. Plaintiff, defending the action of the trial court in granting a new trial, cites in her brief cases holding that when a plaintiff relies upon specific negligence the cause must be submitted, if a submissible case is made, upon some specific negligence charged and supported by the evidence. That such is the law is not questioned. [Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022; Stermolle v. Brainard (Mo. App.), 24 S.W.2d 712.] Plaintiff, reasoning by analogy, argues that if a plaintiff must submit specific negligence when such is charged in the petition, then the defendant in the instant case, having charged specific negligence against the driver, Mabary, as the sole cause of plaintiff's injuries, must, in submitting the sole negligence defense, submit the negligence alleged in the answer and supported by the evidence. Neither plaintiff nor defendant call our attention to a case directly in point and we find none.

To support Instruction No....