Williams v. Tucker

• Decision Date: 05 June 1920
• Docket Number: No. 2581.,2581.
• Citation: 224 S.W. 21
• Parties: WILLIAMS v. TUCKER.
• Court: Missouri Court of Appeals

224 S.W. 21

WILLIAMS v. TUCKER.

No. 2581.

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by T. E. Williams against E. G. Tucker. There was a verdict for defendant, and from an order granting new trial, defendant appeals. Affirmed.

Allen & Allen, of Springfield, for appellant. Dan M. Nee, of Springfield, for respondent.

FARRINGTON, J.

I am unable to concur in the result reached in the opinion prepared by STURGIS, J., holding that the trial court committed error in granting the motion for a new trial, for the reason, as stated in the order, that defendant's instruction No. 2 refers the jury to the pleadings for the issue. This instruction is more than an instruction on the burden of proof. In fact, as it appears to me, the first clause, or burden of proof clause, is but an incident to the proposition the defendant was attempting to have declared as the law of the case by the court to the jury. The instruction quoted in the opinion by STURGIS, not only advises the jury as to the weight or preponderance of evidence which the plaintiff must produce, but launches out into the field of the extent or amount of evidence that plaintiff must produce to the satisfaction of the jury before there can be a recovery. The jury must, by this instruction, find not only such issues as are necessary to make plaintiff's case, but undertakes to define the issues that will defeat a case of negligence made against the defendant by plaintiff's contributory negligence. Under these circumstances, therefore, it is a wrong conclusion to hold that this is merely a secondary burden of proof instruction, and the cases cited concerning burden of proof instructions are inapplicable here.

There seems to me to be a graver error in this instruction than that of merely referring the jury to the pleadings for the issue, and that is this (quoting from the instruction):

"And before you can find the issues for the plaintiff, you must find that the collision complained of was the result of defendant's negligence as charged."

On turning to the pleadings, we find that there were three acts of negligence charged, and there was evidence offered in support of the three acts as charged. This instruction, then, is certainly open to the construction that, before plaintiff can recover, he must show that the defendant was guilty of all three of the acts of negligence laid at his door in the pleadings and in the evidence This, of course, is casting a greater burden upon the plaintiff than he should have borne, because the proof of any one of the acts to the satisfaction of the jury would have sustained a verdict of recovery. That it is subject to this construction is further shown by defendant's own language in the instruction farther on, where it is said:

"Although you may find from the evidence that the defendant's employé was guilty of the acts [italics ours] of negligence charged in the petition."

As I read this instruction, a jury might well conclude that the defendant was careless and negligent hi failing to sound his horn or give a warning, and might have further concluded that he was not negligent in operating his machine at a high rate of speed, and was not guilty of negligence in so carelessly operating his machine as to have avoided the accident, after he saw or could have seen the plaintiff, and yet they could not, although finding that he was negligent in failing to give a warning, find for the plaintiff, because the instruction is certainly subject to a construction that they must find all three of the grounds, which were alleged in the petition, and upon which evidence was introduced.

I therefore think the action of the trial court should be upheld, not only upon the grounds stated in the order, but on the ground last mentioned. The motion for a new trial complained of the action of the trial court in giving defendant's instructions.

The judgment is affirmed.

BRADLEY, J., concurs.

STURGIS, P. J.

On November 11, 1918, during the celebration a Armistice Day, the plaintiff's automobile, driven by his daughter, collided with defendant's automobile driven by his chauffeur at the junction of Jefferson street and McDaniel avenue in Springfield, Mo. Plaintiff sues for injuries to his automobile caused thereby. The defendant's auto bus was going south on Jefferson street, and plaintiff's automobile was going east on McDaniel avenue, and was in the act of turning or about to turn north on Jefferson street when the two collided. The plaintiff charges the defendant with negligence as to rate of speed, not giving any warning, and not keeping a proper lookout for approaching vehicles. The defendant denies his negligence, and charges negligence on plaintiff's part in much the same respects as charged by plaintiff, which he says caused or contributed to the collision.

We may safely say that the evidence of each party convicted the other of negligence, but the jury found for defendant, either by acquitting him of negligence, or convicting plaintiff of contributory negligence, it matters not which. The case was submitted to the jury on the evidence, and instructions covering the theories of the respective parties. The jury found for defendant, but the court granted the plaintiff a new trial, for the reason, as stated by it, that the court erred in giving this instruction on defendant's behalf:

"You are instructed that the burden of proof is on the plaintiff to establish his case by preponderance, or greater weight of the evidence, and before you can find the issues for the plaintiff you must find that the collision complained of was the result of defendant's negligence as charged, and although you may find from the evidence that the defendant's employé was guilty of the acts of negligence charged in plaintiff's petition, yet if You further find and believe from the evidence that the plaintiff, through his agent, was also guilty of the act or acts of negligence charged, and that such negligence concurred with defendant's negligence (if you believe there was such negligence) in causing the collision, that is, that both parties were guilty of negligence, and that such joint negligence caused the collision and damages, then your verdict must be for the defendant."

The defendant insists that, even if this instruction is erroneous, a new trial ought not to have been granted, because, under the evidence, the plaintiff cannot recover, and the jury should have been instructed to find for defendant. In the view I take of the case it will not be necessary to decide the point whether or not plaintiff was guilty of contributory negligence as a matter of law. I concede that plaintiff made a case for the jury, but he was given a jury trial, and lost. That is final, unless there was such error against him as demands a new trial.

The instruction above quoted is assailed as erroneous, and such was the view of the trial court, in that it refers the jury to the pleadings for the issues involved. That such is error as a general rule we concede, as shown by the cases cited by defendant. Dassler v. Wisley, 32 Mo. 498, 501; Magrane v. Railroad, 183 Mo. 119, 130, 81 S. W. 1158; Webb v. Carter, 121 Mo. App. 147, 155, 98 S. W. 776. The reason underlying the rule, to wit, that the pleadings are addressed to, and are to be interpreted by, the court, and not by the jury, is shown in Jordan v. Transit Co., 202 Mo. 418, 428, 101. S. W. 11, and Blackmore v. Railroad, 162 Mo. 455, 463. 32 S. W. 993.

We think, however, that this rule ought not and does not apply to an instruction on such a collateral matter as the burden of proof, and such is the character of the instruction here in question. An examination of the authorities above cited, and many others might be added, show that the court was speaking of instructions, usually those for plaintiff, which state, or should state, the issues to be determined, and what facts, if found to be true, will warrant a recovery. It would be manifest error, had the court in this case told the jury to find for plaintiff, if they found that defendant was guilty of the acts of negligence, or any of them, stated in the petition, or was guilty of negligence in the manner claimed by plaintiff, or any such general statement, without setting forth the particulars constituting the negligence. The error, however, does not lie in the fact that the instruction refers to the pleadings, but that the jury are not told by the instructions themselves what the issues are, and what facts, if found, will warrant a recovery. As said by Williams, J., in Hartpence v. Rogers, 143 Mo. 623, 633, 45 S. W. 650, 652:

"The third instruction is also objected to, on the ground that it refers the jury to the petition to ascertain the issues. After setting out all the facts necessary to entitle plaintiff to recover, it adds, `as stated in the petition.' This is not error. It comes within the rule in Britton v. St. Louis, 120 Mo. 437, and State v. Scott, 109 Mo. 226."

In Lackland v. Railroad, 101 Mo. App....