Young v. Grotsky
| Decision Date | 09 November 1970 |
| Docket Number | No. 2,No. 54505,54505,2 |
| Citation | 459 S.W.2d 306 |
| Parties | Rose YOUNG, Appellant, v. Esther GROTSKY, Defendant, and Bi-State Development Agency, Respondent, and Robert Ginther, Respondent |
| Court | Missouri Supreme Court |
Samuel A. Goldblatt, St. Louis, for appellant.
Richard M. Zuckerman, St. Louis, for respondents.
STOCKARD, Commissioner.
Plaintiff has appealed from a judgment for defendants entered pursuant to jury verdict in her action for damages in the amount of $40,000 for personal injuries.
Plaintiff's points on this appeal pertain only to two instructions given at the request of defendants Bi-State Development Agency and Robert Ginther. This results in no issue being presented as to the judgment in favor of defendant Esther Grotsky. Only a brief summary of the evidence is required.
At about 10:40 o'clock of the evening of February 25, 1967, plaintiff alighted from a bus of Bi-State Development Agency being operated by Robert Ginther. Plaintiff testified that Mr. Ginther 'motioned' her to cross in front of the bus, and that when she was at the center of the bus he 'raced the motor.' This caused her to move quickly into the street, and when she was at or near the center of the street she was struck and injured by an automobile operated by Esther Grotsky.
Plaintiff's case against Esther Grotsky was submitted on humanitarian negligence. Her case was submitted against defendants Bi-State Development Agency and Robert Ginther by Instruction 4 on primary negligence in that 'Robert Ginther motioned plaintiff to cross in front of the bus when it was unsafe to do so and then raced motor causing plaintiff to move hurriedly out into street.' The instruction then submitted in separate paragraphs that 'defendants were thereby negligent' and that 'such negligence directly caused or directly contributed to cause damage to plaintiff.'
Plaintiff contends that prejudicial error resulted in the giving of the following converse instruction:
'Your finding must be for defendants Bi-State Development Agency and Robert Ginther under Instruction 4 if you do not believe:
that said defendants were negligent or
that plaintiff sustained damage.'
Plaintiff contends that Instruction 5 is erroneous because (1) it 'in effect permits the giving of two converse instructions when only one is authorized,' and (2) it is 'not a true converse' instruction and therefore must be supported by evidence, but there was no evidence that plaintiff was not injured.
Instruction 5 followed the 'First Method' set forth in MAI 29.01 for giving a converse instruction with the modification required when plaintiff submits on both primary and humanitarian negligence, as was done in this case. The 'First Method,' as modified, provides that the converse instruction should begin with the phrase "Your () must be for (defendants) if you do not believe' followed by one or more propositions submitted by the verdict directing instruction and in substantially the same language used in the verdict directing instruction.' (Italics added.) In MAI 29.02 the forms of converse instructions under the 'First Method' include 29.02(2) conversing negligence and 29.02(3) conversing damages. Instruction 5 followed these forms.
Plaintiff argues that by use of the disjunctive 'or' Instruction 5 permitted the giving of two converse instructions contrary to the statement in 'Notes on Use' following MAI 29.02 that 'Defendant may give only one converse for each verdict directing instruction.' In Instruction 4, the verdict directing instruction to which Instruction 5 was directed, plaintiff submitted that defendants were 'negligent' and that she sustained 'damages.' If the jury believed that either did not occur plaintiff was not entitled to recover. See Schaefer v. Accardi, Mo., 315 S.W.2d 230. It would, therefore, have been improper to submit the two propositions with the conjunctive 'and' because the jury would have been instructed that its finding must be for defendants only in the event it did not believe both propositions. Defendants did not submit a separate converse instruction to plaintiff's damage instruction, as was attempted to be done in Pauling v. Rountree, Mo.App., 412 S.W.2d 545. MAI makes it clear that when the 'First Method' of a converse instruction is used, there may be included in the one permitted converse instruction more than one proposition, provided only that the propositions conversed are submitted in the verdict directing instruction. This is what defendants did in Instruction 5. The reference in 'Notes on Use' that a defendant may give 'only one converse' for each verdict directing instruction means 'only one converse' instruction.
We consider now plaintiff's contention that the second proposition submitted in Instruction 5, that plaintiff sustained 'damage,' is not a 'true converse' and had to be supported by evidence. She argues that 'there can be no question but that plaintiff was injured.' That is true if the jury believed plaintiff's evidence. But plaintiff had the burden to prove damage which was essential to her right to recover, Schaefer v. Accardi, supra, and absent a judicial admission on the part of defendants, which did not occur, 'the credibility of the witnesses giving oral testimony establishing the affirmative remains for the jury.' Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. See also Schaefer v. Accardi, supra, and Beezley v. Spiva, Mo., 313 S.W.2d 691. It is stated in the explanation of the 'First Method' of submitting a converse instruction, MAI 29.01, that 'This form requires no independent evidence to support it.' In MAI 29.02(3) the form there set forth as an example of a converse instruction using the "If you do not believe' introduction' (which is the 'First Method' and which requires no independent supporting evidence) contains this language: 'Your verdict (or finding) must be for defendant * * * if you do not believe that plaintiff sustained damage.' We necessarily conclude that the converse of damages in a verdict directing instruction, when submitted in the language set forth in the 'First Method' and in MAI 29.02(3), is a true converse and does not require separate evidentiary support.
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