Fay C. COIT, Respondent, v. G. J. BENTZ, Appellant.
No. 48047.
Supreme Court of Missouri, Division No. 2.
July 10, 1961.
Motion for Rehearing or for Transfer to Court en Banc Denied Sept. 11, 1961.
348 S.W.2d 941
EAGER, Judge.
Garrett, Weed & Jones, Kansas City, for respondent.
EAGER, Judge.
This appeal is from an order of the trial court granting plaintiff a new trial on account of error in an instruction, after the jury had found for the defendant. Since plaintiff‘s prayer was for $17,500, we have jurisdiction. The case arises out of an automobile collision in Kansas City. The only points made involve instructions, and we may state the facts briefly.
Plaintiff testified: that he was driving west on Admiral Boulevard, approaching Troost Avenue, in the middle of three west-bound lanes; there was a stop light at the intersection and this could be operated manually by a push button; he saw children at the corner, and the light turned amber when he was three or four car lengths back; he had slowed to 12-15 miles per hour, and stopped about 2-3 feet from the crosswalk. As he stopped with his foot on the brake, he took the car оut of gear and had gotten a cigarette out of his pocket when there was a violent crash at the back of his car. He further testified: that his car was knocked 5-6 feet over the white line; that he got out, recognized the defendant, and they pulled around the corner and talked; plaintiff‘s left bumper guard was knocked off and the “gravel guard” bent; defendant‘s car had some broken grille work; plaintiff felt no personal injuries at that time; he had previously seen, in the mirror, a car behind him; he estimated that he had been stopped 2-5 seconds before the impact. He emphasized on cross-examination that he stopped in the center lane, and had been in it since he entered Admiral from the south at Paseo. He testified that the north lane was used for parking at times, but not during the rush hours, as this was; he had, however, just passed a car which had stopped in the curb lane for some purpose; he admitted that in his deposition he had testified that he was in the “north lane,” but he sought to explain that he meant the more northerly of the two lanes not used for parking; he also said that his car was 8-9 feet from the curb at the time of the impact. He began to note painful injuries the next morning, but these are immaterial here.
Defendant‘s version was: that he was driving alone, as was plaintiff; he was in the center lane of the westbound lanes and he had noted a car ahead of him (which proved to be plaintiff‘s), but this was in the lane to his right; he had slowed to a “stopping speed” as the light at Troost turned to amber, when suddenly and without warning this car in front “swеrved to the left just a little bit * * *,” and came 3-4 feet into defendant‘s lane; he applied his brakes, but his bumper hit the left side of plaintiff‘s bumper just as he stopped; the cars did not move at the impact; he asked plaintiff why he turned over, and the latter replied that “I didn‘t want to hit them people.” He further testified: that hе was 1-3 car lengths behind plaintiff when the latter swerved; that plaintiff‘s bumper guard “flipped” into his grille.
The instruction held erroneous was defendant‘s No. 5; however, in order to understand it adequately, we must quote plaintiff‘s Instruction No. 1, as follows: “The Court instructs the Jury that if you find and believe from the evidence that on the 5th day of November, 1957, plaintiff, Fay C. Coit, was operating an automobile, mentioned in evidence, in a westerly direction on Admiral Boulevard in Kansas City, Missouri, in the second lane for westbound traffic, north of the center line of said Admiral Boulevard, and was approaching the intersection of said Admiral Boulevard with Troost Avenuе, if so, and if you
Defendant‘s Instruction No. 5 was as follows: “The Court instructs the jury that if you find and believe from the evidеnce that at the time and place mentioned in evidence defendant was keeping a lookout ahead for other automobiles, including plaintiff‘s automobile, if so, and if you further find that defendant did have his automobile under control, if so, then you are instructed your verdict should be against plaintiff and in favor of defendant.”
After the first submission of this appeal the court, of its own motion, ordered a rehearing. The case has been rebriefed and reargued; it will not be necessary to consider all the points now briefed. The principal controversies raised in the briefs are whether or not plaintiff submitted the “rear-end collision” doctrine in his Instruction No. 1, whether it was necessary for defendant to converse any such supposed submission in his Instruction No. 5, and, of course, whether Instruction No. 5 was otherwise correct as a converse. Certain other matters will be referred to in the opinion.
It is doubtful, to say the least, whеther plaintiff pleaded the rear-end doctrine as a theory of negligence, but defendant concedes that such might properly have been submitted under the evidence, whether pleaded or not. And see,
We do not find Instruction No. 5 bad for a failure to converse any claimed submission of the rear-end doctrine. And in this we do not mean to depreciate those cases holding that, in conversing a conjunctive submission of different specificatiоns of negligence, the defendant may submit either an exact converse of the instruction, or the exact converse of any essential element, or that he may hypothesize facts which, if true, would disprove one or more essential factual elements of plaintiff‘s case. Liebow v. Jones Store Co., Mo., 303 S.W.2d 660; Dell‘Aria v. Bonfa, Mo., 307 S.W.2d 479; Oshins v. St. Louis Public Service Co., Mo., 254 S.W.2d 630; Alberty v. Sunshine Biscuit Co., Mo., 321 S.W.2d 418. Of course, a converse may not ignore the one real issue. See, for instance, Johnson v. St. Louis Public Service Co., Mo., 255 S.W.2d 815, where negligence in failing to stop was ignored, although such was an integral part of the submission under the “Vigilant Watch” ordinance. The option permitted to the defendant is applicable when plaintiff, who has the affirmative and picks the field of battle, chooses to join in the conjunctive different assignments of negligence which he claims jointly caused the injury.
We do find, however, that Instruction No. 5 was erroneous, entirely independent of any question of the submission of the rear-end doctrine. Plaintiff submitted the hypothesis that defendant “did not exercise the highest degree of care in keeping a lookout ahead to observe plaintiff‘s automobile and its movements, and in keeping the car operated by defendant under control so as to avoid a collision, and * * * that such conduct * * * was negligence, * * *.” (Italiсs ours.) In attempting to converse that submission, defendant merely hypothesized that “defendant was keeping a lookout ahead for other automobiles, including plaintiff‘s automobile, if so, and * * * that defendant did have his automobile under control, * * *” He made no real attempt to follow the wording of the instructiоn; he insists here, however, that he thus submitted an exact converse. Instruction No. 5 required no finding that defendant was not negligent (as otherwise defined) in the respects charged, or that he was acting in the exercise of the highest degree of care with respect to either lookout or control. So far as this instruction was concerned, the jury might be the sole judge of the type of lookout necessary or the extent of control. The importance of this, at least so far as concerns lookout, is emphasized when we stop to note that defendant is legally bound to see what he should have seen in thе exercise of the highest degree of care. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 76. Defendant insists now that the requirement of the highest degree of care appearing in plaintiff‘s Instruction No. 1 and references to “negligence” appearing elsewhere must be read into this instruction, that the jury could not have been misled, and that to hаve defined and delineated the extent of defendant‘s duty in Instruction No. 5 would have been repetitious. Of course, all instructions must be read together. Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 81. Instruction No. 5 did not even refer to other instructions, expressly or by any reasonable implication; it directed a verdict, and because of the omission of а necessary element it was a misstatement of the law, and created a conflict with Instruction No. 1. See also, by analogy, Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578, 581; there the term “in a careful and prudent manner” was held to be in conflict with an instruction requiring the highest degree of care. There was a sharp conflict in the evidence in the present case, and the precise extent of defendant‘s lookout was highly material, as was also his “control,” if indeed the latter is worth anything legally. In the cases cited by defendant where there was no reference to “negligence” in converse instructions it will be found that the converses were not of complete assignments of negligence, as such, but of physical acts constituting vital and necessary elements of plaintiffs’ assignments, — as that defendant did not cross the center line of the road, Frechin v. Thornton, Mo., 326 S.W.2d 122, 127; or that plaintiff fell in stepping from a bus after it had stopped, Rose v. St. Louis Public Service Co., Mo., 205 S.W.2d 559, 561.
In concluding that Instruction No. 5 was erroneous for the reasons last stated,
The order granting a new trial is therefore affirmed.
LEEDY, P. J., concurs in result.
STORCKMAN, J., concurs in separate opinion.
STORCKMAN, Judge (concurring).
In concurring I wish to point out additional authority criticizing “lack of control” as a proper assignment of specific negligence in the operation of an automobile. May v. Bradford, Mo., 348 S.W.2d 133, calls it an “abstract submission” and cites Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 269[7, 8], wherein it is said such a submission “at least was confusing and could be construed as a roving commission.” It has been termed a submission of general negligence which gives the widest kind of roving commission. Highfill v. Brown, Mo., 340 S.W.2d 656, 663 [9]; McCarthy v. Sebben, Mo., 331 S.W.2d 601, 606. See also Kimmich v. Berry, Mo., 319 S.W.2d 546, 547-548; Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 856[8]; and State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, 423[2].
The Bar should be acquainted with the hazard which the continued use of this submission presents.