464 S.W.2d 744 | Mo. Ct. App. | 1971
In this action to recover damages for personal injuries, the plaintiffs have had separate verdicts and judgments thereon in the aggregate amount of $5,700. The defendant appeals.
The casualty which gave rise to this action occurred at the intersection of Highway 13 and an otherwise unidentified “county road” four or five miles north of Springfield, Missouri. Highway 13 at this point runs north and south, and it is intersected at right angles by the county road, which runs east and west. At the time the accident happened — about 3:00 P.M. on Sunday, April 16, 1967 — the weather was clear, the pavement was dry, and traffic on Highway 13 was “heavy.” Highway 13 is a through highway at the place where the collision occurred, and there is a stop sign for eastbound traffic approaching the highway on the county road.
Plaintiff Clyde Hampton was driving his pickup north on Highway 13, accompanied
Plaintiffs also had the testimony of Trooper Gary C. Smith, who investigated the accident as a member of the State Highway Patrol. Trooper Smith was shown some pictures which he identified as being fair and accurate representations of the intersection as it appeared when the accident occurred. These pictures show, among other things, that the county road slopes sharply downgrade as one travels east to the intersection. The stop sign is clearly visible on the right in the picture taken on the county road some 800 yards west of the intersection. Trooper Smith testified that when he arrived Mr. Hampton’s pickup was “off in a ditch * * * on top of a little concrete wall retainer,” and defendant’s vehicle was “sitting just about astraddle the center line [of Highway 13] * * * facing east.” The defendant had told Trooper Smith that she was coming down the hill and the brakes wouldn’t work. She had also said: “* * * I looked and there was a truck coming, and the brakes held the last moment.” The trooper had found skidmarks, approximately 27 feet long, starting to the west of the point of collision and extending east to the defendant’s vehicle. Trooper Smith had also checked the defendant’s brakes shortly after he arrived. He found that they were working properly.
Plaintiffs also made use of a part of the defendant’s pretrial deposition as an admission against interest. The substance of the part of the deposition read to the jury was that “thirty or forty minutes” before the accident the defendant had had trouble stopping her car. Defendant, in her deposition, was asked if her brakes were faulty, and she answered: “It was either the brakes or the steering.” Defendant continued to drive her automobile. She also testified that she had been “given a ticket” for failure to yield the right of way, and she had pleaded guilty to that charge in magistrate court.
The defendant, Mrs. Cantrell, testified that she and a companion had been “riding around out in the country.” Shortly before the accident occurred, defendant had trouble with her brakes; she “had trouble stopping,” but “ * * * finally got stopped.” Defendant had been on the county road before; she knew that she had to go down a steep hill to get to Highway 13, and that there was a stop sign for eastbound traffic. Describing the action of her foot brakes on cross-examination, Mrs. Cantrell said that “ * * * they held some but not enough to stop.” Defendant’s speed did not increase as she went downhill. She did not try to use her emergency brake. Defendant was asked if her emergency brake worked; she answered, “I guess it did. I didn’t try it,” and then stated that it was in proper working order. She “didn’t think” she swerved to try to avoid the collision, and she didn’t sound her horn. After she hit the pickup, a third car hit the rear of her vehicle.
Defendant also had evidence from her companion, Mrs. Lou Ann Van Hise. Mrs. Van Hise testified that as she and defendant went downhill defendant said her
Plaintiffs submitted their cases on a single verdict-directing instruction, Instruction No. 4, which was marked “M.A.I. 17.02 Modified,” and was as follows:
“Your verdict must be for plaintiffs if you believe:
First, defendant either: violated the stop sign, or operated a vehicle when that vehicle had defective brakes, knowing that the brakes were defective, and
Second, defendant’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, as a direct result of such negligence, plaintiffs sustained damage.”
Defendant’s two points on appeal both have to do with this Instruction. She argues first that it was error to give Instruction No. 4 because it submits both ability and inability to stop, and therefore submits conflicting and inconsistent theories of negligence. Further, defendant says, Instruction No. 4 departs from the mandatory requirements of the MAI because it improperly unites separate and distinct claims, thus precluding a separate consideration of each particular claim.
In connection with defendant’s first point — that Instruction No. 4 submits inconsistent and mutually contradictory theories of negligence — some preliminary observations seem appropriate. The defendant does not contend that plaintiffs violated Rule 70.01(b) by failing to use the appropriate MAI instruction, and no such contention was made in the trial court. We do not consider, therefore, the form and content of the instruction, nor whether it would have been more appropriate to submit the case upon approved instructions 17.08 and 14.05. Jackson v. Skelly Oil Company, Mo., 413 S.W.2d 239, 242 [1], Also, it should be noted that in the cases dealing with instructions which submit inconsistent theories of recovery the words “inconsistent” and “contradictory” have been used to indicate various types of incompatibility.
Nevertheless, and to reiterate, the plaintiffs’ alternate hypothesis is not a submission of sudden and excusable brake failure, as discussed, for example, in Bramson v. Henley, Mo., 353 S.W.2d 609, 612-616 [2], for there are ways to stop an automobile other than by application of the foot brakes. Among the means suggested by the authorities are: reducing speed and putting the car into one of the lower gears, especially on hills or grades, see 60A C.J. S. Motor Vehicles § 296, pp. 223-224, and obviously, using the emergency brake. 60A C.J.S. Motor Vehicles § 261b, p. 103. A jury might find that defendant’s brakes were defective and that she courted danger by continuing to drive with the knowledge that they were defective, and still find that in the exercise of the highest degree of care she could have stopped. Even assuming that the hypothesis that defendant “violated the stop sign” includes a finding that she could stop, we believe the theories submitted do not conflict factually and are not repugnant.
Defendant’s other briefed point is that Instruction No. 4 improperly submits the plaintiffs’ separate claims as a unitary demand, thereby precluding separate consideration of each claim. Defendant concedes that the MAI does not expressly require multiple verdict-directing instructions in all cases involving more than one plaintiff, but she argues that such a requirement is to be implied from the form of approved instructions 36.07 and 36.08, both of which advise the jury that separate verdicts must be returned. Consideration of this point requires the statement of some further background.
All three of these plaintiffs were riding in the Hampton pickup. All three claimed to have been injured when it was struck by the defendant’s vehicle. Since plaintiffs Clyde and Lucinda Hampton were husband and wife, and plaintiff Roger Hampton was their son, defendant’s negligent act gave rise to six separate and distinct causes of action based on these personal injuries. Each spouse had a separate cause of action for personal injuries. Neither had any interest in the claim of the other for personal injuries, and neither was a necessary or proper party to the other’s action. Lee v. Guettler, Mo., 391 S.W.2d 311, 313 [4-6]. In addition, each spouse had a claim for loss of consortium based upon the injuries to the other spouse, and these claims were separate, each being an “entirety unto itself.” Rea v. Feeback, Mo., 244 S.W.2d 1017, 1019 [2]; Robben v. Peters, Mo.App., 427 S.W.2d 753, 756-757 [4]. Further, the injury to plaintiff Roger Hampton, who was nine years old when the accident occurred, gave rise to two separate and distinct claims, one for personal
Plaintiffs did not file separate actions and then seek to consolidate them for trial, but asserted all the separate claims or causes of action which arose out of the casualty in a single petition. We need not set out the allegations of the petition in detail. It is sufficient to note that the petition is laid in six counts, which are, for our purposes, as follows: Count One, which asserts plaintiff Clyde Hampton’s claim for personal injuries and the claim for expenses of his son’s treatment; Count Two, which sets out plaintiff Lucinda Hampton’s claim for personal injuries; Counts Three and Four, in which the two claims for loss of consortium are asserted; Count Five, in which plaintiff Roger Hampton’s claim for personal injuries is asserted by his father as next friend; and Count Six, in which plaintiff Clyde Hampton’s claim for property damage is set out. Counts Three, Four and Six (the claims for loss of consortium and for property damage) were dismissed at the close of all the evidence. Instruction No. 4 therefore submitted the plaintiffs’ separate claims for personal injuries and plaintiff Clyde Hampton’s claim for expenses of treatment for his son as a single, unitary demand.
We assume, without deciding, that the plaintiffs properly united their several claims in a single action under the permissive joinder provisions of Rule 52.-05(a), V.A.M.R.
We cannot approve Instruction No. 4, but the merits of defendant’s assignment of error cannot be determined by considering it in isolation. Instructions must be read together as an entire charge. Jefferson v. Biggar, Mo., 416 S.W.2d 933, 939 [5]. Defendant’s assignment of error, as expanded in the “argument” part of her brief, is that Instruction No. 4 was misleading — “a source of confusion” — because it indicated to the jury that all the plaintiffs must win or all must lose. As we have said, we do not believe we are dealing with a positive violation of an MAI requirement, and we therefore do not presume that the error is prejudicial, but consider whether or not the error demonstrated was one materially affecting the merits of the action. Rule 83.13(b), V.A.M.R.; Machens v. Machens, Mo., 263 S.W.2d 724,
Within the limitations noted, we find no prejudicial error, and the judgments are therefore affirmed.
. For a discussion of the precedents prior to the promulgation of present Rule 70.01, Y.A.M.R., and the adoption of the Missouri Approved Instructions, see Richardson, A Codification of Missouri Rules Relating to Instructions in Civil Cases, 4 Mo.Bar C.L.E. Series, § 2.3, pp. 30-33 (1961).
. See Franklin v. Shelton, 10 Cir., 250 F.2d 92, 95 [1, 2], and Thomson v. United Glazing Co., D.C.N.Y., 36 F.Supp. 527, 528 [1], applying Fed.R.Civ.P. 20(a), which is substantially the same as Rule 52.05(a).