*1 and W. D. the relation of Carlisle S. Grisham at Missouri State Distributing Firm of Sooner Composing the Bell, Copartners, Bailey Perry E. Relators, T. Allen, Walter Company, Appeals. Judges Springfield of The Court Smith, Robert J. (2d) 1080. February Two, 21, 1939. Division *2 for relators. Miller Mann, Mann & Ruarle, Mayfield and respondents.
W. I. & Ruarle for *3 BOHLING, rulings Springfield C. Certiorari to review Appeals Court of Freewald, and Bell v. Grisham 349. The case reaches reas- writer signment. The case arises by out of a collision owned Grisham between truck Bell, relators plaintiffs below, herein coupe Ford by owned V. W. damages Freewald. instituted for Plaintiffs suit truck, predicating their recovery rule the humanitarian as well negligence on part of defendant. Defendant’s a general answer was counterclaim, re- predicating denial *4 covery under the primary negligence and on rule humanitarian part plaintiffs’ of employee. Plaintiffs’ answer to defendant’s coun- general terclaim denial, was a coupled contributory of pleas with negligence. a appealed judgment Plaintiffs de- from of for $1500 fendant. Defendant submitted his ease on instruction two instructions —an on the damages measure of reading and an (230 Mo. instruction
l. c. 95 S. W. 355) l. c. : jury
“The they are instructed that if find and believe from evidence that by defendant and injured defendant’s were wife reason coming of his automobile truck, being into with then collision a run operated by and employee servant and plaintiffs, of the and at such time driving the defendant was upon his automobile or that to right of the of highway center upon which he was travel- ing, shown, if plaintiffs’ and that being negli- truck then was gently upon driven the left hand side of the highway, center of the considering the it traveling, shown; direction was if and that a as shown, defend- if being driven, truck so plaintiffs’ result of direct the de- collision, and that into truck came plaintiffs’ ant’s car and degree of care highest of the in the exercise at the time
fendant was for defendant.” jury will find the issues then the upon part, his it assignment relators’ over approved instruction Respondents ignored the humanitarian doctrine. completely recovery $400; defendant’s sought a petition Plaintiffs’ turn, had the litigant, in recovery a Bach counterclaim, $5000. (l. c. respondent’s opinion defensive. Reference to offensive and other instruction discloses that defendant’s 355, respectively) the issues for here material: “If find read, in so far as damages counterclaim, they him such his will allow the defendant on to be construed as author questioned If the instruction is . . .” negligence of izing pleaded for defendant on defendant’s a verdict rule, presented under the humanitarian an plaintiffs’ servant counterclaim, obviously that, in by it is defective for defendant’s ’ finding -ought instance, required plaintiffs it no that servant saw or in in position peril defendant of imminent time there to have seen after, by highest degree care, the exercise of the to have avoided (see, among others, Atchison, Ry. the collision Keels v. T. & F.S. Co., 62, 75(1), 77(3), 433, 438(5, 7); 167 S. W. Zimmerman 476, 484), and, corollary v. Hannibal & Railroad St. J. thereto, permitted recovery it aof under the humanitarian rule for negligence plaintiffs’ (State antecedent ex rel. servant Bland, 322 (2d) 798, cited). 15 S. W. and cases quoted objectionable To the writer the instruction also appears in far purports so as it to cover a plaintiffs’ pleaded defense to proved by any humanitarian ease. It is unrestricted reference to other finding instruction the case. It is not limited to a for de- fendant on defendant’s counterclaim. It directs verdict for de- upon finding fendant hypothesized facts on the entire case—(cid:127) plaintiffs’ action, cause of thereto, defense defendant’s defendant’s cause of action defense thereto; consequence and as a to the defeat of plaintiffs’ cause of purported cover, action among issues, other plaintiffs’ pleaded proved allegations of defend- negligence ant’s under the humanitarian rule.
Respondents’ says brief the clause in the reading— instruction “. . . and that the defendant was at the time in the exercise of highest degree of care part his . . .”—met plaintiffs’ humanitarian Respondents case. authority cite no holding such an abstract clause in a factual directing instruction functions verdict embracing the all manner respondents ascribe to in the instant *5 by case. In the cases cited respondents, questioned the instructions specific submitted defensive factual issues to a humanitarian case [see, instance, for Jones, Stanton v. 332 631, 638(2), 59 S. W. (2d) 648, 651(3) ]; questioned or containing instructions clauses in effect, of finding in the the necessarily negativing, terms general contributory negligence plaintiff’s to defense of factual affirmative (Mo. instance, Kaiser v. Jaccard [see, for negligence case primary in read (2d) 18, 20(1)] were held sufficient when W. App.), 52 S. predicating a verdict for defendant an instruction connection with instance, [see, factual for finding of said defensive issue upon a Rys. 142, 157, S. W. Heigold 777]. United general an factual negation terms of affirmative issue essential The in an hypothesizing defendant instruction the con- to a verdict for recovery an in- plaintiff’s essential to differs from stitutive facts a factual or purporting struction to submit issue issues essential is under- plaintiff’s to the of action. It defeat of cause writer’s directing standing factual should that instructions verdict on issues upon predi- pleaded proved submit the affirmative facts which the authorizing; plaintiff, cated verdict is to be determined —if for facts defendant, defeating a recovery possibly if for facts preclude to — roving entrusting the with a the in- keep commission pleadings in- proof.' structions within Defendant’s upon plaintiffs’ negligence. struction did this of But, conjunctive. quoted the instruction reads in the The clause merely proposition does not submit an abstract of law. word The expressly “and” clause other postions connects said with the of said tearing This setting. instruction. forbids the clause its The in- from be read, struction should read as a application whole. When so of upon duty statement relied is limited to the abstract stated “driving said instruction of defendant his automobile or upon right highway” only duty to the the center of of the ex- factual —the plicitly respect submitted with to the acts of this defendant. From jury might reason, well requirement contra, absent the issues against were to be plaintiffs determined plaintiffs’ on cause of ac- upon finding tion highest degree defendant exercised the care of in driving upon right his automobile or to the the center highway. Such, course, duty was not the ambit defendant’s under case-; defendant, humanitarian If in- because: for stance, could have slowed down and avoided the collision under doctrine, humanitarian duty do; was defendant’s so to for de- insist, fendant could not implicitly doctrine, under said blindly “rule of road” way pursue so long.as his he re- right mained to his highway. center of said We have held predicating instructions a de verdict oh issue, fensive factual recovery same as predicating instructions on an issue, affirmative factual reversibly erroneous for the omis sion of some constitutive factual element essential to the contem plated favorable determination of the factual ultimate issue instruct ed upon. among See, others, for submitting instructions a defense rule, Smercina, humanitarian Schulz v.
72 861, Fehse, Mo. v. 331 (2d) 113, 120(8); Martin
501(V), 1 W. S. “and instruction closed: (2d) 440, 442(3), (the 867(3), 55 W. S. your any then negligence, free from defendant . . . was that Quincy, & defendant”) Thompson v. ; for the verdict must be O. (stating: 401, 406(18), (Mo.), (2d) 18 S. W. K. C. Railroad Co. correctly law, does the abstract not “While the states instruction sufficiently facts”). cover negligence passing, note the to In we reference antecedent plaintiffs’ plaintiffs’ that of servant the instruction —“and being hand side of negligently truck was then driven left traveling. highway, considering center of direction it was contributory respect injection . .” .. With to the issue solely negligence, a though defense, even as case not in a submitted 486, Smercina, 501, rule, under the Schulz Mo. humanitarian v. 318 113, they (2d) 120, 1 S. W. . . concludes: “. [defendant’s inject contributory negligence, issue and do instructions] require injects to jury Any the issue. which determine instruction totally only foreign erroneous, into a case is not but dan- Contributory wholly gerous negligence and harmful. an issue for- is eign ato case purely submitted under the humanitarian rule. Its perceive reversible The to was error.” writer is unable injection any justifying a distinction between the situation exist- difference ing affording respondents Schulz v. and instant case Smercina any solace. In that jury’s case the sole issue for determination negligence was humanitarian, under the In defendant’s doctrine. directing the instant case sole instruction a verdict for defend- ant issues, embracing covered all in its defensive features defend- negligence ant’s doctrine, injected the humanitarian and into plaintiffs’ a consideration of case the humanitarian factual issue of primary negligence antecedent of plaintiffs’ Doherty servant. v. 996, 742, Louis Butter 1006, St. 339 Mo. 98 (2d) 746, S. W. subsequent was to respondent’s opinion, recognizes the but law dis- cused in v. Smercina, supra, Schulz speaking right to the of a to plaintiffs’ defendant defense to submit humanitarian case in appropriate instructions, states: instructions, however, must “Such specific be leave for the contributory room not consider negligence as defense.” Viewed in foregoing respects, questioned defendant’s instruc- confusing, tion is well calculated to the jury, mislead and under our rulings, It presents erroneous. involving misdirection, issues not merely nondirection. (Jo Wé plaintiffs’ (see not read 230 answer l. 1213, c. S. W. 356) l. c. pleading as defendant’s negligence under the humanitarian rule (con defensive feature Wells, sult Wilson 929, 942, (2d) 541, 13 S. W. 546(5) ; Morris, 245, Banks v. 485). The in- ’ pivots stant issue on plaintiffs pleaded proved humanitarian ease action and thereto; defendant’s cause of defense not and defendant’s defense thereto. say physician defendant’s examination of embrac Relators “are inquiries as to not defendant’s wife’s conditions ing whether or ’’ likely malignant and was within the or to become cancerous not not allegations damage counterclaim; in defendant’s scope *7 respondents’ ruling: foregoing “We think the complain part of defendant’s answer and counterclaim with' ref erence to his wife’s clearly beyond that the the condition shows examination was not 1211, pleadings” (230 354). l. c. Re- Mo. S. l. c. spondents’ damages brief states one of defendant’s items of was etc., past future, loss services, wife; quotes of the and of his and following from defendant’s counterclaim: “That the wife of the violently shocked, thrown, cut, bruised, wounded, defendant was contused, strained, injured jus- and in otherwise such collision” as tifying the examination.
The witness stated defendant’s wife had fibrous tumor on right hip; that a foreign body, fibrous tumor as a acts could become cancerous, very cancer; “I favorable site for and don’t that know could;” my will but it “. . that opinion . is it.” This about testimony permitted was to in remain the record over sev- objections eral that it was not within the pleadings, purely was spec- ulative and not definite appears statement facts. It thus the trial testimony court considered the probative to be of some value on the and, factual issue involved from objections the nature of the inter- posed rulings and the thereon, of the court must so have understood. think
We well within the situation presented in Cham- Kennedy (Mo.), bers v. 726, 730(3), 274 S. plaintiff’s W. wherein evidence to the that epilepsy system effect is a disease of nervous might and that or might “it injuries not result” from the plaintiff sustained was held to have been improperly pe- admitted charging plaintiff tition suffered a severe of.his concussion skull and brain, system his entire muscular injured, was his entire nervous system, including nerve centers', injured, was his mind mental processes injured, permanency were and the injuries. The al- said legations (quoted above) rely respondents brief, which their in like allegations case, appear involved the Chambers lim- be injuries ited to received in attempt the collision and no make to em- developments brace after the malignant of a or cancerous nature. In Hall v. Co., 351, 372, 927, Manufacturers C. & C. 260 168 S. W. 932, this en quoted. court banc applied following 5 from “ Ency. Pl. Prac., p. & ‘Special damages, 719: which are the natural necessary but not injury result of complained of, specifi- must be ” cally alleged.’ Johnson, Consult Grott v. 2 (Mo.), S. & S. S. Co. (2d) 785, S. 788(2), W. (stating: “The did not show that evidence necessary in- result of her was the menstrual disturbance
plaintiff’s & M. .”); Knaup v. Western C. . . also juries cited, the ex- 969, 975(12). the authorities Under 114 S. W. (2d) ground plead- it was within the justified not to be on amination is ings.
Accordingly, respondents’ opinion conflict here- portion that pursuant quashed. thereto should be is and the record made with CC., Cooley Westhues, concur. foregoing Bohling, C., opinion by adopted is
PER CURIAM: —The All opinion judges concur. court. Latham, Appellant. W. (2d) 1089. The State Anton Two, February Division 1939. *8 appellant. A. Seibel for
William