*1 how foolish tion. What has occurred shows of a conviction on the
it is to risk reversal to defend-
basis of kind of a reference the stand. being obligated
ant not to take
However, that, having said I still would not my
reverse this conviction. view the misleading
statements were not harmful or justify
and do not reversal of this convic-
tion. A.
James Edward WELCH and Charlotte
Welch, Plaintiffs-Appellants, HYATT,
Myron Edward
Defendant-Respondent.
No. 60727. Missouri,
Supreme Court of
En Banc.
March
Appellants’ Rehearing Motion for April
Denied
906 Butler, George T. Raleigh Gough,
W. Sweitzer, Harrisonville, Jr., Edward J. Mur- Butler, plaintiffs-appellants. phy, Reeser, Spangler, Robert B. Robert W. Crouch, Jr., Crouch, Douglas, & Spangler Harrisonville, defendant-respondent. SIMEONE, Judge. plaintiffs-appel- by the appeal This is an a Welch from lants and Charlotte James 3, 1975, upon a judgment April on entered of Cass by the court jury verdict circuit defendant-respon- County in favor plain- dent, Myron Edward inju- personal damages for tiffs’ claim for arising out of an ries and loss of services Appeals, Court of automobile collision. The judgment. Western District affirmed grant- by filed we Upon motion1 now transfer to this court and decide ed provi- original appeal, case as under the an V, 10, adopt We sions of Art. Mo.Const. § appeals opinion portions of the court marks. quotation without an col- This from automobile arises cause “pickup” lision between 1949 Chevrolet James Welch and by plaintiff truck driven Myron Hyatt. a 1969 Chevrolet driven 1, began The collision April Trial prior appeals with decisions: conflict cause be 1. The motion contended Development appeals Supply (1) and Bledsoe v. Northside transferred because the court of Hig Co., 727, opinion (Mo.1968); v. required find than 429 rather S.W.2d 730 hfill (failing Brown, 493, (Mo. 1959) No. fact in 496 assume a controverted Instruction 320 S.W.2d 4, finding (2) plain concluding and Rules 70.01 in so violated facts to submit the base Yourtee, left); MAI 70.02 and the Committee’s Comment turn Melber v. tiff intended to ground May 727, Day (Mo.1947); consists 1.02 that where a v. 203 730 S.W.2d they 34, (Mo.App.1967); berry, elements must be submitted several 40-41 421 conjunctively, Hawkeye that a Security MAI 17.06 assumes Thomas Grain v. Ins. Co. being 1966); (Mo.App. “turn” was made so Fum. 407 S.W.2d hypothesize fact of a Cushing, should be modified to Hengelsberg by separate clause which Instruction (Mo.App.1932). opinion not do and the court does road, my boy side of the little occurred on Highway October 1971 on reached County M—2 in .6 of a mile east of standing up my Cass brother-in-law know, eight Route J and six to miles west of him back him, took get you Harrisonville, Mo. The lap driving collision occurred around set him on when the just eastbound Welch got along and all of a sudden was struck from the rear rammed.” *3 Chevrolet. At the scene of the collision occurred near He admitted that the collision M—2 Highway general easterly runs “in a driveway the farm and that he knew that westerly “basically direction” or east junk “Jack” lived there and had some vehi- highway and west” and at the scene the cles, he had trailer been to the house fairly level straight but there is a curve going before but denied was to the that he approximately in the road 600 feet west of Hence, trailer he indi- house to see him. highway of collision. The is 21 “Well, no intention to cated he had turn — feet wide with 12 foot shoulders. At the go to that house you going where to trailer scene of driveway” the collision a “farm parts to see about some that man [Jack] proceeds highway north from the to a trail- your pickup at the time of the accident? er highway house on the north side of the No, I testified wasn’t.” Welch junk pickup where some trucks rested. The struck his truck was that at the time he was trailer house occupied by was “Jack” who foot from the center line “probably about a was known to Mr. Welch. The collision highway. or so” on the south side of the driveway. occurred near the accident, Welch, After the while not uncon- The question essential is whether at the scious, anything could not remember until collision, time of proc- Welch was in the he was in the doctor’s office some time ess of a driveway left-hand turn onto the injuries He received later.2 are and, so, whether his failure to subject dispute proceeding. in this movement was contributorily negligent. defendant-Hyatt’s The version of the col- While the contradictory, evidence is lision that of Mr. was in marked contrast to
jury could reasonably following. find the driving Welch. was the Chevrolet sitting pas- 30,1971, and his wife Marie was in the
On October Mr. Welch was driv- ing senger reading It was his an old seat a book. pickup one-half ton truck which attempting go he had that he was to borrowed from his brother two or proceeded three farm look for a bull.” He body weeks before. wasn’t the “[T]he “[t]o farm, highway past best in the world.” west on The truck had “two went glasses.” directions, cracked “They pro- door were asked turned around and busted up driving pretty bad.” There were no ceeded east. He was about 55-60 electric curve, signals on p. the truck and one brake m. h. After he made the light (the right) operated. pickup On that date became truck ahead. conscious of noon, shortly before Welch decided to drive He continued to observe truck. Salvage to Bob’s Yard near Harrisonville to traveling p. truck was at about 45 m. h. and “try replace glasses.” two high- door as the “truck was headed down the [the] the truck with two-year him were his old east, way light had a that come on son and his fifteen-year old brother-in-law. off, off, come on and went and I went Welch driving Mr. testified that he was on thought apparently probably that he was the side straight of the road in a line and going pick up pull or pull off to his mail “never right” turned to the left or to the right pulled passing to the so I to the nor did he speed. increase or decrease his highway.” right lane of the [north] “Well, I driving light down the —east “[p]ossibly rear went on and off three truck,
toward on my Harrisonville Number Hyatt got times.” As closer to the hospitalized year damages sought 2 Mr. Welch was earlier turned over. No as a August, dizziness and in was involved result of this second accident. driving another accident while truck which angle at what pickup asked When beginning he noticed that “it was to come impact, Hyatt at the moment of stated part right from the of the —side of the sitting with the “It would have been front highway the center line with the toward highway, portion of it to the left going to front wheels like it was centerline, part with the rear Hyatt began to the brakes. apply left.” highway right.” to the width of Due going in motion Welch “continued to be pickup, Welch counsel and the width of the put highway.” Hyatt the left of on the “per- moved sought to show began brakes car to slide. haps two indicated that feet” which “going to cross “could see” that Welch was He indicated the turn left. passing the center line in the lane of lane opposite” “just about impact occurred I thought in. And I had how [sic] driveway. altogether, pulled will I miss the truck cross-examination, Hyatt, plain- On my car to the lane.” The [eastbound] *4 asked: tiff’s counsel thought “I kept getting cars closer “Q. All described right. you have Now get was to around any way possible if you to are the here that why I wanted to do to behind that is what road, coming you see this down the But the cars collided— completely.” miss right side pickup on its own hand Hyatt’s bumper fender and “contacted” begins and it to the left but to move bumper the the At the time of pickup. of at no time did it the center cross impact, Hyatt the that the front of testified you prior line to the Are impact. pickup the was the center line.” “[a]cross saying during period that that of impact At the truck was the time the then pickup time that the moved Hyatt traveling per hour and 7-10 miles perhaps two feet which indicated to per Although had slowed ten hour. miles you that he turn to the was feet, he left 75 or 80 he did skidmarks of left? impact. impact was avoid the The re- A. Yes.” glancing Hyatt’s auto ferred as a blow. however, indicate, He the left front did that came to east rest “mailbox” headed driveway. pickup up to the the rest in east and the Welch truck came to redirect, Hyatt testified that at the On “driveway” opposite the headed in the di- pickup the turn time he the wheels of saw (west). Hyatt rection Mrs. went to the left, He passing lane. to the he was in the police. the trailer house called the time of the that further testified occurrence, pickup was headed truck the cross-examination, plaintiffs’ counsel On driveway.” “toward the Welch did not intend to sought show that left, patrolman, came to the Hyatt highway and that never sounded A who collision, following testified. He scene the pass. horn at time before he started to any road, shoulders, topog- the the described the When asked on cross-examination “Now highway and the farm drive- raphy of the time, up isn’t it true that at location of the way. He testified as togeth- came moment that two vehicles they came to rest after the vehicles after er, part pickup isn’t it true that no parked collision. vehicle The line of the the center ever crossed east and the facing the south shoulder exception of the highway possible with facing to the west. pickup was back Welch Hyatt answered “I bumper, bumper,” front beginning north There were two skidmarks agree.” Hyatt was unsure as to how don’t traffic the west bound the centerline in the center line much of the truck crossed 87 feet. The skid- approximately lane of control trying to . “because was into the back to the south marks curved with my car." was also confronted close to the lane and ended east bound deposition in which he stated earlier “[j]ust directly edge pavement south collision, pickup, did officer found prior driveway.” The south highway centerline of debris near the line. not cross the center collision with the rear of to come into bile “at the same where what would have skidding been the left wheel came across Edward Welch’s plaintiff James just a few one or centerline.” debris conduct truck and defendant’s edge driveway. feet to the west respects more of such as well Debris was found the eastbound of such direct result as the westbound lane. He checked the damage. sustained vehicle, signaling no turn de- found plain- argument of During closing light vices but found it had one brake plain- counsel, tiff’s referred counsel working. on the rear —the left was not tiff’s verdict director. mo- After the evidence was closed and “Then, re- ‘as a direct says, the Court tions for directed verdicts on behalf of both is of negligence,’ sult of that overruled, were the court instructed parties running rear end of into the defendant jury. The verdict for the directors sustained plaintiff, ‘that premised on the rear-end believe damages you . ‘unless —’ theory recovery collision which authorized recovery plaintiff’ is not entitled to unless the found that Welch was con- Instruction No. 4.’ reason of tributorily negligent. gave The court In- get into really where we “Now this is struction 4No. which is one of the conten- swearing in this case. match tions of error here. Instruction No. 4 in- intention of mak- says, ‘I had no jury: formed the driving I was ing any left-hand turn. “Your verdict must be for the Defend- *5 I was a sudden down the road and all of you ant whether or not believe Defendant The defendant struck in rear end.’ the was negligent you if believe: highway, says, coming ‘I down the was First, Plaintiff James Edward Welch a curve we come around [sic] turn; failed to his intention to and pickup and at that old . time the Second, thereby negli- Plaintiff was driveway’, is about 150 feet from and the gent; and it says, at that time the defendant ‘Well Third, negligence such Plaintiff di- plaintiff’s pickup looked to me like the rectly caused or directly contributed . . Was pulling was to the left.’ . any damage plaintiff may cause have sus- left- plaintiff intending the to make a tained.” so, was hand turn and if what evidence gave The court also a converse instruction: defendant observed at that there that the “Your verdict must be for defendant on you I submit to time to indicate that? plaintiff James claim Edward Welch’s . .” . . there wasn’t evidence damages you unless defend- believe that deposition in Hyatt’s Counsel referred ant In- was as submitted in no time was the that at which he stated struction that Number [sic 2]3— the time of center line at pickup across the plaintiff James Edward Welch sustained impact. damage as a direct result thereof.” closing argument In defendant’s counsel give court refused to offered trial Hyatt observed informed the that Instructions No. 13 and 14 which informed This truck start- “wheels turn the left.4 must be for the jury that its verdict brakes applied ed to left and he plaintiff either failed to if the defendant coming plain- starting pass sound . . . . observed the his horn before [H]e physical to the permitted tiff’s truck or his automo- over.” He also referred truck, upon gaining beginning I that it 4 was the contribu- noticed 3. Instruction No. of course was tory negligence part of the —side instruction—this is an obvious to come to the error; highway 2 di- Instruction No. was the verdict with the toward the centerline rector on James Welch’s claim. to turn to front wheels like was left.” got testified that “As closer truck, kept we and it continued to move on as was made about No mention errone- near the center line facts—debris where what roadway; the same to In- No. 5 ous Instruction reference in skidding left wheel would have been the No. 2. of Instruction struction No. 4 instead line; center that the debris came across the urge reversal and appeal, plaintiffs On just edge was a few feet to west (1) giving court erred contend the trial driveway; place the vehicles came to such instruction Instruction No. rest, lying a in the spare tire still bed plaintiff that erroneously hypothesized truck; coming glancing a blow back to the signal his intention to turn” when “failed to right trying him. Defendant also to miss plaintiff no evidence to show there was during argu- referred Instruction No. or he was in the act ment: intended to “turn” turning; (2) giving Instruction No. 4 “But there is another instruction in of this says you here that find that man erroneously because the as- you making was a left turn and believe fact sumed a controverted that, regardless you then of what think turn; making left a to and was intended Mr. doing, still can’t recov- Instructions No. refusing give er, If you can’t recover. a horn before to sound because failure making find a left turn with- that he ground pass pleaded starting to warning . .” giving timely out supported the evidence added) (Emphasis giving Instruction No. 5 because After the instructions 4, the contrib- it referred to Instruction No. made, and re- arguments retired utory negligence instruction the defendant. The turned a verdict for “plain such instruction was error.” on the verdict. judgment was entered argue point, plaintiffs As to the first course, plaintiffs filed their motion due theory that Welch it was defendant’s plaintiffs contend- new trial. In the motion contributory negligence be- guilty refusing give the ed the court erred in alleged and 14. in his offered Instructions Nos. 18 With cause—as answer— 4 the motion reference to Instruction No. without first commenced turn to *6 stated: adequate signal. They giving timely a giving in
“5. That Court erred plaintiff “positively testified argue that reading to the Instruction No. sub- jury to turn into this that he did not intend objec- Hyatt, mitted Defendant over crossed vehicle never driveway”5 Plaintiffs, tion instruction erro- of that there They the center line. contend permitted jury neously directed and that Welch was no evidence sufficient if return a verdict Defendant he left or that was intending in fact to turn jury James Edward found that Plaintiff “accomplishing a of turning the sense —in signal his intention to Welch failed “Plaintiff change of direction.” permanent erroneously as- turn which instruction direct- and there is so testified evidence, to wit: that sumed facts not in 6 Plaintiffs testimony.” ly contradicting his turn or Plaintiff . . . intended to the defend- testimony of emphasize certain at of his vehicle making a turn moving it was got he closer ant —as ; . that said time of the collision line,” center right to left “toward from in that was further erroneous left.” He “going to turn to the like it was failure, a was no evidence that there to the left of going “in motion continued signal his any, of ... Plaintiff “it was see that highway” and he could a or con- proximate intention to turn was Appellants line.” going to cross the center mentioned tributing the collision cause of testimony that “[sjtill is no say that evidence.” Fitch, Appellants rely he on Thomas exact “wasn’t” His words were go (Mo.App.1968). see “that man S.W.2d 703 to that trailer house to parts truck about some for the [Jack]” time accident.
9H any part permit- fendant’s failure to sound the truck crossed the center a horn or 7 Appellants argue line.” that in any event ted his automobile to come into collision angle very slight of the turn was plaintiff’s giv- which with truck should have been constituted “more of a veer” petition alleged and that such en the failure slight (he feet) turn contends two ground not a to sound a horn as an additional “turn” meaning within the A negligence. 304.019. If defendant had sounded his § permanent “turn” is a change pass of direction horn first started to when he for the purpose proceeding entirely plaintiff an have found that reasonably could 304.019, different direction. Section it is kept would then have his attention on the contended, does prohibit every slight not could have seen defendant’s automobile—he straight deviation from a long course so as him in mirror and he would have the rear right vehicle does its right not leave hand kept his as close to the side side highway.8 Appellants shoul- possibly conclude the over onto the road and by contending that plaintiff der, could not have defendant’s automobile when he saw been contributorily negligent failing right. to move to the signal an intended left the sense of lastly, argues And that Instruction No. most, a turn across the left lane. At inadvertently 5 was erroneous because it signal in his failure to an (the referred to Instruction contribu- intention to move upon or left a road- tory negligence instruction) rather than In- way, the separate fourth and occasion for a (the director). struction No. verdict This signal under 304.019 which was not in § was an although obvious error and not men- issue here. tioned in the motion for new trial
As to the point, plaintiffs argue second urge that we treat the erroneous reference Instruction No. the contributory “plain 84.13(c). error” under Rule negligence instruction, is erroneous because hand, On respondent the other contends in stating “failed signal giving the court did not err in intention to turn” it assumes that supported Instruction No. 4 because was had an “intention” to turn and was in the evidence; (2) the court did substantial act turning controverted fact in the —a err in the instruction on the Appellants trial. argue that a would ground that it assumed intended to conclude that the instruction assumed as an (a) make a left turn because the matter was undisputed fact that Welch intended to preserved in the motion for new trial10 turn and that the only question was wheth- appel- in that the motion did not state that er or not he give failed to of his complaint lants had “some related to the intention to turn.9 fact,” assumption (b) of a controverted
As to
*7
point,
the third
appellants argue
“since the
did not find for defendant
that the refused
finding plaintiff
Instructions No. 13 and 14 without
intended to or was
referring to
turn,”
alternative submissions of
making
de-
a left
the court did
testify
Yourtee,
7.
did
Cushing, supra;
supra;
however that at the time of
Melber v.
and
impact
pickup
the
the front of
Supply Development
the
Bledsoe v. Northside
&
the center
supra.
“[a]cross
line.” He also stated “I
could see that it was
to cross the center
passing
line and be in the lane of
line that I was
Respondent argues
merely
10.
that the motion
disagreed
in.” He
when asked “isn’t it true
improper
stated that Instruction No. 4
be
part
that no
of that
truck ever crossed
“erroneously
cause the instruction
assumed
highway
the center line of the
.
.
.
evidence,”
.; respondent
facts not in
.
.
point
fails to
out in his brief however that the
Appellants
Railroads,
rely
8.
on Noce v. United
allegations
by stating
in the motion continued
Cal.App.
(1921);
err Instructions No. 13 direct in suggests fairly there was no substantial by proof because be shown to sound a horn proximate- evidence that a failure contributory negligence that the proximately caused the colli- directly and injury. ly produced the sion, misnumbering in Instruc- the supra, a rear end Fitch, In Thomas v. error. plain tion 5 his vehicle asserted plaintiff collision where As the raised the first the right lane at time the completely in whether is appellants analyzing in judgment affirmed impact, of the court of a support evidence to the submission he denied ever Plaintiff defendant. submission, we con contributory he line and denied had crossed the center light most favor sider the evidence in the to turn left at an or intended undertaken give him the able to the defendant and testified that as intersection. Defendant of favorable inferences reason benefit all rear of approached car the the front of his to be from all the evidence. ably drawn of into the left plaintiff’s pulled vehicle disregarded to be un Plaintiff’s evidence is straddling the center line. lane more or less con support grounds less it of tends impact occurred Defendant estimated tributory in negligence submitted the center line two or three feet Fitch, at 435 S.W.2d struction. Thomas v. gave an instruc- highway. The court 709; Skelly Company, v. Oil Jackson plaintiff’s part which in related to the tion 239, 242(Mo. 1967); Highfill banc to turn. failing to his intention Brown, 340 at 661. there was sub- objected Plaintiff there was substan We hold that intended to stantial evidence that support tial evidence to turn. The stated: court 4. negligence Instruction No. contributory “ seldom ‘Intention’ is state mind argue While the that the Welch ordinarily is capable proof of direct veer and not a sub only movement was logical through deduc- determinable change of direction which a stantial question proven facts. tion from evidence implies, there was substantial usually by the trier of intention is decided jury could find that from which the facts, may testify party and while a turn was the act plaintiff intended to or time, if his at a to his intention However, turning driveway. into the the evi- testimony at variance with description given by the defend halting 435 S.W.2d it is of little value.” dence events, there was substantial ant was in the act evidence that Thomas, the evidence showed turning and crossed the center line before vehicle speed as the plaintiff decreased impact.11 His considered intersection, the vehicle moved neared position context of the of the Welch left lane as into the partially left and physical other impact, truck after center line. completely straddle contributo supports facts above related per- it was the facts court held that under ry of the contributo negligence submission jury to infer and deduce ry to missible for the negligence instruction. The evidence did, fact, need not be from the evidence support such a submission physical facts, matters, line. The Among crossed center testified other *8 above, support of the submission got outlined also as he closer to the truck after the negligence beginning go contributory light instruction —debris . rear flickered it was line; come like it to center skidmarks line with the front wheels close center lane, damage left, (2) going in mo- continued back into the eastbound to turn blow; position highway, glancing going to the left of the indicates a tion collision; plaintiff center to cross the could see Welch was of the vehicles after the windows; line, (4) impact looking replacement of debris de- of the front time line, (5) driveway posited the truck slowed near was across the center 18-20 feet west of h., agree (6) Hyatt p. line; plaintiff did not when to 7-10 m. “Jack.” knew the center part of the truck isn’t it true that asked
913 Co., son v. Francisco Ry. undertake and intend to St. Louis-San 301 turn left and that proper it was for the trial court to (banc 1923); submit 79, 169, Mo. 256 S.W. 170[3] contributory negligence. the instruction on Evidence, deposi- 37. The § McCormick turned left with- testimony tion that Welch persuasive only Thomas is here. Not is signal center line of the out across the testimony portion here that a line, Welch’s vehicle crossed but were for the highway; the center these contradictions the physical permit facts to infer of the testimony The trial assess. and deduce from the evidence that that Welch made that maneuver defendant intended to turn. support evidence to the con- substantial tributory negligence instruction. reply Plaintiffs in their brief con tend testimony nevertheless that the trial Appellants’ principal contention is that of the defendant was contradicted his Instruction 4 based on MAI 17.06 is No. deposition testimony part that no assumes controvert- erroneous Welch truck had crossed the center line ed fact in the cause—the intended probative before the collision and to and did turn left.12 Plaintiffs contend effect of his court was nullified. that the first paragraph of Instruction claim the effect of the rule his 4—that Welch “failed intention [Adelsberger Sheehy, 954, v. 332 Mo. fact that turn” assumes the controverted 644, 647[6, (1933)] S.W.2d that contra 7][8] Welch intended to and did turn and thus dictory testimony by a witness on an is principles of violates the basic instructions. explanation sue—without other not —does reality Plaintiffs in that MAI 17.06 contend prima make a facie submission on that is is not a it as- viable instruction because however, principle, sue. That ap does not sumes a controverted fact and violates the pertain distinguished here and must be ground that where a comments of MAI 1.02 principle from the prior that the statement consists of several elements witness, of a even when the is witness they conjunctive. still stated in must be party, although impeachment, admissible as does destroy prima not facie effect of It is true that: proof at the subsequent trial. Bonastia Louis, v. Terminal Railroad Ass’n of St. “The purpose clear of the new method 122, (Mo.1966). 125-126 That is be juries, adopted by Supreme of instructing cause testimony given subject at the trial is 70.02, V.A.M.R., Rules 70.01 and Court to cross-examination trustworthy and so is 1965, 1, January effective was to submit prove issue, an prior while the statement issues, evidentiary ultimate details. is hearsay as to that issue and so valuable Plaintiff, drafting the in only impeachment. McCormick on Evi struction, subject to requirement dence, 34, seq.; 214(2). et § C.J.S. Trial § the ulti the instruction submit When prior inconsistent statement issues, general mate factual be within the comes from a witness party who is also a scope pleadings, not assume issua the proceeding, may the statement be used facts, ble be understandable in two aspects: as an admission of the reasonably intelligent jury.” Zipp v. Ga adversary and so as substantive evidence Stores, Inc., Drug sen’s 449 S.W.2d upon issues, the fact or for the limited (Mo.1970).13 purpose of impeachment credibility. general principle Swift v. While the has been and Ry. St. Louis-San Francisco (Mo.App.1929); assuming 968-969 David- is that an instruction controvert- 13. See also Price v. Respondent Seidler, pre- contends this issue is not 408 S.W.2d reading allegation (Mo.1966) assumption served. But a fair 5 of the 823-824 issuable — MAI; they improper motion for new trial convinces us that this facts are still before sufficiently, although clearly improper Penberthy issue was ar- under the new method. ticulated, preserved purposes appeal. 122, 130 (Mo.App.1973). Penberthy, 505 S.W.2d *9 error14, airplane steep climbing in too a ed the facts of each case attitude facts inquired scrutiny must be into. If close of under there exist- the conditions then and ing, decreasing the instruction demonstrates that it is cal- the thus airworthiness jury airplane.” culated to lead the to believe assumed said court held the instruc- The disputed tion facts the instruction suffers from erroneous because each alternative as- infirmity principle. required the Cf. sumed the fact to be which Kewanee found Remmert-Werner, Inc., Company Oil the would have a certain result because 23, 26 (Mo.App.1974). do alternatives more than assume facts. “They required be assume that the facts to support Plaintiffs on cases rely several found certain definite results would have position their that Instruction 4 suffers .” word “thus”.15 because of the from infirmity assuming the the contro- at 728-733. “intending verted fact of to turn” the when “sig- upon by appel- instruction refers to Welch’sfailure to relied the These decisions opinion controlling. nal his intention turn.” lants not our are in They principle the of as- clearly violate In Hawkeye-Security supra, Ins. the sumption facts and either of controverted gave court an which informed instruction pro- gave jury roving the a commission or the the for the defend- jury verdict must be compel ceeded to certain definite results. ant or was whether not defendant jury to as a required accept Bledsoe the it plaintiff’s believed that the insured course, one fact matter of controverted disregarded failed swerve or electric precedent once a fact was found to exist. warning signals signals by or given arm compos- case, was defendant. instruction a In the context of this total ite of several. The “dis- however, submission the we hold that Instruction No. erroneous; regarded signals” in instruc- element the in prejudicially not the tion, held, jury the court abdicated the struction when viewed with all the other declaring its jury. essential function of the law of facts did not cause confusion the by defining the case facts were The issue to be decided the jury’s physi for determination. The submis- whether under the gave sion was erroneous it cal intended to did turn because evidence Welch driveway. left for both roving a an unlimited into Counsel commission and argu parties recognized closing this issue in contributory negligence license find ments in the above. as outlined facts any theory of own Addition- its invention. not issue there was a turn or of whether ally, “disregarded sig- the court stated the referring argument clear made it nals” submission erroneous “swearing jury was not match.” The signals a that hand assumed as fact a of this instruction. No confused as result require finding did a reasonably returned a ver juror could have apparent danger there was of a collision as having dict the defendant without predicate performance a of some made and intended found that evasive action. dispute The principal to make a left turn. Bledsoe, personal injuries In an action for a turn was made. was whether left crash, airplane sustained an the court however, gave believe, fu contributory negligence We requiring a if the verdict the defendant ture when a turn is controverted landing gear fact, disputed require “failed to retract 17.06 should MAI ground, finding thus was a turn and airplane after there reducing an inten decreasing airspeed and was a failure to circumstances airplane airworthiness of said “flew tion to turn. But under the Bledsoe, Mo.Digest, the error was not cured See numerous decisions Trial, 191(1)(6). court <S=>No. of an instruction that the does to in mean referred to assume as true facts these instructions. *10 Instruc- ant, intended was to here, the reference prejudicially the instruction was not plaintiff 2, err in erroneous16 and the court did not tion No. the verdict-director say that plaintiffs it. now Welch. The and the ver- jury misreference misled complain that plaintiffs The next error. The plain dict resulted from that No. 13 and 14 the court refused Instructions prejudice such plaintiffs not shown have defendant based on the of the any. The issue nor does the record disclose for failure to sound his horn before and sim- single, clear before Welch truck. The theo began pass made a left ple plaintiff —whether contra ries of these tendered submissions was an issue defin- turn on It highway. theory dict the trial and evidence evidence by the itively presented at the plaintiffs that their truck was struck which the and one from arguments proceeded straight ahead in rear as by the misre- could not have been distracted may not proper plaintiff lane of travel. A No. 5. ference in Instruction gainsays his recovery theory rest on a this case we find Alford, context of In the total positive own evidence. Tomlin v. Nor, 711[3, (Mo.1961). no reversible error. 351 S.W.2d 4] recovery on the rear-end collision submitted judgment The is affirmed. by plaintiffs, could the failure to sound a proximate horn have been the cause of their SEILER, JJ., BARDGETT Freese, injury. Linneman v. S.W.2d FINCH, Judge, concur. Senior (Mo.1952). There was no error 587[2] MORGAN, J., separate in dis- dissents C. in refusal 13 and of these instructions [Nos. senting opinion filed. 14]. The last contends that In RENDLEN, J., A. ALDEN STOCK- which, struction No. 5 for defendant ARD, and concur Judge, dissent Special 33.03(5), model of MAI undertakes to con dissenting opinion MOR- separate with damages verse causation and was erroneous GAN, C. J.
because it misrefers to another instruction DONNELLY, J., sitting. not meaningless. and so renders the direction timely objection made J., WELLIVER, participating be- plain the submission and so contend for when member of the court cause not a 84.13(c). error under Rule Instruction No. cause was submitted. directs: Justice, MORGAN, dissenting. Chief “Your verdict for the must be defend- respectfully dissent. plaintiff
ant on Edward Welch’s James damages you claim for unless believe that principal opinion, recognized As defendant was as submitted vehicle) testified that (in front plaintiff plaintiff Instruction No. and that turn,” and that he “he had no intention damage James Edward Welch sustained highway. right side of the did not leave the [Emphasis as a direct thereof. result following (in the To the defendant contrary, supplied.]” drive to vehicle) did testified Thus, line. it would actually Instruction No. 4 the contribu- the left of the center turned or not tory negligence appear of the defend- that whether submission MAI does the instruction 17.06 vio- Neither inconsistent with the The instruction principle are several upon plaintiffs’ late the that where there motion to decisions relied Brown, negligence they be submitted Highfill supra, elements of must failed to transfer: v. example given conjunctive. MAI finding in the submit facts to base a left; supra, doc- Day Mayberry, humanitarian comments is that of the 1.02 intended to turn required 304.019, negligence consists Under § the instruction of the trine. turning the inclusion in and then trespasser when not safe to do so and a neces status of a discovered sary Yourtee, signal. recovery; after a element of Melber v. supra, deals with sole cause. *11 liability was the ultimate issue as to decide. jury and was for the applicable to was not the facts
MAI 17.06 “as-
of this case because said instruction is being
sumes” that a turn was made. It only in those where
appropriate instances signal adequacy ultimate
issue. The instruction should have been hypothesize
modified to the fact of a turn Thereafter, require jury find. time,
and for the first or lack for
thereof would become an issue resolu-
tion. contributory
Admittedly, (No. 4) given
instruction assumed that
turn was guided made and toward signal. presence or of a absence thereby require
instruction failed to resolu Seidler,
tion of the real Price v. 408 issue. 815, (Mo.1966); Hawkeye-Secur
S.W.2d
ity Fumigant Ins. Co. v. Thomas Grain Thomp (Mo.App.1966); Gray, (Mo.App.1967).
son v.
Although gave defendant a different ver- plaintiff by
sion as to what happened, hope was denied would believe his version. judgment be should reversed.
STATE ex rel. STATE COM HIGHWAY Missouri, Respondent,
MISSION of al., Exceptions Allen
Max NICKERSON et Ruby Mae
of I. J. Nickerson Nicker
son, wife, Appellants. 60458. Missouri,
Supreme Court
En Banc. March Smith, Smith, Rogers, Lewis & Robert C. Columbia, Quig- Quigley, Kay & Robert J. Rehearing Respondents for Motion Eldon, ley, appellants. Denied April Cheatham, Ring, A. Bruce E.
Thomas Commission, City, Jefferson Highway State respondent.