Summary
In Griffith v. Saavedra, 409 S.W.2d 665, 667[2] (Mo. 1966), the court considered an attack upon a converse to a humanitarian instruction.
Summary of this case from Cooper v. General Standard, Inc.Opinion
No. 51936.
December 30, 1966.
APPEAL FROM THE CIRCUIT COURT, FRANKLIN COUNTY, JOSEPH T. TATE, J.
Samuel Richeson, Dearing, Richeson, Weier Roberts, Hillsboro, for appellant.
James A. Cole, Jenny, Cole Davis., Union, for respondent, Saavedra.
Earl Griffith sued two defendants for $50,000 damages alleged to have been sustained as a result of an automobile collision. There was a defendants' verdict. Plaintiff has appealed.
The sole question on appeal is whether the court erred in giving Instruction No. 11 offered on behalf of the defendant Saavedra. No. 11 was given as a converse to Instruction No. 6, offered on behalf of plaintiff. Both are reproduced for purposes of comparison:
Instruction No. 6 Instruction No. 11 ___________________________ _____________________________
"Your verdict must be for "Your finding must be for plaintiff and against the defendant Saavedra on Plaintiff's defendant Saavedra if you claim for damages under Instruction believe: No. 6 unless you believe:
"First, plaintiff was in a "First, defendant Saavedra knew, position of immediate danger or by using the highest degree of of being injured and was care could have known, of plaintiff's injured, and position of immediate danger, and,
"Second, defendant knew or "Second, at the moment when by using the highest degree of defendant Saavedra first knew, or by care could have known of such using the highest degree of care could position of immediate danger, have known, of plaintiff's position of and immediate danger, defendant Saavedra then had enough time by using such care to have avoided injury to plaintiff by slackening the speed and swerving to the left, and
"Third, at the moment when "Third, defendant Saavedra had the defendant first knew or could means available to him to have avoided have known of such position of injury to plaintiff by slackening the immediate danger, defendant speed and swerving to the left, and still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care he could have avoided injury to the plaintiff by slackening his speed and swerving to his left, and
"Fourth, defendant "Fourth, defendant Saavedra by negligently failed to so using the highest degree of care could slacken his speed and swerve have avoided injury to plaintiff by to his left, and slackening the speed and swerving to the left without either endangering himself or others, and
"Fifth, such negligence "Fifth, plaintiff sustained damage directly combined with the as a direct result of defendant acts of defendant Schinderle Saavedra's conduct. MAI 29.06 (6) to cause injury to plaintiff. Modified (Defendant Saavedra)." MAI NO. 17.14 (Plaintiff)"
Plaintiff contends that the finding required in paragraph fifth of Instruction No. 11 misled the jury into believing that before plaintiff could recover the jury must have believed that Saavedra's conduct was the sole and only cause of plaintiff's injuries; that lay minds would almost inevitably understand that by the phrase "a direct result" the court meant that Saavedra's conduct must have been the sole proximate cause of plaintiff's injuries, and that the language used in paragraph fifth is not applicable in submitting a case against two defendants on a theory of combined and concurring negligence. Citing cases holding that the negligence of one of two codefendants need not be the sole proximate cause of plaintiff's injuries to make the one liable therefor; that the one may be liable if guilty of negligence contributing or concurring with that of another to produce the injury, and that to say that an injury is the direct result of certain negligent acts is to say that the acts were the proximate cause of the injury, plaintiff contends that Instruction No. 11 incorrectly states the law and was prejudicially erroneous.
We find no fault with Instruction No. 11. Its author followed MAI No. 29.06 (6), as modified to meet the requirements of the text of MAI at page 247 and to comply with the example (Instruction No. 7) on page 277. As thus modified Instruction No. 11 is sufficient under the circumstances of this case. Under Civil Rule 70.01, V.A.M.R. he was required to conform to MAI. If he had deviated from MAI to the prejudice of plaintiff, he would have violated the rule and committed error. The forms of instructions contained in MAI must be utilized when applicable and unnecessary deviations will not be permitted. Motsinger v. Queen City Casket Co., Mo.Sup., 408 S.W.2d 857 (decided December 12, 1966).
Instruction No. 11 is not misleading. It refers to and must be read in connection with Instruction No. 6. Read together they state the law and do not violate the holdings of the cases cited by plaintiff. Reading them together the jury was told that plaintiff could recover if he sustained damage as a direct result of defendant Saavedra's negligence in combination with the acts of the defendant Schinderle; that is, that plaintiff could recover against Saavedra if the latter's negligence was a proximate cause, and was not told that Saavedra's negligence must be the sole proximate cause. In a comparable situation this Court said "The instructions, when read together, were proper and could not have been misunderstood by the jury." Applebee v. Ross, Mo.Sup., 48 S.W.2d 900, 902[4], 82 A.L.R. 288.
Nor does the phraseology "on plaintiff's claim for damages" appearing in the introductory paragraph authorize a verdict on both primary and humanitarian negligence, in violation of the rule in Sauer v. Winkler, Mo.Sup., 263 S.W.2d 370, as contended by plaintiff. Again, this very language is prescribed by MAI, page 277, in the example (Instruction No. 7). The words "under Instruction No. 6" immediately following the words "on plaintiff's claim for damages" are required by MAI at page 249, wherein the bar is advised that "If plaintiff submits on both primary and humanitarian negligence [as plaintiff did in this case], the above converse instructions would be modified by adding the words `under instruction (here insert the number of the instruction being conversed).' These words should be added after the word `damages' or if that bracketed clause is not used the words should be added after the first `defendant.'" The same admonition appears at page 253.
Accordingly, the judgment is affirmed.
WELBORN and HIGGINS, CC., concur.
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.