Benscoter v. Williams

600 S.W.2d 217, 1980 Mo. App. LEXIS 2530
CourtMissouri Court of Appeals
DecidedJune 3, 1980
DocketNo. 40796
StatusPublished
Cited by6 cases

This text of 600 S.W.2d 217 (Benscoter v. Williams) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benscoter v. Williams, 600 S.W.2d 217, 1980 Mo. App. LEXIS 2530 (Mo. Ct. App. 1980).

Opinion

SNYDER, Judge.

Plaintiffs Frank and Larry Benscoter, brought this action jointly, by their mother and next friend, against defendant Della Williams for damages for personal injuries sustained by them in an automobile-pedestrian accident on June 7, 1974. A jury returned verdicts for the defendant on both claims. The trial court granted plaintiffs’ motion for a new trial on the ground it was error to give two converse instructions to the jury, one for each of the two plaintiffs’ verdict directing instructions. The appeal followed. This court reverses, disagreeing with the trial court’s finding of instruction error.

Frank and Larry were eleven and nine years of age, respectively, when they were injured by defendant’s automobile. The accident occurred on Highway W, a two-lane road between Doe Run and Farmington in St. Francois County. At the time of the accident the boys were standing near the highway; they had moved a foot or two toward the highway after coming out of a ditch which was one-and-one-half feet deep and between five and nine feet from the highway. Both boys and their grandmother, who was observing them from a nearby house, testified that they were hit by the front right corner of defendant’s car as she was passing an automobile carrier truck travelling in the opposite direction. Defendant, however, said the boys ran into the side of the car as she passed them.

At the time of the accident, Frank was fifty inches tall and Larry thirty-eight inches. There was disagreement between the parties as to the height of the grass and the weeds near the highway. Plaintiffs’ evidence was that the grass had been freshly cut, and that the weeds, one to three feet high, began about two feet from the highway. Defendant said the weeds grew up to the roadway edge and were about waist high.

As a result of the accident, both boys were thrown into the ditch and sustained substantial injuries to their arms. They sued defendant for damages for their injuries, and Frank claimed future damages for a permanent injury to his arm.

Defendant’s contention that the court erred in granting a new trial because plaintiffs failed to make a submissible case need not be considered because the verdict for defendant is reinstated for the reasons which follow.

Defendant claims the trial court erred in granting a new trial on the ground that giving two converse instructions1 to the jury was error. This court agrees.

[219]*219First, appellant correctly argues that this case is similar to the case of Saveway Oil Co. v. Sears, Roebuck & Co., 560 S.W.2d 325 (Mo.App.1977) in which the giving of a converse instruction for each of plaintiffs’ four verdict directors was approved.

In Saveway two different plaintiffs, the Barnhills, who were tenants, and Saveway Oil, the owners of the leased premises, sued defendants Sears and Arvin Industries, Inc. for negligence in failing to warn of dangers in the use of an electric space heater, which was the cause of a fire on the premises. Each plaintiff submitted a separate, but similar verdict director against Sears, and Sears conversed each verdict director. On appeal, the court upheld the giving of the two converse instructions, and recognized a distinction between Saveway, supra, and those cases involving a derivative loss:

“In the foregoing husband-wife and child-parent cases, the party asserting the derivative claim had the burden, as pointed out by MAI 31.04, of proving that his co-plaintiff was injured and, in addition, that he sustained derivative damage. In those cases the additional element of the derivative claim is susceptible to being conversed by an instruction limited to that element. Such is not the situation in the case at bar.
The four claims in litigation here are mutually independent. Each could succeed or fail without any automatic effect upon the fate of any of the other three. It was not incumbent upon Saveway, in making its case against Sears, to prove that the Barnhills were damaged. It was not incumbent upon the Barnhills to prove that Saveway was damaged. . . . [Court’s own emphasis.]”

Saveway, supra, 329.

The court in Save way later elaborated on the separate nature of the claims:

“Each of the four claims could have been the subject of a separate lawsuit. There was no procedural necessity for the join-der of plaintiffs or for the joinder of defendants. The decision to effectuate joinder was a tactical one made solely by the plaintiffs. Neither defendant had any voice in that decision. If the four claims had been asserted in four separate lawsuits, each of the four converse instructions could properly have been leveled against its respective verdict-director.”

Saveway, supra, 331[3], footnote omitted.

Similar facts and procedural options existed here. A disposition as to Frank would not affect Larry’s claim and vice versa. It is possible, although admittedly not probable, that the jury could have found for one of the plaintiffs and not the other under the facts of the case. There was a difference of one foot in the heights of the boys. There was conflicting testimony as to the height of the weeds along the roadside.

Plaintiffs seek to distinguish Saveway on the basis that the damages sustained by the two plaintiffs were of a different nature; Saveway Oil claimed damage to its building and loss of rentals; the Barnhills sustained losses of personal property and business profits. Nowhere in the Saveway opinion is any significance attributed to this fact, but it may be noted that there was a difference in the nature of the damages here also. One plaintiff claimed future damages for permanent injuries and the other did not. The court in Saveway held that the claims were separate, and that separate converses should be allowed. The same reasoning applies to the case at bar.

Further, the MAI Notes on Use for converse instructions justify the submission of [220]*220the two instructions. Both converse instructions were modified versions of MAI 33.13 which defendant was permitted to use. The Notes on Use for MAI 33.13 include the following direction: “Defendant may give only one converse for each verdict directing instruction.” The Notes on Use for both MAI 33.14 and MAI 33.15 state clearly that a defendant may converse each of two separate verdict directing instructions with any of the approved converse instruction forms, which would include MAI 33.13.

However, the Notes on Use for other converse instructions, MAI 33.02, MAI 33.03 and MAI 33.04, contain language which could be interpreted to permit multiple converse instructions only when the multiple verdict directing instructions submit different theories of recovery. The Notes on Use for each converse contain the following paragraphs:

“When multiple verdict directing instructions submit different theories of recovery a converse instruction may be given for each such verdict directing instruction.
When multiple parties submit the same theory of recovery or defense but an additional element of proof is necessary to establish such recovery or defense by one or more of such parties, then an additional converse instruction may be submitted to meet such additional element of proof.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Glasgow v. Cole
168 S.W.3d 511 (Missouri Court of Appeals, 2005)
In Re Care of Coffman
92 S.W.3d 245 (Missouri Court of Appeals, 2002)
Trinity Lutheran Church v. Lipps
68 S.W.3d 552 (Missouri Court of Appeals, 2001)
Fox v. Ferguson
765 S.W.2d 689 (Missouri Court of Appeals, 1989)
Roach v. Consolidated Forwarding Co.
665 S.W.2d 675 (Missouri Court of Appeals, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
600 S.W.2d 217, 1980 Mo. App. LEXIS 2530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benscoter-v-williams-moctapp-1980.