Lindsey v. Pettus

604 S.W.2d 747
CourtMissouri Court of Appeals
DecidedAugust 12, 1980
DocketNo. 41706
StatusPublished
Cited by2 cases

This text of 604 S.W.2d 747 (Lindsey v. Pettus) 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
Lindsey v. Pettus, 604 S.W.2d 747 (Mo. Ct. App. 1980).

Opinion

GUNN, Presiding Judge.

The automobiles of plaintiff-respondent and defendant-appellant collided head-on near the center line of a rural road in Lincoln County. Each party blamed the other, with defendant and his wife filing a counterclaim for their damages against plaintiff. The jury trial resulted in the classic dog fall-verdict for defendant on plaintiff’s petition; verdict for plaintiff on defendant’s counterclaim and wife’s claim for loss of consortium. Only defendant and his wife have appealed, raising a host of alleged trial errors. We affirm.

At the outset, we note that there was an abundance of legal representation, each side having the services of two attorneys-one each for the claim for damages and one each to defend the claim of the other.

Defendant’s first point argues that he was compelled to use a peremptory strike to remove a juror who should have been struck for cause. The record does not support this contention. After the attorneys had made their strikes before the jury was finally impaneled, one of the jurors informed the trial court that he was acquainted with the son and daughter-in-law of one of the defense counsel. The prospective juror indicated that he would have no difficulty in rendering an impartial decision despite the fact that the son and daughter-in-law were locked in a bitter marital dispute. Nevertheless, the trial court asked defense counsel: “Do you want to change your strikes?” The defense attorney replied that he did and wanted to reinstate a venireman who had been struck. The request was approved. There was also no response from defense counsel to trial court inquiry if there was anything further re[749]*749garding the jury selection process. There was no request to have any venireman challenged for cause or for any other relief. There was no evidence that the defendant was forced to expend a peremptory challenge; hence, there was no error by the trial court. State v. Goree, 546 S.W.2d 785 (Mo.App.1977). In fact, defendant’s counsel raised no objection at all to the trial court’s handling of the matter. Certainly the trial court was not required to strike the venireman on its own motion. State v. Dodson, 595 S.W.2d 59 (Mo.App.1980); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975).

Appellant’s second point simply states: “Defendant’s Exhibit G was erroneously excluded from evidence”. Without stating wherein and why the trial court erred, this point is patently in violation of Rule 84.04(d) and preserves nothing for review. Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978).

Defendant next complains that the trial court erroneously submitted Instruction Number 6, plaintiff’s contributory negligence instruction, which reads:

Your verdict must be for plaintiff on the counterclaims of both Raymond Pet-tus and Myrtle Louise Pettus if you believe:
First, defendant Raymond Pettus drove on the wrong side of the road, and
Second, defendant, Raymond Pettus was thereby negligent, and
Third, such negligence of defendant Raymond Pettus directly caused or directly contributed to cause any injuries and damages defendants may have sustained.

Defendant asserts that the use of the word “drove” was improper in this case because the evidence was that if the defendant was on the wrong side of the road at all, he skidded there and did not “drive” there. He cites McIntyre v. Whited, 440 S.W.2d 449 (Mo.1969), and Strickland v. Barker, 436 S.W.2d 37 (Mo.1969), as support for his position. Defendant overlooks, however, the fact that this view was expressly overruled by Friederich v. Chamberlain, 458 S.W.2d 360, 366 (Mo. banc 1970), which points out that “drove” may be an apt characterization of a skid situation.

When Friederich was decided, however, MAI 17.13 specified that “Defendant drove on the wrong side of the road” was the proper submission. This was revised in 1973 to read “Defendant was on the wrong side of the road at the time of collision,” but the “at the time of collision” language was found to cause difficulty under some circumstances. See Pittock v. Gardner, 530 S.W.2d 217 (Mo. banc 1975); McCroskey v. Marshall, 519 S.W.2d 717 (Mo.App.1975). Then in 1977, MAI 17.13 was again revised to its present form: “Defendant was on the wrong side of the road.” The Notes on Use following MAI 17.13 (1977 revision) state inter alia:

This instruction is applicable both where the collision occurs on the wrong side of the road and where the collision occurs with the defendant on the correct side of the road but is caused by the defendant having driven on the wrong side of the road. This is the applicable instruction in both skidding and non-skidding cases.

Furthermore, the Committee’s Comment regarding the 1977 revision to MAI 17.13 notes that, “skidding is a circumstance which the jury can consider in connection with all other facts and circumstances in deciding whether defendant was negligent.”

It appears, therefore, that “Defendant was on the wrong side of the road” was the instruction called for in this situation by the MAI and Rule 70.02(b) to the exclusion of any other instruction on the same subject.1 Rule 70.02(c) provides that when an applicable MAI instruction is not used, failure to do so constitutes error, “its prejudi[750]*750cial effect to be judicially determined.” We find no prejudicial error.2

A test for judicially determining the prejudicial effect of a deviant MAI instruction, which is not otherwise unfavorable to the opposing party, is whether it places a greater burden on the party submitting it than would the conforming MAI instruction. Wagoner v. Hurt, 554 S.W.2d 587, 590 (Mo.App.1977); Curators of University Missouri ex rel. Shell-Con, Inc. v. Nebraska Prestressed Concrete Co., 526 S.W.2d 903 (Mo.App.1975). Here a reasonable jury would likely demand more evidence to find that defendant “drove” in the wrong lane than to conclude merely that defendant “was” in the wrong lane. It remains, however, that the jury must determine, regardless of whether the instruction is “drove” or “was”, that the defendant’s negligence was what caused him to be on the wrong side of the road. Our impression, and the Comments and Notes on Use previously mentioned support our view, is that the revision of MAI 17.13 was made to permit the use of one common instruction in wrong side of the road eases, furthering the MAI goal of standardizing jury instructions. The crucial determination for the jury is whether the defendant was negligent.

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604 S.W.2d 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindsey-v-pettus-moctapp-1980.