State Ex Rel. Ambrose v. Trimble , 304 Mo. 533 ( 1924 )

In the action of Ambrose v. C. A. Railroad Co., the trial court gave one instruction for plaintiff which reads as follows:

"3-P." "The court instructs the jury that if you find a verdict for the plaintiff and further believe and find from the evidence that the mother of the deceased, Margaret Ambrose, was dependent upon him for support and that she had been receiving such support from him and that she sustained pecuniary loss by reason of his death, then you may in assessing the damages (if any) take into consideration the age, occupation, condition of health, habits and earning capacity (if any) and the reasonable expectancy of the deceased as you find has been shown by the evidence and you may assess as damages (if any) such sum as will be reasonable compensation for the loss of such pecuniary benefits as you find from the evidence the mother, Margaret Ambrose, would in all reasonable certainty have received from the deceased, also taking into account the age and the life expectancy of the mother, as you find to be shown by the evidence."

The court also gave another instruction for plaintiff which reads thus:

"2-P." "The court instructs the jury that if you believe from the evidence that the defendant railroad company was engaged in commerce between states and that said Ambrose was engaged in its service in carrying on said commerce, as defined in these instructions, then his negligence in failing to look for or avoid the train that killed him does not constitute a defense to defendant's negligence, if you find it was negligent as defined in these instructions, but only goes to the reduction of damages; and if you find that Margaret Ambrose was damaged by his death a full recovery should not be had for such damages but only a proportional amount thereof bearing the same relation or ratio to the full amount of damages she sustained as the negligence, if any, attributable to the defendant bears to the entire negligence attributable to both deceased and defendant."

The Court of Appeals held these instructions were in conflict (and that "3-P" was wrong), and reversed the judgment and remanded the cause. Relator sued out a writ of certiorari to quash the record on the ground that this holding is in conflict with controlling decisions of this court. The majority opinion holds there was no conflict in the instructions and that the holding of the Court of Appeals to the contrary is in conflict with decisions of this court.

The instructions concede the presence in the action for damages of the issue of contributory negligence. In fact, instruction "2-P" concedes the existence of contributory negligence. In view of decedent's contributory negligence plaintiff was not entitled to recover full compensation for her loss. By the act under which she sued she was entitled to recover such part of full compensation as would be commensurate with the negligence of the railroad when compared with the sum of the negligence of the railroad and deceased. This is not denied in this case. In the face of this conceded rule instruction "3-P" unequivocally tells the jury they may assess damages in "such sum as will be reasonable compensation for the loss of such pecuniary benefits as you find from the evidence the mother, Margaret Ambrose, would in all reasonable certainty have received from the deceased." The other qualifications in the instruction do not affect the present question. This instruction covers the whole matter and plainly tells the jury they can include in the assessment of damages plaintiff's whole loss on account of her son's death. This authorized an assessment against the railroad of damages which the statute under which the action was brought did not permit tobe assessed against it; to-wit, a part of the whole damages which bore the proportion to the whole that the conceded contributory negligence of deceased bore to the whole negligence made up of his contributory negligence and the railroad's negligence. The instruction is in conflict with the statute and is erroneous on the facts to which it applied.

The majority opinion seems to advance as the reasons for its ruling that the holding of the Court of Appeals on this question is in conflict with decisions of this Court: (1) that it is, at times, held here that a plaintiff's instructions may authorize a verdict for him without taking thought of affirmative defenses, as in certain cases cited, and (2) that instruction "2-P" cured the error in instruction "3-P," "if any." With respect to the first of these the argument in a measure seems to proceed on the theory that the fact that contributory negligence is not a part of a plaintiff's case but is a defense, authorized the giving of instruction "3-P," or, at any rate, renders it curable by an independent instruction. In that instruction the jury were told what damages the law authorized them to allow. It was complete in itself and purported to state the proper basis of assessment of damages. It clearly directed the jury that they could allow forall of plaintiff's loss, and thereby authorized them to allow for the part of the loss attributable, under the statute, to the negligence of the deceased. In short, the instruction expresslyauthorized a finding of damages for an element of loss for which the statute expressly denied a recovery. This cannot be justified by sound logic. The instruction tells the jury that a thing is the law which, precisely and by statute, is not the law.

Further, the cases which seem to permit a plaintiff, in his instructions, to exclude the defense of contributory negligence (and others) from consideration by the jury announce a rule which seems obviously erroneous and one broad enough to include instruction "3-P" but one which has not yet been applied to hold correct a direction to a jury to allow damages which the law forbids them to allow. There are decisions which hold that an instruction like "3-P" is cured by one like "2-P." [McIntyre v. Railway, 286 Mo. l.c. 260.] This case was decided January 10, 1921. The same Division in Jaquith v. Plumb, 254 S.W. l.c. 93 (July 14, 1923) unanimously held that: "The instruction purported to cover the whole case and directed a verdict for the plaintiff without requiring the jury to pass upon the plea of contributory negligence. This error was not cured by giving another instruction submitting that issue to the jury." Cases are cited. The same principle was applied in State v. Slusher, 256 S.W. l.c. 819. This rejects the rule which includes that upon which the present majority opinion is founded. On the question in this case one Court of Appeals has held that this court now permits instructions which exclude all affirmative defenses. In that case the action was upon a policy of insurance. There was a defense, and evidence to support it, that the policy had been violated with respect to keeping gasoline in the insured railroad car. There was no contention such a violation would not defeat the action. The jury were instructed that if plaintiff owned the car and it was insured in defendant company at the time of loss, the verdict should be for plaintiff. The Court of Appeals reluctantly followed decisions of this court which (1) justify such an instruction, and (2) others which hold they are cured by defendant's instructions, and affirmed the judgment. That case is pending here on certiorari. In it some decisions were followed and that interposes a difficulty. In the instant case, however, the Kansas City Court of Appeals did not follow these decisions. We have the power on this record, since the Court of Appeals has not followed these late decisions, to overrule them if they are wrong and let the ruling of the Court of Appeals stand. This has long been the rule in certiorari. This court should take this course in this case and re-establish the rule which condemns misdirection of juries and conflicting instructions.

The re-arrangement of the paragraphing and numbering of the instructions in question would not change the situation. Misdirection is error whatever form it takes and whatever the sequence is and whether or not there is given a sound instruction with which it conflicts. Graves, C.J., andWalker, J., concur.