author: MONTGOMERY, Judge. WILLIAMS, Judge

text:
    ALVA COAL CORPORATION, Appellant, v. Royce TROSPER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 7, 1964.
    William A. Rice, Harlan, for appellant.
    Grant F. Knuckles, W. R. Lay, Pineville, for appellees.
   MONTGOMERY, Judge.

Royce Trosper, appellee, filed his claim with the Workmen’s Compensation Board on the ground that he suffered total and permanent disability by reason of silicosis. The Board found that he had failed to give his employer timely notice of the fact that he was suffering from silicosis. On appeal the circuit court held that the Board was in error under the authority of Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167, and related cases. Those cases had not been decided at the time the Board made its award.

The Chitwood case said that notice of disability must be given by the employee to his employer when the following conditions, concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee knows or should know, by the exercise of reasonable care and diligence, that he is suffering from the disease.

Trosper worked for the Black Star Coal Company from September 1948 to January 1959, at which time the Alva Coal Corporation took over the operation of the mine where he worked. He continued to work for the Alva Coal Corporation until the mine closed.

In 1956, Trosper was examined by Dr. Adam Stacey. He was advised that there were silico-nodules in his lungs. He was hospitalized and told not to go back to work in the mines. Trosper testified that he had suffered from shortness of breath for about a year and a half to two years before the mine closed and that it had been “real bad during the last six or eight months.” He further testified that during the latter period of time he could not do his work properly and that his coworkers had pitched in and helped him. Dr. T. H. Biggs examined Trosper on September 29, 1959. Dr. Biggs testified that Trosper told him that he had been short-winded for two years, that his condition had been getting worse during the past year, and that he could not do his job as he should. However, Trosper had continued in full-time employment by the same employer until June 23, 1960.

His claim for compensation is dated July 23, 1960. The date of filing with the Board is uncertain unless it is considered that the perforated endorsement

“REC’D
*8-15-60
WComB”

constitutes a filing endorsement. The space for insertion on Form No. 11 of the claim number assigned is blank. Such constitutes a very uncertain and unsatisfactory record of filing, but it will be considered a filing of the claim as of August IS, 1960. In doing so, the endorsement of receipt is considered tantamount to filing, which need not be true in every case.

Under the definition of disability because of silicosis stated in Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504, Trosper’s disability arose on June 23, 1960, when he ceased “to be employed in full-time employment” by appellant. As indicated, his claim was filed August 15, 1960. In view of the Tibbs case, the notice of claim was timely.

The petitions for rehearing in this case, the Tibbs case, and Brock v. International Harvester Company, Ky., 374 S.W.2d 507, were considered at the same time because of the related question involved. This represents the opinion of the Court as expressed in the latter two cases, which becomes the law despite the contrary view expressed heretofore by the writer.

Judgment affirmed.

WILLIAMS and PALMOSE, JJ., dissenting.

WILLIAMS, Judge

(dissenting).

Under Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504, an employee is not to be considered disabled so long as he continues in full-time employment of the same employer, for the purpose of the notice statute, KRS 342.316(2). The same interpretation was placed upon the limitation statute in Brock v. International Harvester Company, Ky., 374 S.W.2d 507. I agree that full-time employment is a good criterion. But it should be that and no more. It should not be made absolute but should operate as a standard which may be overcome by other factors.

In this case the employee had been disabled for at least six to eight months by his own admission. He knew he was disabled and his fellow employees knew he was disabled (they “pitched in and helped him”). Obviously the work he was capable of doing was not up to his employer’s standards, else his fellow workers would not have needed to assist him. In the Tibbs case we said that an employee would not be considered disabled if, according to his employer’s standards, he had sufficient capacity to be continued in full-time employment. An employee who requires others to do a portion of the work assigned to him does not measure up to his employer’s standards.

One purpose of the notice statute is to permit the removal. of an employee from a danger area after he has become disabled by an occupational disease. If the employer is not notified of a disability he cannot be expected to do anything about it.

In this case the employee was in fact disabled for at least six to eight months. Failure to give notice until the end of that period certainly was not reasonable.

For this reason I respectfully dissent. PALMORE, J., joins me in this dissent.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    Lakie FYFFE, Appellant, v. Link FYFFE, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 7, 1964.

      J. K. Wells, Paintsville, for appellant.
    No counsel for appellee.
   MOREMEN, Judge.

This is a proceeding under an agreed statement of facts pursuant to KRS 418-020.

Appellant, Lakie Fyffe, and appellee, Link Fyffe, Jr., were married September 20, 1947. Their only son, Melvin Fyffe, was born on September 16, 1948. When appellee returned from service with the Armed Forces in 1943, he formed a partnership with his father, Link Fyffe, Sr., and engaged in the well-drilling business. It was an equal partnership and during the course of time they acquired well-drilling rigs and tools of substantial value. In November 1949, appellee was elected to the office of tax commissioner for Johnson County. He continued in the drilling business with his father. Appellant served as a deputy tax commissioner in his office. In 1950, he returned to active dirty in the army and served for nine months. During this period his wife was appointed and served as tax commissioner. Upon his discharge from the army he was reappointed tax commissioner, but devoted his time almost entirely to the drilling business. His wife, as deputy tax commissioner, performed all the duties of the office. During this period they accumulated considerable property which was purchased with the joint earnings of the parties.

In a motorcycle accident in July 1954, appellee received severe injuries, including brain damage, which required extensive hospitalization. In January 1955, he was adjudged to be mentally incompetent and appellant was appointed as his committee. After appellee was injured, his father, Link Fyffe, Sr., continued to operate the partnership business, but distributed no part of any earned profits to appellant as committee for appellee. During this period appellant obtained employment as a part time bookkeeper for two corporations. Out of her earnings she supported herself and her son.

In March 1959, appellant, as committee for appellee, filed suit for an accounting of the partnership assets and sought to recover appellee’s share of the net earnings. In December 1959, an agreed judgment was entered in that action whereby the partnership assets were valued at $32,-156.77, and it was directed that one-fourth of said sum, or $8,039.14, be paid to appellant as guardian for her son “to be used exclusively for the support and maintenance and education of said son.” It was also provided: “This judgment will operate as a full accord and satisfaction of all claims or costs of action the parties hereto may have against each other.” On the same day, by proper inquest, appellee was restored to competency. He intervened in the settlement suit and a supplemental judgment was entered whereby ap-pellee ratified and confirmed the previous judgment by which he also had received one-fourth of the partnership assets. Appellant filed a final settlement as committee for appellee which was duly approved.

On February 19, 1960, appellant filed suit for divorce. Her complaint made no request for division or restoration of property, maintenance or support of her son, alimony or costs. On May 12, 1960, a judgment was entered in this divorce suit which granted a divorce to appellant and awarded custody of the child to her, subject only to reasonable visitation rights of the father.

This divorce judgment did not conform to KRS 403.065 which requires every judgment for a divorce to contain an order restoring property received during and in consideration of the marriage.

The record does not disclose the date upon which this proceeding under KRS 418.020 was filed, but it appears to be in the nature of a suit for restoration of property under subsection (2) of KRS 403.060. On May 16, 1961, a judgment was entered in the case under consideration by which the appellee was given practically all the property that these parties had accumulated by their joint efforts and joint earnings. In addition, the judgment contained this provision: the $8,039.14 paid to appellant in the settlement suit represents a “settlement in full between the parties, in view of the condition of the defendant, subject to further review if conditions so warrant.”

Appellant argues that the judgment was erroneous in that (1) the judgment in the partnership accounting suit, directing the payment of $8,039.14 to appellant as guardian, was not binding so far as it attempted to settle any claim which the son might have for his support; (2) the home and car were purchased from funds to which the husband and wife had contributed and each was entitled to one-half of the property; (3) the wife was entitled to restoration of insurance premiums paid by her; (4) the husband should be required to pay the divorce costs.

We will discuss these questions seriatim:

(1) The issue of the son’s rights is not proper in a suit for restoration. Since the point has been raised we will comment that it is generally true that the responsibility of a father to support his children cannot he voided or diminished by contract between the husband and wife. See Pegram v. Pegram, 310 Ky. 86, 219 S.W.2d 772. In any event we do not construe the court’s judgment as intending to imply that the matter is closed. It is apparent that the trial court indicated he. would review the matter of maintenance for the child “if conditions so warrant.”

(2) Restoration of property rights may be obtained in an action independent of and subsequent to a divorce suit if the property rights were not settled in that suit. Coleman v. Hunt, Ky., 258 S.W.2d 484. It is plain from the agreed statement of facts that appellant contributed a substantial and perhaps an equal amount of earnings to the purchase of the home and car. It is true that a portion of the purchase price of the car was paid out of partnership funds to the dealer at the time the title was transferred. We think, however, that the wife’s contributions to the funds were sufficient to entitle her to be allowed the one-half interest in each one.

(3) It is stated'-in the agreed facts that during the period of incompetency, the wife, in addition to ’supporting herself and her- son, paid out of her own independent funds premiums on insurance policies procured by her husband in which she was named as a beneficiary. These premiums totaled $545.71. After his restoration to competency the husband changed the beneficiary to persons other than his wife and child. She is entitled to restoration of those premiums. See Schauberger v. Morel’s Adm’r, 168 Ky. 368, 182 S.W. 198.

(4) In the divorce suit appellant made no request for costs of the divorce action and none was granted. In the instant suit she seeks recovery for the costs of the divorce litigation. The recovery of court costs in a divorce case is not a proper item of recovery in a suit for restoration of property. Any question of costs should have been decided in the divorce action or on an appeal therefrom.

The judgment is reversed and the case remanded for the purpose of entering a judgment in accordance with this opinion.

Judgment reversed.


author: STONE, Judge.

text:
    Norma E. GREENE, Plaintiff-Respondent, v. Edna M. Thompson MORSE, Defendant-Appellant.
    No. 8211.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1964.
    Motions for Rehearing or to Transfer Overruled Feb. 24, 1964.

      Ford, Ford & Crow, Kennett, for defendant-appellant.
    Sharp & Hatley, New Madrid, for plaintiff-respondent.
   STONE, Judge.

■ In this jury-tried action for damages on account of injuries alleged to have resulted from a vehicular upset, defendant appeals from an adverse judgment of $3,000 entered upon a unanimous jury verdict. About 3:30 P.M. on January 5, 1962, plaintiff Norma E. Greene was riding in a 1953 Ford sedan owned and then being driven by her sister, defendant Edna M. Thompson, in a northerly direction on U. S. Highway 63 near Gilmore, Arkansas. The-weather was clear and the 23-foot paved roadway was level and dry. As defendant started around a slight curve to her left while driving about sixty to sixty-five miles-per hour, she remarked, “how about some music”; and, suiting her action to the unanswered question, she reached for the-radio with her right hand. “That’s when-she ran off” the paved roadway onto the-right-hand or east shoulder of the highway,, where the Ford automobile traveled “just a little bit” before defendant “swung back” to-her left, lost control of the vehicle, crossed the paved roadway, ran off the embankment on the opposite or west side of the highway,, and came to a stop in the west ditch headed back toward the south. With the medical evidence omitted from the transcript by agreement, no question with respect to-plaintiff’s injuries or the size of the verdict is presented here.

Defendant’s-appellant’s primary contention upon appeal is that the trial court erred in refusing to direct a verdict for defendant, because (so defendant asserts), as a matter of law, plaintiff was a “guest” within the contemplation and meaning of the Arkansas guest statutes [Ark.Stats. §§■ 75 — 913 to 75 — 915], the pertinent portions of which are quoted marginally, and defendant was not guilty of willful and wanton misconduct in the operation of her automobile. In determining whether plaintiff made a submissible case, we must consider the evidence in the light most favorable to plaintiff, must accord to her the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiff’s case. Goodman v. McCulley, Mo., 367 S.W.2d 580, 583(1); Woolf v. Holton, 240 Mo.App. 1123, 1127, 224 S.W.2d 861, 863(2).

Defendant, a middle-aged lady residing in Kennett, Missouri, was betrothed to one Pete Morse of that city. For the purpose of purchasing furnishings for the home she and Pete were establishing, she had made two trips to Memphis, Tennessee, during December 1961. On the first trip, Pete accompanied her and drove, while on the second trip her sister (plaintiff) accompanied her and likewise drove. Desiring to make a third trip to Memphis for the same purpose, defendant called plaintiff on Monday, January 1, 1962, and “asked me [plaintiff] if I would go with her” on the following Friday, January 5. Plaintiff replied “that was too far off for me to make her any promise at that time.” On Wednesday, January 3, defendant inquired of her sister whether she had decided to make the contemplated trip to Memphis on Friday. According to plaintiff, “I told her [defendant] that Pete should go with her, I didn’t want to go and help select things for her new home.” Defendant again talked with her sister on the evening of Thursday, January 4. That conversation, as related by plaintiff, was: “She [defendant] told me that she had asked Pete to go to Memphis with her, and he told her that it was impossible for him to go, he couldn’t get away from the shop that day, and she further told me that she had some things that she would give me, * * * she had some drapes, lamps, bedspreads and things * * * she would give me these things to furnish my apartment if I would go with her. * * * She hadn’t been feeling well, so I told her Thursday night I would go Friday morning.”

Before starting on Friday, January 5, defendant asked plaintiff to drive; and, pursuant to that request, plaintiff did drive the entire distance to Memphis over a route of her choice. The only stop on the way was at a filling station where (so plaintiff said) “Edna [defendant] used the restroom and I had the car serviced.” In Memphis, plaintiff proceeded to a parking garage and received the ticket from the attendant. The sisters then visited several department stores, where they looked at “items relating to the furnishing of [defendant’s] house” and defendant asked plaintiff’s opinion concerning some of those items. Plaintiff purchased nothing for herself that day. After the sisters returned to the parking garage, plaintiff produced the ticket, paid the charge for parking, and drove to a roadside eating establishment where the sisters stopped for a late lunch. After the meal, defendant took the wheel for the first time (on this trip) and drove some sixteen or seventeen miles to the place of accident.

Since the accident under consideration occurred in Arkansas, the substantive law of that state governs [Russell v. Kotsch, Mo., 336 S.W.2d 405, 408(1); Hall Motor Freight v. Montgomery, 357 Mo. 1188, 1195, 212 S.W.2d 748, 753(9), 2 A.L.R.2d 1292] and Arkansas decisions construing and applying the Arkansas guest statutes are here controlling. Davis v. Wyatt, 359 Mo. 963, 969, 224 S.W.2d 972, 975(1); Yarnall v. Gass, 240 Mo.App. 451, 455, 217 S.W.2d 283, 285(2). In Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326, the Supreme Court of Arkansas struck down as unconstitutional the last sentence in Ark.Stats. § 75-915, providing that no person related by blood or marriage within the third degree of consanguinity or affinity to the owner or operator of a motor vehicle should have a cause of action against such owner or operator for personal injuries sustained while in such vehicle. With this statutory provision laid aside, the mere fact that plaintiff and defendant were sisters neither excluded plaintiff from being a guest nor automatically made her one regardless of circumstances, and her status is determinable under the general rule [Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868(5), 873] thus announced in the Arkansas cases: “The general rule for determining the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark. Stats. §§ 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest.”

Defendant’s able counsel earnestly contend that “the evidence clearly established that the only benefit accruing to [defendant] was incidental to having [plaintiff’s] company and companionship on the trip.” On the other hand, plaintiff’s counsel point out that defendant “hadn’t been feeling well” and, before starting on the trip, asked plaintiff to drive; that plaintiff did drive the entire distance to Memphis over a route of her choice; that the sole purpose of the trip was to purchase furnishings for the home being established by defendant and her fiance; that defendant pressed plaintiff to make the trip not merely because she desired her sister’s companionship but more importantly because she sought her advice and assistance in the selection of furnishings at Memphis; and that plaintiff’s presence on the trip was regarded by defendant as so beneficial and valuable to herself that she proposed and entered into an inducing agreement that she would give her sister various household furnishings to make the trip — “I [defendant] told her if she would go with me that there was [sic] drapes, bedspreads, rugs, lamp table, telephone table, some pictures, and things that I would give her for the apartment that she had gone out and rented with just the bare necessities to live in, and I would give her these things * * * I was going to dispose of when we moved to the new house.” It may be observed in passing that counsel accord no significance, and neither do we, to such incidental payments as plaintiff may have made in connection with servicing and parking of the automobile.

It appears to be true in Arkansas [Simms v. Tingle, 232 Ark. 239, 335 S.W.2d 449, 452, 453], as elsewhere, that to permit a finding that an occupant is a passenger and not a guest, a tangible and substantial benefit must accrue to the operator by reason of the occupant’s carriage. Broadly stated, it is clear that social companionship alone, simple hospitality, common courtesy, or presence impelled by social amenity does not confer such benefit. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 475, p. 40; annotation 10 A.L. R.2d 1351, 1360. But it is equally well-settled that a transfer of money, property, or something of material value is not essential to confer a tangible and substantial benefit, and that, as the Arkansas cases recognize, a benefit of that nature may be found “if the carriage tends to the promotion of the mutual interests of both the [occupant] and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator.” Simms v. Tingle, supra, 335 S.W.2d loc. cit. 450(1); Henshaw v. Henderson, Ark., 359 S.W.2d 436, 437. Otherwise described, a situation in the last category is one “where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver * * *." Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 91, 10 A.L.R.2d 1342, 1347. In the final analysis, the status of an occupant in any given case must be determined on the particular facts and circumstances of that case; and since judges, as well as jurors, sometimes disagree as to the significance of certain facts and the inferences to be drawn therefrom, it is not surprising that the issue as to status of an occupant frequently has bred nagging difficulty and sharp division of judicial opinion. E. g., Simms v. Tingle, supra; Truitt v. Gaines, 3 Cir., 318 F.2d 461; Scholz v. Leuer, 7 Wash.2d 76, 109 P.2d 294.

Returning to the facts of the case at bar, the undisputed evidence was that the sole purpose of the trip to Memphis was to purchase furnishings for the home defendant and her fiance were establishing. So, the trip was not undertaken for social or recreational purposes. And, although defendant no doubt desired the companionship of her sister and, in that respect, the trip had a social aspect, it would seem that defendant’s insistence that her sister accompany her was motivated by considerations which went far beyond the desire for companionship, to wit, by a desire for assistance in driving and by an eagerness for aid and advice in the selection of household furnishings at Memphis.

We have not overlooked defendant’s argument that there was no evidence that the invitation to plaintiff was conditioned on, or was extended in consideration of, her doing any part of the driving. Hoover v. Harris, 177 Tenn. 455, 151 S.W.2d 152, 154-155; 8 Am.Jur.2d, Automobiles and Highway Traffic, § 479, p. 45. True, there was no direct evidence to that effect, but we think it fairly inferable that assistance in driving was one of the considerations which motivated defendant’s invitation thrice repeated, in view of the undisputed evidence (a) that only a few days previously plaintiff had driven on another trip to Memphis for the same purpose, (b) that, although defendant’s physical condition was not such as to prevent her driving, she was not feeling well, and (c) that, before starting on the morning of January 5, defendant asked plaintiff to drive and the latter did so. But if plaintiff’s assistance in driving be disregarded, the undisputed evidence certainly would have permitted findings that defendant’s eagerness to have her sister’s aid and advice in the selection of household furnishings was a prime motivating consideration for her insistence that plaintiff make the trip, that this consideration was made known to plaintiff before she consented to go, and that it was of such concern and significance to defendant that, as a matter of inducement, she proposed and agreed to give various household furnishings to plaintiff — an agreement, in effect, that plaintiff would be paid in personalty to accompany defendant.

Counsel have cited, and we have found, no factually-analogous Arkansas case; but several cases involving the construction and application of similar guest statutes in other jurisdictions afford support for our conclusion that, in the instant case, the triers of the facts reasonably might have found that plaintiff accompanied defendant at the latter’s insistence on a trip undertaken for the sole purpose of attaining an objective of defendant, and that a tangible and substantial benefit accrued to defendant by reason of plaintiff’s carriage. Accordingly, we are of the considered opinion that the determinative issue as to plaintiff’s status, i. e., whether a guest or a passenger, was for the jury. It necessarily follows that we must reject defendant’s primary contention that the trial court erred in refusing to direct a verdict for her.

The only other point presented by defendant is that there was “a material and fatal variance” between plaintiff’s petition and “the proof and theory submitted.” Defendant’s argument runs along the line that plaintiff alleged “gross, willful and wanton negligence” in her petition and thus undertook to plead a cause of action within the Arkansas guest statutes [Ark.Stats. §§ 75-913 and 75-915], but that her proof and submission was for ordinary negligence and thus for a different cause of action without the guest statutes. To rule and disallow this point on its merits, we pass with some hesitancy the meritorious objection that it has not been preserved properly for appellate review. V.A.M.R. Rule 79.03; V.A. M.S. § 512.160(1); Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609(10-12), and cases there cited.

Although the four particularized specifications of negligence in plaintiff’s petition were characterized as “acts and omissions of gross, willful and wanton negligence,” the petition also charged that plaintiff’s injuries were “a direct and proximate result of the foregoing negligence” and included other averments plainly indicating an intention to plead that plaintiff’s status was that of a passenger and not a guest. There was no attack upon the petition before trial ; and, during trial, there was no reference to the pleadings and no suggestion that any proffered evidence was not admissible under the petition. Plaintiff’s trial theory, as reflected by the evidence and by her verdict-directing instruction 1 (to which there was no objection either before submission or in the motion for new trial), was that defendant had been guilty of negligence and that plaintiff, a passenger, was entitled to recover for injuries resulting therefrom.

It is true that negligence, which “conveys the idea of inadvertence” [Plant v. Thompson, 359 Mo. 391, 400, 221 S.W.2d 834, 839; 38 Am.Jur., Negligence, § 48, p. 692], is one kind of tort, while willful and wanton misconduct, which “implies intentional wrongdoing” [Evans v. Illinois Central R. Co., 289 Mo. 493, 503, 233 S.W. 397, 400] is another kind of tort [Nichols v. Bresnahan, 357 Mo. 1126, 1130, 212 S.W.2d 570, 573; Voss v. American Mutual Liab. Ins. Co., Mo.App., 341 S.W.2d 270, 279 (10); Carrow v. Terminal R. Ass’n. of St. Louis, Mo.App., 267 S.W.2d 373, 377(1)], and that allegations of negligence and willfulness, which are “mutually exclusive terms” [Plant v. Thompson, supra, 359 Mo. loc. cit. 400, 221 S.W.2d loc. cit. 839] should not be confused and commingled in the same count. Eoff v. Senter, Mo.App., 317 S.W.2d 666, 670; Agee v. Herring, 221 Mo.App. 1022, 1024, 298 S.W. 250, 252; Boyd v. St. Louis Transit Co., 108 Mo.App. 303, 83 S.W. 287. However, an unattacked petition charging that conduct is both negligent and willful is not a felo de se [O’Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S.W. 705(2, 3); Agee v. Herring, supra, 221 Mo.App. loc. cit. 1024, 298 S.W. loc. cit. 252(1)], for charges of negligence and willfulness are not necessarily repugnant because willful conduct may, and often does, include the element of negligence.

With allegations of negligence and willfulness improperly confused and commingled in the same count, the petition in the instant case would have been subject to seasonable attack. But no assault having been made on the petition prior to judgment, it here should be construed most favorably to plaintiff [Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 621(13); Worley v. Worley, Mo.App., 176 S.W.2d 74, 77 (4); Elmore v. Cox, Mo.App., 9 S.W.2d 681, 683(2)], and allegations unnecessary to statement of the submitted cause of action may be treated as surplusage and disregarded. Under the lex fori which generally controls as to matters relating to the remedy and procedure, including the construction and sufficiency of pleadings [15 C.J.S., Conflict of Laws, § 22a, loc. cit. 950; 11 Am.Jur., Conflict of Laws, § 188, pp. 501-502; Restatement, Conflict of Laws, § 592, p. 708], it must be held, at this stage of the litigation, that plaintiff’s petition was sufficient to state a cause of action on the submitted theory, i. e., that defendant had been guilty of negligence and that plaintiff, a passenger, was entitled to recover for injuries resulting therefrom. It may be observed that the same holding would be compelled under the law of the place of wrong. Dieter v. Byrd, Ark., 360 S.W.2d 495, 496(1, 2).

Furthermore, even if the petition had been insufficient to state a cause of action on the above theory, the case was tried by both parties without objection as if the submitted issues had been raised properly in the pleadings, so, after judgment, the. petition would be treated as amended to meet the proof and theory upon which the case was tried.

Finding no reversible error in any respect here assigned, the judgment is affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . Section 75-913. “No person transported as a guest in any automotive vehicle upon the public highways * * * shall have a cause of action against the owner or operator of such vehicle * * * for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle * * * unless such vehicle s * * was wilfully and wantonly operated in disregard of the rights of the others.”
      Section 75-914. “The term guest as used in this act [§§ 75-913, 75-914] shall mean self-invited guest or guest at sufferance.”
      Section 75-915. “No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, * * * shall have a cause of action for damages against such owner or operator, ⅜ * * for personal injury, * * * by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the wilful misconduct of such owner or operator. And in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator * * * have a cause of action for personal injury * * * against such owner or operator * * ⅜.”

      . 8 Am.Jur.2c!, Automobiles and Highway Traffic, § 482, p. 51; annotation 2 A.L.R. 2d 932, 933; 60 C.J.S., Motor Vehicles, § 399 (5) c, p. 1017.

      . Simms v. Tingle, 232 Ark. 239, 335 S.W.2d 449, 450(1); Henshaw v. Henderson, Ark., 359 S.W.2d 436, 437. To the same effect, see Whittecar v. Cheatham, 226 Ark. 31, 287 S.W.2d 578, 579; Payne v. Fayetteville Mercantile Co., 202 Ark. 274, 150 S.W.2d 966, 967; Arkansas Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538, 543(12), 9 NCCA(NS) 432; Ward v. George, 195 Ark. 216, 112 S.W.2d 30, 33. Consult also (applying Arkansas law) Frisby v. Olin Matkieson Chemical Corp., 8 Cir., 279 E.2d 939, 943; Hoover v. Harris, 177 Tenn. 467, 151 S.W.2d 152, 155; McMahon v. DeKraay, 70 S.D. 180, 16 N.W.2d 308, 309. See generally Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 4(1), § 2292, loc. cit. 307-310.

      . Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906, 907 (4); Simms v. Tingle, supra, 335 S.W.2d loc. cit. 452; Allison v. Ely, 241 Ind. 248, 170 N.E.2d 371, 377(8); Albert McGann Securities Co. v. Coen, 114 Ind.App. 60, 48 N.E.2d 58, 62(9, 10); Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221, 224(4, 5); Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140, 143(4), and cases there collected.

      . Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 198; Young v. Bynum, Tex. Civ.App., 260 S.W.2d 696, 699; Franzen v. Jason, Tex.Civ.App., 166 S.W.2d 727, 728(1), writ refused; Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519, 523 (7); Miller v. Miller, 395 Ill. 273, 69 N.E.2d 878, 882; Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 4(1), § 2292, loe. eit. 320; 8 Am.Jur.2d, Automobiles and Highway Traffic, § 475, p. 40.

      . For the distinction between “passenger” and “guest,” see Dieter v. Byrd, Ark., 360 S.W.2d 495, 496-497, and cases there cited; 2 Restatement of Torts, § 490, Comment a, p. 1272.

      . Dorn v. Village of North Olmsted, 133 Ohio St. 375, 381, 14 N.E.2d 11, 14; Milkovich v. Bune, 371 Pa. 15, 89 A.2d 320, 322(5); Cook v. Faria, 73 Nev. 295, 318 P.2d 649, 650-651(2-4); Sadberry v. Griffiths, 191 Cal.App.2d 610, 12 Cal.Rptr. 773, 777 (6); Ray v. Hanisch, 147 Cal.App.2d 742, 306 P.2d 30, 34(8); Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62, 65(4).

      . See Arkansas eases cited in note 3, supra.

      . See also Vest v. Kramer, 158 Ohio St. 78, 107 N.E.2d 105, 109; Voelkl v. Latin, supra, 16 N.E.2d loc. cit. 522(3); Van Auker v. Steckley’s Hybrid Seed Corn Co., 143 Neb. 24, 8 N.W.2d 451, 454 (5); Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601, 604-605; Clapp v. Hester, 169 Cal.App.2d 558, 337 P.2d 525; 60 C.J.S., Motor Vehicles, § 399(5)b, loc. cit. 1012-1013; annotation 10 A.L.R.2d 1351, 1361-1373.

      . Miller v. Miller, 395 Ill. 273, 69 N.E.2d 878, 882(3); Lloyd v. Runge, 186 Kan. 54, 348 P.2d 594, 598; 8 Am.Jur.2d, Automobiles and Highway Traffic, § 475, p. 40; 60 C.J.S., Motor Vehicles, § 399 (5) a, p. 1009.

      . See particularly Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704(4-6), 16 NCCA (NS) 317. Consult also O’Hagan v. Byron, 153 Pa.Super. 372, 33 A.2d 779 (6); Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330(2), 274 N.W. 379; Shpakow v. Brown, 300 Mich. 678, 2 N.W.2d 812(1); Hall v. Kimball, 355 Mich. 333, 94 N.W.2d 817(1); Liberty Mut. Ins. Co. v. Stitzle, 220 Ind. 180, 41 N.E.2d 133 (4); Goldberg v. Cook, 206 Minn. 450, 289 N.W. 512(2).

      . Dieter v. Byrd, supra, 360 S.W.2d loc. cit. 497 (4); Simms v. Tingle, supra, 335 S.W.2d loc. cit. 450(2); Whittecar v. Cheatham, supra, 287 S.W.2d loc. cit. 579; Brand v. Rorke, supra, 280 S.W.2d loc. cit. 907; Corruthers v. Mason, 224 Ark. 929, 277 S.W.2d 60, 62(2). See also Goodman v. McCulley, Mo., 367 S.W.2d 580, 583 (2, 4); Hartsell v. Hickman, D.C.Ark., 148 F.Supp. 782.

      . Nichols v. Bresnahan, 357 Mo. 1126, 1130-1131, 212 S.W.2d 570, 573; Carrow v. Terminal R. Ass’n. of St. Louis, Mo.App., 267 S.W.2d 373, 377(2). See also McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 506, 251 S.W.2d 704, 708(5); Brisboise v. Kansas City Public Serv. Co., Mo., 303 S.W.2d 619, 623; Eoff v. Senter, Mo.App., 317 S.W.2d 666, 671.

      . Osborn v. Chandeysson Elec. Co., Mo., 248 S.W.2d 657, 661(2); Henry v. Cleveland, C., C. & St. L. Ry. Co., 332 Mo. 1072, 61 S.W.2d 340, 341(4), certiorari denied 290 U.S. 627, 54 S.Ct. 70, 78 L.Ed. 546; Jensen v. Turner Bros., Mo.App., 16 S.W.2d 742, 745(4).

      . Eoff v. Senter, supra, 317 S.W.2d loc. cit. 670(1, 2); Carrow v. Terminal R. Ass’n. of St. Louis, supra, 267 S.W.2d loc. cit. 377 (3); Agee v. Herring, 221 Mo.App. 1022, 1024—1025, 298 S.W. 250, 252(1); Boyd v. St. Louis Transit Co., 108 Mo.App. 303, 83 S.W. 287; Maggioli v. St. Louis Transit Co., 108 Mo.App. 416, 83 S.W. 1026; McCallum v. Executive Aircraft Co., Mo.App., 291 S.W.2d 650, 655(4, 6). See Sharp v. Kurth, Mo.App., 245 S.W. 636, where seasonable attack upon the petition had been made.

      . V.A.M.R. Rule 55.54; V.A.M.S. § 509.-500; Evett v. Corbin, Mo., 305 S.W.2d 469, 474(5, 6); Chilcutt v. Baker, Mo.App., 355 S.W.2d 338, 339(1); May Furnace Co. v. Conaway, Mo.App., 352 S.W.2d 40, 42(1); Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511, 516(8).


author: HOGAN, Judge.

text:
    Almeda BRANCH, Plaintiff-Respondent, v. GORDON’S TRANSPORTS, INC., a corporation, Defendant-Appellant.
    No. 8206.
    Springfield Court of Appeals. Missouri.
    Jan. 28, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 24, 1964.

      William L. Mason, Jr., Robert T. Smith, St. Louis, Dalton & Treasure, John Hall Dalton, James C. Bullard, Kennett, for defendant-appellant.
    Ward & Reeves, Eugene E. Reeves, Caruthersville, for plaintiff-respondent,
   HOGAN, Judge.

This is an action to recover damages for personal injuries sustained in a collision between motor vehicles. A jury found for the plaintiff and assessed her damages at $8,500.00. The defendant has appealed, assigning error to the giving of plaintiff’s verdict-directing instruction and contending that the damages awarded are excessive.

The collision occurred in or near the intersection of U. S. Highway No. 61 and County Route E (which is referred to as the Cooter road) in Pemiscot County on December 4, 1961, at about 5 :15 P.M. At the place in question, Highway 61 runs generally north and south; it is a 24-foot concrete slab with shoulders 10 feet wide at this point. It is intersected at right angles by Route E, 22 feet wide, which fans out to form a Y-shaped intersection on either side of Highway 61. Highway 61 is level and straight in that vicinity, and the intersection is clearly visible, ordinarily, at least 500 feet to the south.

At the time of the accident, it was dark and it was raining. The plaintiff was traveling northward in her own automobile, which was being driven by her husband. Some distance behind her, also traveling northward, was the defendant’s trailer truck. The plaintiff, her husband and two friends had been shopping in a nearby community and were returning to Cooter. As the plaintiff’s automobile was turning right, with the “back wheels * * * a foot or a foot and a half on the highway, or that much off,” according to the drivex, and “plum off of the highway,” according to the plaintiff, the tractor or cab of the defendant’s truck collided violently with the right rear of the plaintiff’s automobile. Neither the plaintiff nor her husband saw the truck prior to the collision, but afterward the “truck was sitting in the road over into the Cooter road jackknifed.” The plaintiff claims that she sustained a soft-tissue whiplash injury as a result of the accident.

The defendant’s driver testified that he had seen the Branch vehicle between one-quarter and one-half mile before he came to the intersection. The truck, according to the driver, was being operated northward behind the Branch vehicle at a slow rate of speed, about 20 miles an hour, and “three or four cars” were approaching in the southbound (west) lane. When the truck had come within 70 or 80 feet of the Branch vehicle, and as the Branch vehicle was being turned to the right, or east, an oncoming car “just darted” out of the southbound lane into the northbound, or east, lane in which the truck was being driven. The driver applied his brakes; the truck “just automatically jackknifed,” and went over to “the right side of the road.” Because he “was riding backwards” just before the collision, the driver was unable to say where the third vehicle went. The testimony of a highway patrolman tended to prove that the defendant’s' truck had skidded diagonally to the northeast “in a jackknifed position” and had “slid into” the plaintiff’s car. There were, in his words, “tire marks and skids off of the highway on the shoulder * * * in the mud.” The truck had come to rest with the tractor pointing generally in an easterly direction in the north traffic lane of Route E, with the rear of the trailer pointing south or somewhat southeast. Other evidence will be noted in the course of the opinion.

The defendant’s first and principal complaint here is that the trial court erred in giving the plaintiff’s verdict-directing instruction for the reason that the instruction ignores or excludes from the jury’s consideration the undisputed evidence that the defendant’s vehicle had jackknifed and skidded out of control at the time of collision. Such a submission in this case, as the defendant’s argument runs, is prejudicial because it fails to hypothesize for the jury’s consideration the possibility of an accidental, or at least non-negligent, cause of the collision, which the defendant maintains the plaintiff’s evidence shows. The plaintiff seeks to avoid a consideration of this point on the merits by maintaining it was not properly preserved for review in the defendant’s motion for new trial, and she further maintains that, in any event, the instruction ivas properly given.

The case was tried and submitted, as counsel concede here, upon the theory that the defendant’s negligence could he inferred from the circumstances by application of the so-called “rear-end collision rule.” This “rule” is that ordinarily if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle. State ex rel. Spears v. McCullen, 357 Mo. 686, 690-692, 210 S.W.2d 68, 70-71; Jones v. Central States Oil Co., 350 Mo. 91, 102, 164 S.W.2d 914, 920; Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 408-409 [1]; Doggendorf v. St. Louis Pub. Sv. Co., Mo.App., 333 S.W.2d 302, 305 [1]; Hughes v. St. Louis Pub. Sv. Co., Mo.App., 251 S.W.2d 360, 362 [3], The plaintiff submitted her case upon a single verdict-directing instruction which, after hypothesizing the respective positions of the two vehicles, and requiring a finding that plaintiff was a passenger in her own automobile and that it was “in the process” of making a right turn, then predicated a verdict for the plaintiff upon a finding that “[the driver] thereafter allowed the tractor-trailer unit that he was operating to run into and collide with the rear end of the said Buick automobile * * * and that in allowing the tractor-trailer to collide with the rear end of the Buick automobile * * * [the driver] failed to exercise the highest degree of care and was thereby negligent * * The language used, at least in submitting negligence, is very similar to that found in Instruction 1 in State ex rel. Spears v. McCullen, supra, 357 Mo. at 690, 210 S.W.2d at 70.

One of the arguments advanced here by the defendant is that the “rear-end collision rule” is wholly inapplicable to this case, and that plaintiff’s verdict-directing instruction is erroneous for that reason. We do not consider it necessary for the purpose of this appeal to examine the limits and underlying theory of the “rear-end collision rule.” That is not the real issue here. Rather, the precise question before us is whether upon the facts the plaintiff’s mode of submission prejudicially assumed that the defendant’s driver was in control of the truck, and erroneously excluded the possibility of a non-negligent cause of the accident through an insufficient hypothesis of the facts. In our view, this question must be examined in light of those cases which hold that if, in the process of making a prima facie case or in proving conduct which would ordinarily constitute negligence per se, the plaintiff adduces evidence which tends to show an accidental or non-negligent cause, or a matter which would exonerate the defendant, then the plaintiff’s verdict-directing instruction may not ignore the evidence which tends to excuse the defendant, but must hypothesize the possibly non-negiigent causes or exculpatory facts and require the jury to find that the defendant’s conduct was in fact negligent. Otherwise, the verdict-directing instruction is said to be erroneous as ignoring the real issue, or excluding it from the jury’s consideration. Doyle v. Wilmesherrer, Mo., 358 S.W.2d 837, 841 [7]; Kitchen v. Wilson, Mo., 335 S.W.2d 38, 45 [8]; Evans v. Colombo, Mo., 319 S.W.2d 549, 552-553; Karch v. Stewart, Mo., 315 S.W.2d 131, 137 [6]; Kitchen v. Pratt, Mo.App., 324 S.W.2d 144, 148 [5]. See Richardson et al., Legal Excuse and Unavoidable Accident, 4 Mo. Bar C.L.E. Series, Sect. 12.7, pp. 168-72.

We set to one side the plaintiff’s contention that the point under discussion is not sufficiently preserved for review. The assignments made in defendant’s motion for new trial and specifically directed to Instruction 1 are that it "assumes matters not in evidence, and assumes controverted facts,” and that it “failed to hypothesize the necessary facts essential to plaintiff’s recovery.” We agree that in ordinary circumstances such assignments fall short of the particularity required by Rule 79.03, V.A.M.R., and would, in most cases, be insufficient. Ayres v. Keith, Mo., 355 S.W.2d, 914, 917 [1, 2], However, the rule pertaining to instructions which the defendant seeks to invoke is somewhat difficult to. express in substantive terms, and counsel has couched his assignments in the very language of the case upon which he relies principally in this court, Evans v. Colombo, supra, 319 S.W.2d at 552 [3], It is impossible to consider this appeal intelligently without considering the objections which are made to Instruction 1, and in the particular circumstances of this case, we consider that these assignments were sufficient. See Beezley v. Spiva, Mo., 313 S.W.2d 691, 695. In our opinion, the meritorious question on this appeal is whether Instruction 1 ignores the possibility of an accidental, or non-negligent, cause of the accident. A determination of this question calls for an examination of the evidence concerning the movements of the two vehicles just before the collision.

Neither of the two drivers appears to have had the other vehicle in sight at the time of the impact. Mr. Branch, plaintiff’s driver, was simply not sure, as the testimony shows, whether the collision occurred on or off the concrete slab. Mr. Branch was cross-examined at length about the position of the plaintiff’s automobile at the time of the collision, but could only say that the rear wheels “could have been two or three feet out into the highway or * * * two or three feet out into the Cooter road,” but he was “not positive just exactly the inches and everything as to where the car was.” Mr. Branch testified he did not actually see the defendant’s truck until after the collision, but stated that he had (by deposition) said “the truck jackknifed and hit me.” The plaintiff herself stated that her vehicle was struck “over in the Cooter intersection, plum off of the highway.” The defendant’s driver was unable to testify where the impact occurred because, in his words, “actually I didn’t see exactly what was going on because I was going backwards and the tractor was up against the trailer.”

Most of the evidence about the actual point of collision and the movements of the two vehicles immediately beforehand came from a highway patrolman called as a witness by the plaintiff. Much of his testimony seems to consist of conclusions based on his observation after he arrived on the scene 20 or 30 minutes after the accident.

At the time the trooper arrived, the Branch vehicle had been driven about 150 feet east on Route E — the Cooter road —and the tractor-trailer was sitting at an angle across Route E with the tractor in the north (westbound) lane, “actually pointing a little bit southeast,” and the “back of the trailer was generally in a southerly direction.” The trooper concluded the trailer had “come off of the highway in a jackknifed position and slid into her.” The only marks which he observed “was marks, tire marks, and skids off of the highway on the shoulder. In other words, it was in the mud.” Being asked to describe the damage done to the truck, the patrolman said there was damage to the right rear part of the tractor, which “came from the jackknifing,” since the “right rear had jackknifed up against the right side of the trailer at the time,” and described the only other damage to the truck as being found on the “left rear pull wheel” of the tractor, “around the drive axle.” The trooper summarized his observation and conclusions by answering affirmatively when asked if he meant to say that “the tractor transport had jackknifed and slid off of the highway to the right off of the shoulder on across and up into Pemiscot County Route E. * * * ” It is not disputed that it was dark, and was and had been raining at the time of the accident.

Without laboring the facts, we believe the plaintiff’s evidence shows something more than the mere overtaking and striking of her vehicle from the rear. It is true that much of the trooper’s testimony consisted of his conclusions and hearsay evidence, but such evidence may properly be considered when it is received without objection. Goodman v. Allen Cab Co., 360 Mo. 1094, 1100, 232 S.W.2d 535, 539 [4]; DeMoulin v. Roetheli, 354 Mo. 425, 434, 189 S.W.2d 562, 565 [3, 4]; Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42 [1], Beyond that, the testimony of the trooper was offered by the plaintiff and was not contradicted by any of her other witnesses, and therefore she is bound by his testimony. Craddock v. Greenberg Mercantile, Mo., 297 S.W.2d 541, 549 [13]; Kitchen v. Pratt, supra, 324 S.W.2d at 147-148 [3]; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144 [3].

If the plaintiff’s evidence in this case had established only a clear and simple situation of the defendant’s truck being driven for a considerable distance behind the Branch vehicle, then overtaking and colliding with it, we believe her submission would have been entirely proper. State ex rel. Spears v. McCullen, supra, 357 Mo. at 690-691, 210 S.W.2d at 70-71; see Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 269 [6]. In such case, an inference of negligence could be drawn from the facts. Doggendorf v. St. Louis Pub. Sv. Co., supra, 333 S.W.2d at 305 [1]; Hughes v. St. Louis Pub. Sv. Co., supra, 251 S.W.2d at 362 [3]. However, the plaintiff’s evidence shows that the reason for the collision was that the truck jackknifed and skidded or slid laterally into the automobile, which had been turned east onto the Cooter road. Neither the skidding alone nor lateral sliding in itself signifies negligence, although the cause of that movement may be negligence. Doyle v. Wilmesherrer, supra, 358 S.W.2d at 841 [7]; Evans v. Colombo, supra, 319 S.W.2d at 550-551 [1]; Karch v. Stewart, supra, 315 S.W.2d at 135-136. Of course, this case involves a “jackknifing” vehicle. It appears that a “jackknife” occurs when the trailer swings around and. travels ahead of the tractor, McBeth v. Merchants Motor Freight, 248 Iowa 320, 79 N.W.2d 303, 304; Anno., 68 A.L.R.2d 353, 355, § 1, although from this record the term also implies a partial folding of the tractor and trailer. But the fact that a jackknifing truck is involved, in our view, calls for the application of no singular rule of law. Anno., 68 A.L.R.2d 353, 355— 356. It seems clear to us that the sliding, skidding or lateral movement of a jackknifing truck creates no stronger inference of negligence than the skidding of some other type of vehicle. Merchants Motor Freight v. Downing, 8 Cir., 227 F.2d 247, 252-253; De Forest v. Soules, 278 Mich. 557, 270 N.W. 785, 786-787 [2, 3]; Durham v. McLean Trucking Co., 247 N.C. 204, 100 S.E.2d 348, 351 [3, 4], 68 A.L.R.2d 349, 353; Lee & Eastes, Inc. v. Continental Carriers, 44 Wash.2d 28, 265 P.2d 257, 260 [6]. In the case at hand, the plaintiff’s only verdict-directing instruction predicated a finding for the plaintiff upon the bare hypothesis that the defendant’s driver “ * * * allowed the tractor-trailer unit * * * to run into and collide with the rear end of the said Buick automobile * * * [and thereby] failed to exercise the highest degree of care. * * *” We conclude that the plaintiff’s verdict-directing instruction was erroneous, and preju-dicially so, for the following reason: the plaintiff’s evidence shows that her vehicle was struck because the defendant’s truck jackknifed and moved or slid laterally into her automobile, but plaintiff’s Instruction 1 completely excludes and forecloses the jury’s consideration of the elements of jackknifing and sliding, or lateral movement — circumstances which do not necessarily imply negligence, but from which the inference is merely ambiguous. Doyle v. Wilmesherrer, supra, 358 S.W.2d at 841; Evans v. Colombo, supra, 319 S.W.2d at 552-553.

The plaintiff forthrightly suggests that even if Instruction 1 is erroneous, we should ignore the error because the verdict was for the right party on the merits. While we are not convinced that the errors noted were not prejudicial, we do not wish to be understood as saying that plaintiff made no submissible case for the jury. We believe a jury might well find that the defendant’s driver was negligent in causing the truck to jackknife and slide or move laterally. We are merely saying that the plaintiff should have hypothesized “so much of the entire occurrence, fairly considered,” as caused the collision here. Evans v. Colombo, supra, 319 S.W.2d at 551-552. We do not undertake to define or limit the theories upon which a jury could have found the defendant’s driver to be negligent, but we believe the evidence shows more than a mere skidding as a cause of the accident. The other matters developed in the briefs are not likely to recur in the event of a retrial, and we do not consider it necessary to develop them here.

For error in the giving of Instruction No. 1, the judgment is reversed and the cause remanded.

RUARK, P. J., and STONE, J., concur.