author: ANDERSON, Judge.

text:
    Harry G. KINEALY, Plaintiff-Appellant, v. Marshall GOLDSTEIN and Koppel Furniture Company, Inc., a Corporation, Defendants-Respondents.
    No. 32056.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Koenig & Dietz, F. Daley Abels, Henry C. Stoll, St. Louis, for plaintiff-appellant.
    Heege & Heege, George F. Heege, Clayton, for defendants-respondents.
   ANDERSON, Judge.

Plaintiff, Harry G. Kinealy, sought in this action to recover $10,000 for personal injuries and property damages alleged to have resulted from a collision on Delmar Boulevard near its intersection with Academy Avenue, between plaintiff’s 1960 Chevrolet pickup truck and a motor vehicle operated by defendant, Marshall Gold-stein, alleged to be driving said vehicle at the time as agent and servant of defendant, Koppel Furniture Company, Inc. Upon trial, plaintiff’s case was submitted solely upon the alleged negligence of defendant Goldstein under the humanitarian doctrine in failing to warn, slacken the speed and swerve his motor vehicle after said defendant saw or by the exercise of the highest degree of care could have seen plaintiff in a position of peril. There was a ver-diet for defendant, and plaintiff has appealed from the judgment entered on said verdict.

Appellant contends that the trial court committed errors in instructing the jury. Respondents, in their brief, while denying all specific errors claimed, assert that plaintiff failed to make a case for the jury of the alleged negligence submitted. We will therefore make a full statement of the facts uncovered at the trial bearing on this issue, and in deciding the matter consider only that evidence and the inferences therefrom most favorable to plaintiff.

The collision in question occurred Monday morning, October 16, 1961, at approximately 8:20 a. m., on Delmar Boulevard near Academy Avenue. Plaintiff at the time was operating a 1961 Chevrolet pickup truck eastwardly on Delmar. He drove onto Delmar at Union Boulevard, which street was, according to his testimony, approximately four blocks west of Academy. He intended to turn left at Academy. Academy ends on the north side of Delmar. There are two sets of streetcar tracks in the center of Delmar, one for eastbound streetcars and one for those westbound. Between the rails of the track there is brick paving so that the area of the tracks can be and is used by automobile traffic. Midway between the two sets of tracks are two parallel white painted lines marking the center of the street. Delmar has, counting the area of the streetcar tracks, six traffic lanes. Adjacent to the streetcar tracks on Delmar there are what is referred to in the evidence as concrete safety zones near Academy, one on the east side of the intersection for use in connection with westbound streetcars and one on the west side for eastbound. According to plaintiff’s testimony the one on the west was about “a few feet” west of the intersection; the exact distance is nowhere shown. Plaintiff also testified that it was “right at the car tracks” with “very little” room between it and the nearest rail of the streetcar tracks. The exact distance between the concrete safety zone and said track is not shown, but from the photographs in evidence it appears to be two or three feet. This concrete structure is several feet high and cone shaped. The end facing east is flat and from there tapers toward the west where it comes to a point. The length of this structure is not shown. It appears from the photograph in evidence that there is an area east of this concrete structure, referred to as a pedestrian island which is obviously intended for use by persons waiting to board streetcars. West of the concrete structure, there are white painted lines which extend from each side of the concrete structure and meet forming a triangle. The length of this area is not shown. From the point of this area to the west is a painted white line. On the concrete structure there were, at the time, red and yellow blinking warning lights.

Plaintiff testified that as he proceeded east on Delmar, the left wheels of his truck were north of the south rail of the eastbound track and the right wheels south of said rail; that when he was approximately 100 feet from the pedestrian island, he looked into his rear-vision mirror and observed another vehicle quite a distance to his rear, then turned on his left turn blinker light, and proceeded; that when he was “maybe 50 feet” from the pedestrian island, he turned toward the north to straddle the eastbound track; that he had turned “not very far” when his truck was struck on the side; that the truck was thrown sideways and he was thrown about in the cab of the truck; that the rear end of his truck came to rest against the concrete abutment; that the truck that hit him came to rest facing north; that at the time of the impact both front wheels of his truck were in the eastbound streetcar tracks, and the truck was at a slight angle; that he looked at the truck that collided with him and observed that the whole front of it on the right side was completely wrecked; that the part of his (plaintiff’s) truck which was involved in the collision was the left side of the cab at the door and where the spare wheel and tire was attached to the truck behind the door; that the spare wheel and tire were all torn up.

Plaintiff further testified that the speed of his truck at the time he started to turn left was about 20 miles per hour; that thereafter, he reduced the speed to 15 miles per hour; that his speed at the time of impact was approximately 10 or 15 miles per hour. He explained that the reduction in speed was “because I had only 50 or 75 feet to go to see if I could make a left turn.”

Plaintiff offered no evidence as to where the truck driven by defendant, Goldstein, was at the time he turned toward his left or its speed at said time. Likewise, he offered no evidence as to how far he traveled after turning to the left before reducing his speed or how far he traveled after turning to the left before the collision occurred being content with the answer “not very far.” Nor was there any evidence by plaintiff as to how far his truck was pushed sideways by the force of the collision.

On cross-examination, plaintiff testified he did not know if the motor vehicle he saw to his rear at the time he turned on the left turn signal was the one being driven by defendant, Goldstein, or whether it was a car rather than a truck. Defendant, Goldstein, was driving an English Ford Truck called a Thames. Plaintiff stated he did not know if the motor vehicle he saw behind him was the one involved in the accident. He further stated he did not know how far behind him this vehicle was when he observed it; that he never saw the truck driven by defendant, Goldstein before the collision; neither did he know where said truck came from nor its speed and position in the street prior to the collision; that he knew his left turn signal was working on the dashboard, but did not know “if they were working outside; ” that he was going about 15 miles per hour when he was struck; that he would have run into the island had he not turned left; that part of his truck was over both rails of the eastbound streetcar track at the time of the collision, and his truck was at a slight angle. At this point, plaintiff’s attention was called to his deposition wherein he testified that no part of his truck was north of the north rail at the time of the collision, whereupon plaintiff changed his testimony stating that the account in the deposition was, “the way it happened.”

Plaintiff further testified that his truck was pushed against the curb of the island, meaning no doubt that it was pushed against the concrete structure. He further testified that he looked to the rear only once, and that was when he was about 100 feet from the island. He stated that lie was not aware of any westbound traffic as he was driving east, stating as a reason for his unawareness that “I had not approached Academy yet.”

Plaintiff offered certain questions and answers from a deposition of defendant Marshall Goldstein. By said answers said defendant testified that he lived at 8145 Blanca Drive, University City, Missouri, and was employed by defendant Koppel Furniture Company as a salesman; that at the time of the accident, he was coming from his home and was going to Koppel’s office location in downtown St. Louis at 815 Franklin Avenue; that he was president of the Koppel Company; that the weather on the occasion in question was dry and clear; that the traffic on Delmar was normal for that time (8:30 a. m.) ; that he “imagined” there was more eastbound traffic than westbound; that the collision was to the north of the island approximately at the streetcar tracks; that the impact took place 4 or 5 feet west of the island; that he had been traveling in the same traffic lane while driving in the 5100 block of Delmar, which was the lane of the streetcar tracks; that he would say the left side of his truck was approximately six inches north of the eastbound tracks; that he first saw plaintiff’s truck before the collision when it was about 10 feet from him; that he could not remember whether there were any cars to the right of plaintiff’s truck at the time; that his maximum speed in the 5100 block was 25 miles per hour, which, was about the speed of the other traffic; that the speed of plaintiff’s truck was about the same as his when he first saw it; that when both vehicles came to rest after the collision there was no space between them— they were definitely together; that the right front door of his truck was damaged, the glass in the windshield shattered and the front end of the right side caved in; that at the moment of impact his truck was completely to the right of the center of the street; that it was the collision which changed the direction of his automobile; that he did not remember if there were three lanes of traffic on this occasion; that when he said plaintiff’s truck was ten feet in front of him he meant that the rear end of plaintiff’s truck was approximately ten feet from the front of his vehicle; that there was no reason why he had not seen plaintiff’s truck before — he said, “I didn’t pay any attention to him”; the first time he had any reason to see plaintiff’s truck was when he observed plaintiff turn left about 4 feet from the island.

Norman Weston, a police officer, was called as a witness for plaintiff. He testified he investigated the accident in question. Using his report of the accident to refresh his memory, the witness testified the report showed the truck driven by defendant, Goldstein, was owned by defendant, Koppel Furniture Company; that in a police investigation such information is not acquired from an inspection of a car registration, but is as reported by those at the scene of the accident, which was the method used, in the instant case.

On cross-examination, he stated that his recollection, as refreshed by the police report, was that the accident occurred about 112 feet west of Academy; that plaintiff told him he was driving east on Delmar with one set of wheels in the streetcar tracks and the other on the asphalt pavement and, as he approached the concrete abutment, he saw defendant’s automobile in his rearvision mirror and thinking it far enough behind him he pulled out and as he did so was struck by someone. The witness further testified he did not recall plaintiff saying anything to him about giving directional signals; that the collision occurring 112 feet west of Academy would have been at the west end of the island as shown in the photograph in evidence; that plaintiff did not indicate whether he was going to turn left into Academy, or go straight through the intersection; that his report indicated that both vehicles were going straight ahead, and that plaintiff’s vehicle turned or swerved to avoid an object or pedestrian, and the Thames skidded after an application of its brakes.

On redirect examination, he testified he believed he measured the skid marks made by the Goldstein truck; that the length of the skid marks was not shown on his report, and he had no independent recollection of their length; that the only skid marks present were those made by the Goldstein truck.

On recross-examination, the officer stated he took a statement from defendant, Goldstein, in which the latter said he was driving east on Delmar in the center lane and plaintiff’s vehicle was alongside and in front of him; that plaintiff’s vehicle suddenly swerved to the left and he could not avoid hitting plaintiff’s truck.

Lawrence Neil Goldstein, son of defendant, Marshall Goldstein, was called as a witness for the defendants. He was a passenger in the truck driven by his father. He testified that the traffic on Delmar, at the time, was not light, but medium; that his father drove the truck in the lane of the eastbound streetcar rails, and to the left of the island; that as he approached the area of the island, he noticed a pickup truck headed for the island, swerve left in front of his father’s truck; that no signal was given by the pickup truck before it swerved; that the driver’s side of plaintiff’s truck and the right side, of the Thames came together; that when the pickup truck swerved, the Thames was only a matter of feet behind it, but witness was unable to say the exact distance; that he was not paying that close attention, “but just saw him swerve.”

On cross-examination, the witness testified that as the Thames was being driven eastwardly prior to the collision its left wheels were two or three feet from the white center line and between said center line and the north rail of the eastbound streetcar tracks; that most of the automobile traffic was eastbound; that he did not remember if there was westbound traffic ; that he did not remember if the Thames had passed any other automobile from Union Boulevard to the point of collision; that they were traveling at about the same speed as the traffic to the right; that he did not remember if there was traffic to their right all the way in said block; that he could not say accurately as to the speed of the Thames because he was not driving, but it was somewhere between 30 and 35 miles per hour; that he saw the pickup truck a few feet before the collision as it passed; that it was in front of them just before the collision; that just before the impact, he noticed plaintiff coming alongside of them; that he did not remember how far from the island that occurred, but it was, “not too far from the island” ; that he could not tell how far from Academy or the island they were when he first saw plaintiff; that he was unable to judge plaintiff’s speed immediately before the collision; that he really could not say whether plaintiff was going faster or slower; that he first noticed plaintiff as plaintiff came alongside and going ahead of them; that if plaintiff had continued the way he was going, he would have run into the abutment.

Defendant, Goldstein, testified that at the time of the accident, he was coming from his home and going to his place of business; that within a block from the place of collision, the traffic was normal for that time of morning; that the weather conditions were fair, and visibility good; that as he approached the area where the accident occurred, he was traveling about 25 or 30 miles per hour; that at the time in question, the left wheels of his truck were about one foot from the center line of the street, and the right wheel was inside the eastbound streetcar tracks; that there was traffic to his rear; that he did not change lanes from Union to the place of accident; that he did not believe there were any vehicles in front of him; that there was a pickup truck alongside of him, directly in line with the island, and that when it got to within six or ten feet of the abutment, it swerved to the left; that he applied the brakes as soon as he saw what was happening, but it was too late — his truck hit the pickup truck; that both vehicles were moving at the time of the impact; the distance between the rear of the pickup truck and the front of the Thames when the pickup truck moved to the left was at the most, ten feet; that the collision took place about 4 feet west of the island; that he did not recall seeing any skid marks at the scene of the accident; that he saw no signal from the pickup truck before it swerved; that if.the pickup truck had gone straight ahead, it would have hit the island; that at the time the pickup truck turned left, he (Goldstein) was traveling somewhere around 25 miles per hour; that the Thames was facing east after the accident; and the pickup truck was facing toward the north; that when the pickup truck was ahead or alongside of him, it was directly in line with the island and its left wheels were south of the south rail of the streetcar tracks; that the right front door of the Thames came in contact with the left door and a small portion back of the door of the pickup truck.

On cross-examination, defendant, Gold-stein, testified there was traffic to his right as he traveled in the block where the collision occurred; that. he did not recall sounding his horn prior to the accident, or swerve, but did apply his brakes before the collision; that the brakes took effect before the collision; that he was about a car length behind the other car when he applied his brakes; that the average car length was» anywhere from 15 to 30 feet; that as far as he could recall it may have been less than IS to 30 feet behind the other vehicle when the brakes took effect; that the other car was 15 to 30 feet or less forward when he applied the brakes, whatever the average car length is; that he recalled seeing plaintiff heading for the island and he started applying his brakes for some reason, he did not recall; that plaintiff was where the white markers come to a junction to form a “Y” at the time he applied the brakes; that when plaintiff got approximately to that point, plaintiff swerved ; that when plaintiff was in that vicinity, he was approximately a car length behind plaintiff, and plaintiff swerved at which time he first became aware that plaintiff was headed for the abutment; that prior to that time he saw plaintiff in the street in front of him, and off to the right; that before swerving, plaintiff made no unusual movement to attract his attention; that plaintiff could possibly have gone to the right; that he did not remember if there was traffic to the right; that he did not remember if there was any westbound traffic at that time; that plaintiff’s speed at that time was about the same as his; that he did not reduce the speed of his car before the impact because there wasn’t time to do so; that he did not know if his car skidded; that the actual impact was about at the point of the island; that the distance he traveled from the time he applied his brakes until the impact was the distance he was behind plaintiff’s truck; that plaintiff was moving, but he did not recall if he stopped; that plaintiff did not reduce his speed, unless plaintiff jammed on his brakes; that he did not recall seeing anything like that; that plaintiff was at an angle when he struck plaintiff; that the fact that plaintiff’s truck was heavier than his was the reason his truck stopped; that plaintiff’s truck was standing crossways of the streetcar tracks when it came to rest with its rear end close to the concrete abutment; that plaintiff’s truck was cleár across the streetcar tracks; that his position with reference to the center line was approximately the same as it had been before the collision; that he did not recall having driven to the left at all; that he did not think that he knocked plaintiff’s vehicle forward by the impact or knock around the rear end; that plaintiff must have been crosswise of the street before the impact, very close to a ninety degree angle;, that the collision was somewhat of a sideswipe as well as a direct collision; that plaintiff’s truck actually hit his truck at the right front corner and the side of the door.

The first and basic fact in the imposition of liability under the humanitarian doctrine is the position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. Such peril must be certain, immediate and impending. It must not be remote, uncertain or contingent; and a mere likelihood or bare possibility of injury is not sufficient' to create imminent peril. Wilson v. Toliver, 365 Mo. 640, 285 S.W. 2d 575.

It is only when such peril arises that the humanitarian doctrine imposes the duty to thereafter exercise the highest degree of care to avoid injury and this without regard to antecedent negligence. Ornder v. Childers, Mo., 327 S.W.2d 913; Downing v. Dixon, Mo.App., 314 S.W.2d 927.

One is chargeable with notice that another is in peril, as that term is defined by the authorities, and with a duty to act only when the reasonable appearances indicate said basic fact. Faught v. Washam, Mo., 329 S.W.2d 588; Wilson v. Toliver, Mo., 305 S.W.2d 423.

For that reason, the position of imminent peril must be determined from the facts and circumstances in each particular case. Such position may be proved by circumstantial evidence considered in the light most favorable to plaintiff’s case. Hendrick v. Kurn, 352 Mo. 848, 179 S. W.2d 717, and is a jury question but only if there is evidentiary basis from which a jury could reasonably make such finding, Paydon v. Globus, Mo.App., 255 S.W.2d 61; Affirmed, 262 S.W.2d 601. Schmitt-zehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918.

What we have said applies to the other necessary elements of a humanitarian case, and in that connection, there must be borne in mind the rule that the humanitarian doctrine does not require a defendant to save plaintiff at the expense of himself and others. Pennington v. Carper, Mo., 309 S.W.2d 596.

Also if the defendant lacks the time to avert the accident, or if there is insufficient distance available to avoid harm to plaintiff with the means at hand, after the latter’s position of peril arises, the defendant may not be subjected to liability. Paydon v. Globus, Mo.App., 255 S.W.2d 61; Affirmed, 262 S.W.2d 601.

The zone of peril in this case, and the duty of defendant, Goldstein, under the humanitarian doctrine, could only arise when he saw or by the exercise of the highest degree of care should have seen that plaintiff was oblivious of the approach of defendant’s truck and exhibited an intent to enter the path of defendant’s truck at a time when to do so was dangerous. Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918; Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540, or if there were no reasonable appearances of obliviousness, then plaintiff came into a position of peril when he was actually in the path of defendant’s truck or so close to it that it was apparent that he would or could not stop before reaching it. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. In the case at bar, plaintiff, while traveling to the right of the path of defendant’s truck, gave no indication that he intended to swerve into defendant’s lane prior to the time he actually began the turning movement.

Although plaintiff had turned on his left turn light when 100 feet from the pedestrian island, he had traveled 50 feet thereafter before turning left. During that period, he traveled at a rate of -speed much slower than that, of defendant, Goldstein. It would, therefore, seem that the reasonable appearances would lead one to believe that plaintiff intended to permit Gold-stein to pass before turning. Goldstein had the right to act upon reasonable appearances. It was not incumbent on him to speculate that plaintiff would disregard the rules of safety and place himself in a position ■ of danger of being struck by the faster moving vehicle in the lane to his left. Under the facts and circumstances, one placed in Goldstein’s position, would have the right to assume that plaintiff would not do so, and that the safest thing to do was to continue forward with undiminished speed in order to facilitate the passing. There was no evidentiary basis for finding the position of peril that arose prior to the time plaintiff began his turn to the left, which under the most favorable evidence was 50 feet from the pedestrian island and 46 feet from the place where the collision occurred. It was when plaintiff started to turn left that Goldstein’s duties under the humanitarian doctrine arose. Any failure to warn or take affirmative action prior thereto can only be classified as primary negligence not to be considered in ascertaining if plaintiff made a case under the humanitarian doctrine.

Plaintiff, in his brief, attempts to locate the Goldstein truck at 96 feet from the point of impact at the time plaintiff came into a position of peril. There is no basis in the evidence for such a finding.

The only evidence in the case as to where the Goldstein truck was at the time plaintiff started his left turn was given by the defendant, Goldstein. He first testified that the distance between the rear of the pickup truck and the front of the Thames he was driving was 10 feet at the time plaintiff moved to the left, and that he applied the brakes on his truck as soon as he saw what was happening. On cross-examination, he testified that his truck was about a car length behind plaintiff’s truck when he applied the brakes and that the average car length was anywhere from IS to 30 feet. Plaintiff was entitled to the benefit of Goldstein’s testimony in fixing the position of the Thames truck at the time he entered the position of peril and taking that testimony in its most favorable aspect to plaintiff’s case, we will disregard his estimate of a car’s length and take it that Goldstein meant to say on cross-examination that he was thirty feet from plaintiff’s truck when the latter made his turn to the left. This would put Goldstein 76 feet from the point of collision.

If the Goldstein truck was traveling 30 miles per hour, it was covering roughly 44 feet a second. Considering three-fourths of a second for reaction time, the Goldstein truck traveled 33 feet before the brakes could take effect leaving a distance of 43 feet for the brakes to reduce its forward motion to the extent that no collision would have occurred. But there was no evidence of the time and space that would have been required for this to occur.

We cannot take judicial notice of the time or distance a motor vehicle can be slackened to avoid an object in its path. To bring a moving vehicle to a stop or to slacken its speed, its energy must be used up or reduced by friction. It is a matter for expert testimony based upon many factors, such as speed, the size and weight of the vehicle, its load, the condition of the brakes, the condition of the road and its gripping efficiency which depends in a great measure upon its composition. One made familiar with all these conditions and who has had experience in stopping and reducing the speed of motor vehicles of the kind in question under the conditions shown to exist is qualified to render an expert opinion on the subject. Usually the owner and operator who is familiar with the vehicle and has driven it under the conditions shown is qualified to supply this opinion. Without such testimony, except in rare instances not here present, a humanitarian case cannot be made on failure to slacken as was attempted in this case. Plaintiff’s case on alleged failure to slacken was not made. In the absence of such evidence, a verdict for plaintiff would necessarily be based on speculation and conjecture. See Steuernagel v. St. Louis Public Service Co., Mo.App., 202 S.W.2d 516; Affirmed by Supreme Court in 357 Mo. 904, 211 S.W.2d 696.

Plaintiff also failed to make a humanitarian case of failure to warn. When plaintiff entered a position of peril, the front end of Goldstein’s truck was 76 feet from the point of collision. If Goldstein was traveling 25 miles per hour, he was going roughly 38 feet a second. If his speed was 30 miles per hour, he was traveling roughly 44 feet per second. He was therefore two seconds or less in point of time from the point of impact when plaintiff entered a position of peril. Allowing defendant three-fourths of a second reaction time to realize plaintiff’s dangerous situation and to sound a warning, and allowing plaintiff three-fourths of a second to respond thereto, there would remain only one-half second or less for the means plaintiff might employ to operate to avoid the collision. Only by dissecting a second of time into fractions and by speculation and conjecture could a jury find that the injury could have been avoided by a warning. This is especially true since this was not an “almost escaping” case. See Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33.

Plaintiff also failed to make out a humanitarian case on failure to swerve. In order to make such a case, it was incumbent on plaintiff to show that Goldstein could have swerved without injury to himself or his passenger. Plaintiff failed to do this by showing that the traffic lanes to Goldstein’s right or those to his left were free from traffic in a space where Gold-stein could have swerved into to avoid the collision without danger of collision with other vehicles. In appellant’s brief, it is stated that the evidence shows there was no westbound traffic; nor eastbound traffic in the lane immediately next to him. This is a misstatement. The evidence does not so show. Plaintiff failed to make a case of failure to swerve.

Our conclusion is that plaintiff failed to make a case on the issues submitted. For that reason, it will not be necessary to rule the other points urged.

The judgment is affirmed.

WOLFE, P. J., and RUDDY, J., concur.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Carroll GUMM and Grace Gumm, Plaintiffs-Respondents, v. Michael Day HERMAN, Defendant-Appellant.
    No. 8448.
    Springfield Court of Appeals. Missouri.
    Feb. 22, 1966.

      Tweedie Fisher, Jefferson City, for defendant-appellant.
    Morgan M. Moulder, Camdenton, for plaintiffs-respondents.
   STONE, Presiding Judge.

In this jury-tried action for the alleged wrongful death of their unmarried daughter, Loma Lee Gumm, then 16 years of age, when struck by a 1959 Oldsmobile sedan driven by defendant Michael Day Herman, plaintiffs Carroll Gumm and Grace Gumm obtained a judgment for $10,000 against Herman. He appeals.

The accident happened about 4:30 P.M. on Sunday, July 5, 1964, a clear, dry day, on Missouri State Highway No. 7 about 3.4 miles south of Montreal in Camden County, Missouri. At and near the point of acci-cident, Highway 7 has a two-lane blacktop roadway approximately 21 feet in width and, as one of plaintiffs’ witnesses aptly described it, “is just made up of curves and dips.” The tragedy under discussion occurred at the bottom of a hollow between two hills.

Kenneth Jeffries, 20 years of age, had been northbound on Highway 7 in his 1958 Chevrolet convertible with the top down and with four girls as passengers, namely, Loma Lee Gumm who was riding in the front seat with him, and Joyce Webster, 15 years of age, her invalid sister Judy Webster, and Linda Hanks, who were riding in the back seat. Earlier in the afternoon, Jeffries and his passengers had driven to Richland and thereafter all of them, except Judy Webster, had gone swimming in Seller’s Creek. As Jeffries was proceeding north on' Highway 7, he met a southbound 1957 Chevrolet convertible with the top down which was being driven by Robert Webster, 18 years of age, a brother of Joyce and Judy Webster, who (as Joyce said) “was coming to get us.” So, Jeffries and Webster brought their vehicles to a stop “about straight across from” or “even” with each other. Plaintiffs’ evidence was that Jeffries parked his northbound automobile “about half off on the [east] shoulder to the right and half of it on the [blacktop] highway” and that Webster stopped his southbound automobile entirely on the blacktop with its right wheels “possibly six or seven inches” from the west edge thereof. By measurement at the scene of accident on the Sunday before trial, Jeffries concluded that the distance between the two automobiles, as they had stopped opposite each other on the date of accident, had been 11 feet. Upon trial, Webster’s estimate of that intervening distance between the automobiles was “approximately 10 or 11 foot.” “A few seconds” after the automobiles had stopped, Joyce Webster “went over the [right] side” of the Jeffries automobile and “went around the front” of it to the left door, for the purpose of assisting her invalid sister, Judy, in transferring from the Jeffries automobile to the Webster automobile. And, although all occupants of the two automobiles who appeared as witnesses professed complete ignorance as to when or how Loma Lee Gumm alighted from the front seat of the Jeffries automobile and reached the point where she was struck, the fact of the tragedy itself leaves no room for doubt but that she did alight therefrom and did move across the blacktop roadway to the west shoulder.

With the stage thus set for disaster, it was not long in striking. After the two automobiles had been standing for “about 25 or 30 seconds,” the southbound 1959 Oldsmobile sedan driven by defendant Herman came over the crest of the hill to the north, Herman, then 23 years of age, in military service and stationed at Fort Leonard Wood, was returning from a weekend visit at the home of his parents near Boone, Iowa. Two young men also stationed at Fort Leonard Wood, who lived in Iowa and had made the weekend trip with Herman, were riding as passengers in the Oldsmobile.

Plaintiff’s witnesses testified to the following state of facts. The sight distance from the Jeffries and Webster automobiles to the crest of the relatively steep hill north of those standing vehicles was estimated by the investigating trooper at 375 to 400 feet and by other witnesses at 400 to 425 feet. As defendant’s southbound Oldsmobile came over the crest of the hill, it was traveling “about” 90 to 95 miles per hour. At that time, Joyce Webster, the 15-year old passenger who had alighted from the Jef-fries automobile, was standing either between the two automobiles and “right up against” the driver’s or left door of the Jeffries convertible (as both Jeffries and Robert Webster testified) or behind that vehicle at a point to which she had run when she had heard defendant’s approaching southbound Oldsmobile (as she testified).

Almost immediately after the southbound Oldsmobile came into view, defendant applied the brakes, the tires commenced to “squeal” and “scream” on the blacktop, and the rear end of the automobile began to skid or slide “back and forth” or (to borrow the graphic nomenclature of plaintiffs’ counsel) it “fishtailed.” About halfway down the hill (as evidenced by the skidmarks) the rear end of the Oldsmobile swung onto defendant’s right-hand (i. e., the west) shoulder of the highway and continued moving in a counter-clockwise direction so that, as the entire automobile skidded downgrade, “the back wheels got farther away from the front wheels” and closer to the sharp embankment at the west edge of the shoulder. By the time the Oldsmobile reached the rear end of the Webster convertible which, in the meantime, had begun to move forward (toward the south) slowly but had traveled no more than one car length, the Oldsmobile was “approximately crosswise.” The left inside headlight on the Oldsmobile struck the right rear fender of the Webster automobile and, about the same time, the right front door of the Oldsmobile (skidding sidewise) struck Lorna Lee Gumm, then standing on the west shoulder near the right rear portion of the Webster automobile, and the rear end of the Oldsmobile dropped off the edge of the west shoulder. Carrying Lorna with it, the Oldsmobile went down the west embankment and came to a stop some 90 feet from the point of impact, headed back toward the north or northeast. Lorna was dead by the time an ambulance and physician arrived.

The shoulders of the highway at the point of accident were covered with vegetation. Robert Webster, the only witness on this point, estimated the width of each shoulder at nine feet. On cross-examination, Webster quickly admitted that he knew that he should not have parked on the traveled roadway, and Jeffries grudgingly “guessed” that he knew the same thing. Plaintiffs originally sued Webster and Jef-fries as well as Herman, but on December 8, 1964, the day before the case went to trial, they dismissed without prejudice as to the first two. This, for the reason (so plaintiffs’ counsel emphatically told the jury in his final argument) that, when the depositions of those defendants had been taken, “it was revealed * * * that they had 11 feet remaining between their automobiles, that there was a distance for almost two automobiles to pass between them.”

Defendant Herman testified that, as he crested the hill, he was driving 58 to 60 miles per hour; that he immediately “saw two cars blocking the road and some people standing around them”; that, although he could not definitely “place” any of those persons except one “standing on the road between the two cars,” nobody was, at that time, on his right-hand (i. e., the west) shoulder; that, since he could not have driven his Oldsmobile between the two automobiles blocking the road, he “put on the brakes and tried to get off on the [west] shoulder of the road hoping that I could go around on the right on the shoulder” — “trying to avoid everything in front of me”; and that “I had already applied the brakes and had tried to get my car over on the shoulder before I ever saw this girl [Lorna] run out in front of me.” After the brakes had been applied, he “felt the car start to slide” and, when the rear end went onto the shoulder, the Oldsmobile “was half turned broadside” and went out of control. As to his automobile having skidded on the blacktop, Herman suggested that “it was a warm day and new blacktop * * * sweats and it * * * could very easily have been somewhat slick from the oil or from the bits of oil on it.”

No question is raised as to the submissi-bility of plaintiffs’ cause of action but we have included considerable evidentiary detail to show the factual backdrop against which the case was given to the jury. On this appeal, defendant’s primary thrust is against instruction 2, the only verdict-directing instruction given at plaintiffs’ request. Mindful that this case was tried in December 1964 under our former instruction practice and convinced that quotation of instruction 2 in its entirety is unnecessary to proper understanding of our subsequent discussion and would contribute nothing to legal literature or learning, we do not expand this opinion by such quotation of this instruction which covers more than two full pages in the transcript. Without criticism of or reflection upon plaintiffs’ capable counsel, we observe in passing that instruction 2, under our former practice not unusual in its length or complexity, provides an excellent example of the perplexing problems which finally drove the bench and bar to MAI.

Substantially simplified and considerably condensed, instruction 2 told the jury, in essence, that if they found (a) that Lorna “was standing on the west shoulder at the bottom of a hill or dip in and of Highway 7 * * * and exercising ordinary care for her own safety,” (b) that defendant Herman was southbound on the west side of the blacktop pavement, 21 feet in width, (c) that, until he reached the crest of the hill, he could not have seen the point of accident approximately 400 feet distant therefrom, (d) that “under the said circumstances immediately preceding and at the time of the collision” defendant drove his automobile at a speed of 90 to 100 miles per hour, (e) that “it was negligent” for defendant so to drive “at 90 to 100 miles per hour under the circumstances mentioned and then and there existing,’’ (i) that defendant “then and there negligently failed to have said Oldsmobile under such control that he could readily and reasonably stop in time to avoid striking Lorna,” (g) that “such rate of speed and lack of control of defendant’s Oldsmobile automobile under the circumstances shown in the evidence constituted negligence on the part of the defendant,” and (h) that “as a proximate result of said negligence the Oldsmobile automobile swerved into collision and struck Lorna Lee Gumm and was the proximate cause of her death,” then the verdict should be for plaintiffs unless the jury found that Lorna had been guilty of contributory negligence (in moving into the path of the Oldsmobile) as submitted in instruction 12. (All emphasis herein is ours.)

No less than eleven assignments of error in defendant’s motion for new trial and five points or subpoints in his appellate brief, followed by fifteen pages of argument, are directed to alleged infirmities and errors in instruction 2. Out of this motley melange of charges, the patently meritorious and determinative complaint gleaned from defendant’s brief, although imperfectly presented and developed, is that instruction 2 was confusing and granted “a roving commission” to the jury, particularly so in view of the inadequate hypothesization of disputed and material issues of fact.

By instruction 2, plaintiffs submitted their case on two assignments of negligence, both of which had been pleaded in their petition, to wit, (1) defendant’s excessive rate of speed and (2) his “lack of control” of his automobile. Of course, ex cessive speed was a charge of specific negligence ; but, as stated in cases here cited by defendant [Annin v. Jackson, 340 Mo. 331, 338, 100 S.W.2d 872, 875; Rosenkoetter v. Fleer, Mo., 155 S.W.2d 157, 160(3)] and in numerous other instances [e. g., State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, 423(1); Thompson v. Gipson, Mo., 277 S.W.2d 527, 531; Coit v. Bentz, Mo., 348 S.W.2d 941, 945, 946], lack of control was a charge of general negligence. It has long been the rule that a case may not be submitted upon both general and specific negligence. State ex rel. Burger v. Trim-ble, supra, 331 Mo. at 753, 55 S.W.2d at 424 (3) ; Thompson, supra, 277 S.W.2d at 531 (5, 6); Ficken v. Hopkins, Mo., 389 S.W.2d 193, 200(14); Harris v. Mound City Yellow Cab Co., Mo.App., 367 S.W.2d 43, 51 (4) ; Watson v. Long, Mo.App., 221 S.W.2d 967, 969(1).

In Bouchillon v. Weisbrod, Mo. App., 399 S.W.2d 638, we recently had occasion to plod down the furrows plowed by our Supreme Court in this legal field. As we there pointed out per Ruark, J., the controlling holdings are that a submission on loss or lack of control is a submission on general negligence and, except in res ipsa loquitur cases, is confusing and constitutes a roving commission to the jury. Miles v. Gaddy, Mo. (banc), 357 S.W.2d 897, 900; Treon v. City of Hamilton, Mo., 363 .S.W.2d 704, 709; Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 269(7). See May v. Bradford, Mo., 348 S.W.2d 133, 136; Coit, supra, 348 S.W.2d at 946; Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 856. And the conjunctive submission of acts of specific and general negligence (as, in the instant case, submission of excessive speed and lack of control) does not render the error harmless because the submission of lack of control is “not a correct statement of either statutory or case law and its inclusion renders the instruction prejudicially erroneous.” Miles, supra, 357 S.W.2d at 901(3); Bouchillon, supra, 399 S.W.2d at 639. See also Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, 792, 794(4); Charles F. Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522, 536 (17); Donaldson v. Manzella, Mo., 338 S.W.2d 78, 83(3) ; Glowacki v. Holste, Mo., 295 S.W.2d 135, 140 (4) -

In the course of his earnest endeavor to answer the shotgun attack of opposing counsel on instruction 2, plaintiffs’ attorney points out that defendant “admitted that he lost control of his car,” quotes an isolated statement out of context from Hinds v. Kircher, Mo., 379 S.W.2d 607, 610, and cites our opinion in Cluck v. Snodgrass, Mo. App., 381 S.W.2d 544. In the same section of his argument, plaintiffs’ attorney insists (mistakenly, so we think) that “the position, location and distance between the Webster and Jeffries cars when parked on the highway was not in dispute,” apparently maintaining on appeal, as he did in the trial court, that there was a clear space of 11 feet between those standing automobiles and that defendant could have passed between them safely and without difficulty.

In all of this, counsel overlooks defendant’s testimony that, when he crested the hill, he “saw two cars blocking the road and some people standing around them,” and the further question put to defendant, without objection, as to whether “at that time could you have operated your car between those two cars” and his answer, “no, I couldn’t.” It is true that defendant agreed on cross-examination that he had lost control of the Oldsmobile prior to striking Lorna. But that loss of control was after he had applied his brakes and “tried to get off on the [west] shoulder of the road hoping that I could go around on the right on the shoulder” — .“trying to avoid everything in front of me,” and at the time the rear end of his automobile went onto the west shoulder and the vehicle “half turned broadside.” When this occurred and defendant lost control of his automobile, it was halfway down the hill, as plaintiffs’ evidence concerning the skidmarks showed. Furthermore, the evidence in its entirety fairly would have permitted, although certainly not compelled, findings that defendant’s effort to turn onto the west shoulder at least had contributed to cause his loss of control of the Oldsmobile and that such effort to turn had been motivated by a justifiable belief, reásonably reached on the situation confronting him when he had crested the hill, that the blacktop roadway was blocked. In the particular circumstances of this case, the failure of instruction 2 to hypothesize any facts bearing upon the disputed issue as to whether the blacktop roadway was blocked, was calculated to add to the confusion caused, and to confirm the roving commission conferred, by the naked general submission of “lack of control.”

Neither case cited by plaintiffs in this connection is controlling or persuasive. In Hinds, supra, 379 S.W.2d at 609, defendant’s contributory negligence instruction being reviewed upon plaintiff’s appeal from an adverse judgment was “based on plaintiff’s excessive speed” and did not include a general submission of loss or lack of control. In the peculiar circumstances of Cluck, supra, 381 S.W.2d 549, we found that “loss of control” had been hypothesized in the criticized instruction “merely as a factual element of the plaintiff’s submission, not as a specification of negligence.” The language and structure of instant plaintiffs’ instruction 2, as well as the facts of the case, do not permit a similar conclusion here.

Although the author of the landmark opinion in Annin, supra, opined that “[i]t may be possible that situations may arise where the terms control, or management, embrace but a single matter of fact and may of themselves be fully descriptive of the same” [340 Mo. at 340, 100 S.W.2d at 876], more than 23 years later another discerning jurist observed in Myers v. Buchanan, Mo., 333 S.W.2d 18, 21, that “the proper case for such a submission [on loss or lack of control] has not yet appeared.” That commentary may be repeated here as our former instruction practice phases out. On the authorities hereinbefore cited, we are driven to the conclusion that plaintiffs’ instruction 2 was reversibly erroneous.

Since the case will be retried under our present simplified instruction practice, we do not extend this opinion by detailing and discussing the numerous other objections to instruction 2 and also those directed to instruction 4, plaintiffs’ measure of damages instruction.

The judgment for plaintiffs is set aside and the case is remanded for retrial.

RUARK and HOGAN, JJ., concur.

      . Under our present practice, there is no “MAI approved submission” on failure or lack of control [Evans v. Landolt, Mo., 389 S.W.2d 15, 19] and “[t]he practice of submitting dual or multiple theories of recovery or defense in the conjunctive is prohibited.” MAI § 1.02.


author: WOLFE, Presiding Judge.

text:
    Julius BRANDT, Employee, Plaintiff-Appellant, v. E. O. DORSCH ELECTRIC COMPANY, Employer, and Consolidated Underwriters, Insurer, Defendants-Respondents.
    No. 31969.
    St. Louis Court of Appeals. Missouri.
    Jan. 18. 1966.
    Rehearing Denied Feb. 18, 1966.
    Application to Transfer Denied April 11, 1966.

      James K. Cook, Schuchat, Cook & Wer-ner, St. Louis, for plaintiff-appellant.
    Edward W. Warner, Evans & Dixon, St. Louis, for defendants-respondents.
   WOLFE, Presiding Judge.

This is an appeal from a judgment of the Circuit Court affirming a final award of the Industrial Commission of Missouri. The final award of the Commission denied compensation to the appellant employee.

The appellant filed a claim for compensation before the Division of Workmen’s Compensation in which he stated:

“Employee was hanging fluorescent light fixtures. Employee was working on the top of a scaffold the top of which was at such a distance from the ceiling of the room and the air ducts that employee could not stand up straight on the scaffold. Employee, standing in an awkward, unbalanced position, was pulling up from the ground a fluorescent fixture by means of a rope. When the fixture was about half way between the ground and the top of the scaffold, as a result of the unusual strain of pulling up the fixture in this posture, the employee felt a sharp pain in his back.”

The employer filed an answer in which the allegations of the claim were generally denied.

It was admitted upon the hearing before the referee that E. O. Dorsch Electric Company was an employer under the Missouri Workmen’s Compensation Law and that their liability thereunder was insured by the Consolidated Underwriters. It was also admitted that the claimant was an employee on the date of the alleged accident and that he worked at an average weekly wage of $75.00. It was also admitted that the employer had notice of the alleged injury and that the claim was filed within the time prescribed by law.

Upon trial before the referee the employer admitted that the employee was unable to work for ten weeks and that it had paid him $450.00 for the ten weeks. It had also furnished medical treatment at a cost of $1,343.34. The above stated admissions left but four issues for the referee to try. These were whether or not the employee sustained an accident within the meaning of the Workmen’s Compensation Law; the nature and extent of the temporary total disability; the nature and extent of the permanent partial disability, if there was any; and whether or not the claimant was entitled to reimbursement for certain medical expenses he was alleged to have incurred.

The referee made an award of $45.00 per week for ten weeks for healing period and an award of $40.00 per week for forty weeks for permanent partial disability, subject to a credit of $450.00 paid by the employer. The referee’s finding of fact was as follows:

“I find from the evidence that Julius Brandt sustained an accident arising out of and in the course of his employment with E. O. Dorsch Electric Company on the 17th day of July, 1961 in the City of St. Louis, Missouri, in that the employee suffered an abnormal strain when he was required to lift a fluorescent light fixture weighing 10 to 15 pounds while in an unusual position. Said lifting being done in a manner beyond and different fom his normal routine.
“I further find from the evidence that said accident resulted in temporary total disability from the 18th day of July, 1961 through and including July 23, 1961, and again from the 28th day of July, 1961 through and including September 29, 1961, a period of 10 weeks, for which he is entitled to a healing period of 10 weeks.
“I further find that said accident resulted in 10 per cent permanent partial disability of the body as a whole referable to the low back.
“I also find that the treatment performed by Dr. Martin G. Austin and Dr. David F. Mendelson being performed after October 17, 1961 and for which employee made claim was furnished or incurred by employee more than 90 days after the date of his accidental injury and without a special order of the Commission; that, therefore, the employer and insurer are not liable for the same.”

There was an appeal by both the claimant and the employer to the Division of Workmen’s Compensation and the Commission reversed the referee and made the following finding:

“We find from all of the evidence that the employee, Julius Brandt, did not sustain an accident or abnormal or unusual strain on or about July 17, 1961, within the meaning of the Missouri Workmen’s Compensation Law, as alleged. We further find and believe that there was no unexpected or unforeseen event happening suddenly and violently as required by our statute. The injury in and of itself is not an accident.
“Compensation, therefore, must be and the same is hereby denied.”

It is contended here that the Commission erred in concluding that Brandt, employee, did not sustain an abnormal or unusual strain. The only evidence which the claimant introduced in support of his claim that he suffered an accident or abnormal strain was his own testimony relating to it.

He was 48 years of age and had been an electrician for many years prior to the time he was engaged in working for the E. O. Dorsch Electric Company as a “construction electrician.” He had been regularly working as an electrician in new construction. He had been working on the installation of fluorescent light fixtures in the Federal Record Center for about three months. On July 17, 1961 he was installing such fixtures in the basement of the building. He was not definite as to the length of time that he had been so engaged, but it could have been three weeks, and he had installed about one hundred fixtures.

He worked from a scaffold made of metal tubing which supported the scaffold platform on which he worked. The dimensions of the platform and the horizontal plane of the framework of the scaffold were six by four feet. The platform was fifteen feet from the ground. The vertical metal tubes of the supporting frame were held together and in place by cross tubes that formed an X shape. Above the scaffold ’platform on the side measuring four feet there was a guard rail and on the side measuring six feet there was a brace of tubing in the shape of an X with the crossed tubes extending from each corner of the platform to the top of the guard rail on the opposite ends.

The work in which Brandt was engaged was only that of hanging fluorescent light fixtures. The wire and the part to which the fixtures were attached had been previously installed. He said that his work consisted of lowering a rope to a helper standing on the floor by the scaffold, and the helper would then attach a fixture to the end of the rope. Brandt would pull the fixture up to the platform. After it was on the platform he disengaged the rope and proceeded to install the fixture. He said that the scaffold was higher than it should have been and that he could not stand up straight. He said that he assumed a “straddle legged” position and pulled the rope hand over hand until the fixture was up to the center of the X formed by the tube supports above the platform. He then lifted the fixture on to the platform through the V formed by the top of the X brace. At another point he stated he stood with his feet together.

The place where the occurrence here under consideration happened was a part of the basement where some overhead duct work had been installed. The duct near the place where the claimant was working ran along the ceiling parallel to and on the outside of the scaffold and about six inches from it. The duct work was too low to permit him to lift the fixture through the V formed by the top of the X brace, so he was obliged to pull the fixture through the inverted V formed by the bottom of the X in order to get the fixture on to the platform. He said that he stood with his hands out in front of him over the edge of the scaffold, his right foot in front of him and his left foot behind him, in a crouched position so that he would be able to pull the fixture through the lower part of the tubing. It was a more awkward position than he had previously used. In a statement given to the adjuster by the insurer he stated that he was standing straddle legged, but he said upon interrogation that he thought this meant with his feet apart in any fashion. The fixtures weighed ten or fifteen pounds. He had installed three in this area in the manner described, and he was lifting the fourth one up to the platform. When it was about seven and a half feet from the floor he felt a' sharp pain in his back. He lifted it the rest of the way and installed it.

He said that he did no more work that day and that his legs and back were getting stiff when he went to his doctor that evening. He was off from work “three or four days or maybe a week.” He then returned to work. He was transferred to a job at the Fisher Body Company. It was easy work, but he could not stand on his feet because his legs and back were stiff. He went back to his doctor who put him in a hospital twelve days after the occurrence of the alleged injury. He stated that he lost a total of nineteen weeks work.

The claimant’s physician testified that claimant was suffering from a ruptured in-tervertebral disc and had a permanent partial disability which he placed at twenty per cent of the man as a whole. This witness also testified that his diagnosis of herniated intervertebral disc had been conclusive throughout the claimant’s entire stay in the hospital. He had, however, signed a report on December 1 in which he stated: “* * * ‘his symptom complex and physical findings do not go along with the diagnosis of a ruptured disc * * a jn answer to a hypothetical question he stated that in his opinion the herniated disc could have been caused by the described lifting of the light fixture. A physician who examined the claimant for the employer said that claimant had a soft tissue back strain caused by normal wear and tear on the back and he placed the disability at five per cent of the man as a whole.

It is first contended by the appellant that the case must be remanded to the Commission for a finding of fact because the Commission failed to make a finding of fact as required by statute. The award asserts that the claimant did not sustain an unusual strain as alleged. A reference to the allegations, negated by the finding of facts, makes the finding of facts quite adequate. The issue is a simple one. Finding of the ultimate facts are all that is necessary in the absence of a request by either party for further findings by the Commission, if the reasons for its conclusions are in doubt or it is thought that the findings should be amplified. Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149; Smith v. General Motors Corporation, Mo., 189 S.W.2d 259; Groce v. Pyle, Mo. App., 315 S.W.2d 482. No request was made by the appellant to the Commission for any amplification in the findings and the wording of the award leaves no doubt as to what the findings were. We therefore rule this point against the appellant.

The second and only other point raised, is that the court erred in concluding that Brandt, the claimant, did not sustain an abnormal or unusual strain. We find it unnecessary to cite authority for the established rule that upon review we cannot substitute our judgment for the judgment of the Commission upon a disputed question of fact. In reviewing the case we limit our consideration to the question of whether or not the Commission could have reasonably reached its conclusions and we bear in mind that the burden is upon the claimant to prove a compensable injury.

From the facts which we have stated above we cannot say that the Commission erred in finding that the claimant suffered no abnormal or unusual strain. His testimony leaves that issue Jn doubt. He was lifting the relatively light objects by means of the rope. He was in some position he had assumed to do this not too arduous task. He had lifted three fixtures, and when the fourth one was half way up to the platform he experienced the pain in his back. He described his position as awkward but never stated that he was in any way straining at his work. He was not aided by the testimony of his physician who concluded that the injury could have been caused by the manner in which the fixture was raised. Such a statement expresses nothing more than a possibility, and that is not sufficient to establish a causal connection. Welker v. MFA Central Co-Operative, Mo.App., 380 S.W. 2d 481.

We affirm the judgment of the Circuit Court which affirmed the judgment of the Commission.

RUDDY, J., and ROY W. McGHEE, Special Judge, concur.

ANDERSON, J., not participating.


author: CLEMENS, Commissioner.

text:
    BEHYMER CORPORATION, a Corporation, Plaintiff-Appellant, v. Joseph C. STEFFE et ux., Defendants, Joseph C. Steffe, Respondent.
    No. 32104.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Leyhe, Jacobsmeyer & Meyer, R. W. Jacobsmeyer, William H. Leyhe, III, Clayton, for appellant.
    Pannell & Hess, W. L. Pannell, Festus, for respondent.
   CLEMENS, Commissioner.

This appeal arises from an order quashing a writ of execution. The only issue is whether the plaintiff’s judgment is barred by defendant Joseph C. Steffe’s discharge in bankruptcy; and that, in turn, depends on the question of due notice of the bankruptcy proceeding.

A discharge in bankruptcy does not automatically release the bankrupt from all his debts. As said in the case of In re Perel, D.C.Tex., 51 F.2d 506[3]:

“While the discharge of an honest bankrupt who has fully and fairly complied with all of the requirements of the statute is one of the prime objects of bankruptcy, the right to discharge does not flow from the fact of adjudication alone, but from that fact coupled with compliance with all of the essential requirements of the Bankruptcy Act (11 USCA). * * *”

Our case touches only one segment of the law of bankruptcy. In capsule form it is this: A bankrupt may be discharged from a debt if he schedules it by correctly listing the creditor’s address; but even if he fails to do so, he still can be released from the debt if he shows that the creditor was otherwise notified or had actual knowledge of the bankruptcy proceeding.

Plaintiff originally got a $3,000 judgment against defendants Joseph C. Steffe and his wife, Jeanette B. Steffe. She has dropped out of this part of the case, so he alone will be referred to as the defendant. The judgment became final on July 3, 1963. The next week, on July 12, defendant filed a petition in bankruptcy listing the plaintiff’s judgment as a debt. In due course defendant was adjudged bankrupt and on October 1, 1963, he was ordered discharged.

Some months later the plaintiff got an “execution in garnishment,” returnable April 10, 1964. The defendant then filed his motion to quash, alleging his bankruptcy proceeding and declaring that * * plaintiff was duly notified of the said bankruptcy proceedings and received a notice from the said Federal District Court of the first meeting of Creditors which was held in said Federal District Court on the 23rd day of August, 1963. * * * ” However, at the outset of the hearing on the motion to quash, the parties stipulated that the plaintiff had not received the pleaded notice of the bankruptcy proceedings; and that the formal notice mailed to the plaintiff by the Referee in Bankruptcy had been returned to the referee because the defendant had incorrectly listed the address of plaintiff’s office.

The defendant had originally borrowed money from the plaintiff corporation in 1960, when its office was at 8954 St. Charles Rock Road in Overland, St. Louis County. When defendant scheduled his debts in his bankruptcy petition, he got that address from a receipt book originally given to him by the plaintiff in 1960 and from an old St. Louis telephone book he had at his home. Although the defendant worked regularly in the City of St. Louis, he made no effort to get plaintiff’s address from a current telephone book or any other source of current information. The plaintiff’s office had been gone from the Overland address for more than two years. In May of 1961 it had moved its office to 10987 Margate, Bridgeton, St. Louis County, and since then its address had been so listed in the St. Louis telephone books. The plaintiff knew nothing of defendant’s bankruptcy until it was asserted in the defendant’s motion to quash.

As said, the defendant’s motion had pleaded that plaintiff had been formally notified of the bankruptcy proceeding. Defendant admitted that was not so. He then introduced evidence, over plaintiff’s objection, in an effort to show that the plaintiff had acquired actual knowledge of the proceeding. This, by offering in evidence an earlier writ of execution which plaintiff had procured on June 20, 1963. That execution bore the sheriff’s return: “Executed the within Writ in the County of Jefferson, State of Missouri, on the 12 day of Aug A.D. 19 — , by Personal Service on Jeanette B. Steffe and find they have filed Bank-rucpty [sic] in U. S. Court 1114 Mkt St. Case No. 63B-1419 on July 11th 1963.” Although this earlier writ of execution was in the court file at the time of the hearing on May 14, 1964, there was no oral or documentary evidence as to when it had been issued by the clerk, or when it had been made or filed by the sheriff; nor was it shown that plaintiff had been informed of the sheriff’s return.

We will consider this evidence in the light of two key provisions of the Bankruptcy Act. Section 7 of the Act (11 U.S. C.A. § 25) requires a bankrupt to file a list of all his creditors “showing their residences or places of business, if known, or if unknown that fact to be stated. * * * ” Section 17 of the Act (11 U.S.C.A. § 35) declares that a discharge in bankruptcy shall release a bankrupt only from those debts that have been duly scheduled, “unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; * * jf the defendant is to be freed of his obligation to pay plaintiff’s judgment, he must have met one of these statutory requirements. As said in 9 Am.Jur.2d Bankruptcy § 797: * * If a debt is not duly and properly scheduled and the creditor did not have notice or knowledge of the proceedings in bankruptcy in time to file proof of claim, his debt is not affected by the discharge. * * * ” It was so held by this court in Wohlschlaeger v. Dorsey, Mo.App., 206 S.W.2d 677 [11].

The evidence therefore presents two questions of law: Did the defendant duly schedule the plaintiff’s judgment? If not, did the plaintiff nonetheless acquire notice or actual knowledge of the bankruptcy proceedings? We will examine these in turn.

The general rule as to a bankrupt’s duty to schedule the correct address of a creditor is in 9 Am.Jur.2d Bankruptcy § 374:

“ * * * In determining the sufficiency of the scheduling of a creditor’s residence or address, the Bankruptcy Act has, for the most part, been strictly construed. It has been held or recognized that the bankrupt is under a duty to exercise due diligence to ascertain the correct residence or address of the creditor for the purpose of scheduling him, and in exercising such diligence, it may be necessary to consult a telephone or city directory. Although the matter of good faith has been deemed to be of significance in a few cases, in other cases the fact of due scheduling, and not the intent, was deemed to be controlling. In several instances the sufficiency of the scheduled residence or address of the creditor has been said to be dependent on the particular facts and circumstances.
“As a rule, and at least in the absence of a sufficient explanation in such respect, the incorrect listing of a creditor’s residence or business address has been deemed an insufficient scheduling of the debt. * * * ”

To the same effect, see 8B C.J.S. Bankruptcy § 577(2) ; and 68 A.L.R.2d Annotation § 3, pp. 962-965. These principles were declared and applied in the case of Bartlett v. Taylor, 209 Mo.App. 612, 238 S.W. 141, where the bankrupt knew a creditor’s street address in Kansas City but omitted that street address in his schedule of debts. In denying the bankrupt’s claim of discharge as to that debt, the court said at 1. c. 238 S.W. 143:

“ * * * We think it follows from the rule laid down in that case [Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231] that, if a discharge is to have the effect of canceling the debt of the creditor who had no notice of the proceedings, the burden is upon the bankrupt to show substantial compliance with the act.
“The requirement for duly scheduling the names of creditors is in compliance with the generally recognized principle that one cannot be barred of his claim without the opportunity of having his day in court. It is for the benefit of the creditors and in the interest of fair dealing with them and must be construed in harmony with this purpose. [Citing cases.]
“We hold that it is a question of due diligence in every case, and in the case at bar defendant will be charged with lack of such due diligence. * * *”

Applying these principles to the facts of our case, we conclude that the defendant did not duly schedule the plaintiff’s judgment in his bankruptcy proceeding. He gave its address on information from sources well over two years old, although current information was readily available to him from any St. Louis telephone book or city directory. And, he failed to act upon the information that the notice mailed to plaintiff by the Referee in Bankruptcy had been returned because of the incorrect address. Thus, he failed to demonstrate the diligence required of him as a condition to his discharge from the plaintiff’s judgment by bankruptcy. This conclusion leads us to consideration of the defendant’s claim that plaintiff had acquired knowledge of his bankruptcy proceedings, and that such knowledge excuses him from failing to duly schedule the judgment.

As mentioned earlier, although the defendant pleaded that the plaintiff had been formally notified of the bankruptcy proceeding, he tried to prove that it had actual knowledge thereof from the sheriff’s return endorsed on its previous writ of execution. Even if we disregard the plaintiff’s objection thereto, this evidence does not save the defendant. His only relief would depend upon the portion of the Bankruptcy Act quoted above which permits a discharge if the creditor had “actual knowledge of the proceeding in bankruptcy.” As said in 9 Am.Jur.2d Bankruptcy § 799: “The notice or knowledge, from whatever source, must be actually existent, as distinguished from speculative, or so-called constructive notice, if it is to render a debt not duly scheduled dischargeable. * * * ” The case of Wheeler v. Newton, 168 App. Div. 782, 154 N.Y.S. 431, aff’d by Court of Appeals of New York, 220 N.Y. 607, 115 N.E. 1053, dealt with a creditor who was not given formal notice of bankruptcy proceedings but had been told by a third person that the debtor had gone into bankruptcy. In denying the debtor’s claim of discharge, the court said at 154 N.Y.S. 1. c. 434:

“ * * * It must follow, therefore, that when the statute here under consideration required ‘notice or actual knowledge,’ it contemplated a personal notice, or ‘knowledge of the proceedings in bankruptcy’ equivalent to such personal notice. In other words, that great underlying principle of our law, that no one shall he deprived of his property without due process of law, is present in this statute, and it requires such personal notice of the proceedings, or actual knowledge equivalent to such personal notice, as would be required in any court where it was proposed to deprive a man of his prop-er1y ⅜ ⅜ ⅜ W

There was no evidence here that either the plaintiff or its attorney was aware of the sheriff’s statement in the return until the filing of defendant’s motion to quash in February, 1964. So, we conclude that the plaintiff had no actual knowledge of the bankruptcy proceedings before that time. By then, the defendant had been discharged in bankruptcy and it was too late for such actual knowledge to bar plaintiff’s claim. This, because such actual knowledge by a creditor must be acquired before the bankrupt’s discharge. Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231.

Thus, there was not sufficient evidence before the trial court to warrant its order quashing plaintiff’s writ of execution and the garnishment in aid thereof. The order should be reversed and the cause remanded with instructions that further proceedings be consistent with this opinion.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the order quashing plaintiff’s writ of execution and the garnishment in aid thereof is reversed; and the cause is remanded with instructions that further proceedings be consistent with this opinion.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


text:
    Kevin Kennard MORRIS, an Infant, by Ira Lee Morris, His Next Friend, Plaintiff-Respondent, v. Roy T. KLEIN, Defendant-Appellant.
    No. 32231.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      F. Douglas O’Leary and Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Leo M. Newman, Goldenhersh, Gallagher, Fredericks & Newman, St. Louis, for respondent.
   CLEMENS, Commissioner.

The issue here is the propriety of having given defendant’s modified MAI converse instruction. The jury found for the defendant, but the trial court granted the plaintiff a new trial on the ground that it had erred in giving the defendant’s converse instruction. Now, the defendant has appealed, contending that his converse instruction was properly given. Our decision depends on the answers to two questions. First, was it error for the defendant to modify an MAI converse instruction in order to conform to the plaintiff’s modified MAI verdict-directing instruction? Secondly, did the burden of proof shift to the defendant because his converse instruction contained the improper affirmative phrase “if you believe” instead of the proper negative phrase “if you do not believe” ?

The plaintiff was a three-year-old boy who ran from between parked cars into a narrow street and collided with the defendant’s automobile. Plaintiff pleaded and submitted his case on the ground that the defendant had violated a St. Louis ordinance requiring that automobiles be driven on the right half of the street, and was thereby negligent per se.

Plaintiff’s evidence came from two sources. He introduced portions of the defendant’s deposition and the testimony of the investigating police officer. These facts were shown: At the place in question, Sarah Street runs north and south and cars were parked “bumper-to-bumper” along both sides. At noon on a bright day the defendant was going south at 20 to 25 miles an hour, driving “approximately in the center of the street.” He estimated that the open space between his car and the lines of parked cars was three feet on each side. The police officer, however, testified that Sarah Street was 31 feet wide, which would have given defendant enough room to drive entirely on the right half of the street. When the defendant was near the middle of the block, he saw plaintiff dart out from between two cars parked on the east side of the street, on defendant’s left-hand side. The plaintiff was then about a car length ahead of the defendant’s car and was “running as hard as he could.” The defendant jammed on his brakes and swerved to the right. The plaintiff changed neither speed nor direction and ran into the left-front, wraparound bumper of defendant’s car. The car laid down 23 feet of skid marks and swerved one foot to the right before coming to a stop about ten feet beyond the point of impact. When stopped, the right side of defendant’s car was within two feet of the line of cars parked along his right-hand side; and the plaintiff was then sitting in the street near the defendant’s left-front door.

As said, the jury brought in a verdict for defendant. Judgment, order granting new trial, and appeal followed apace; and now the propriety of giving defendant’s converse instruction is the only issue before us. The transcript shows two given instructions, one for plaintiff and one for defendant; but contrary to V.A.M.R. Civil Rule 70.01(d), MAI, neither instruction bears a mark as to its MAI number nor shows whether it is a modified MAI or was “not in MAI.” If the copies were so marked at the trial, as required, the transcript should have shown the marks. Instruction No. 1 is plaintiff’s verdict-directing instruction; Instruction No. 2 is defendant’s converse instruction. Neither precisely follows a Missouri Approved Instruction, and we are forced to speculate as to which MAIs the parties were trying to modify.

We look first at the plaintiff’s verdict-directing instruction:

“Your verdict must be for the plaintiff if you believe:
First, defendant failed to drive his automobile in the right half of the roadway, and
Second, as a direct result of such conduct, plaintiff sustained damage.”

This looks like a combination of MAI 17.01 and MAI 17.13 except as to driving “on the wrong side of the road,” which has been modified by substituting the words “failed to drive on the right half of the roadway.” It thereby conformed to the ordinance on which plaintiff relied. It was further modified by omitting a finding of negligence. This omission is approved by note 2 of the Committee’s Comment to MAI 17.01 in cases where a plaintiff is entitled to recover for a wrongful act which is negligent per se. We will now examine defendant’s given converse instruction.

As he explains in his brief here, the defendant intended to converse only one element of plaintiff’s verdict-directing instruction. He did not want to converse either the admitted fact that he was not driving on the right half of the roadway, or the admitted fact that plaintiff had been injured; but he did want to converse the denied fact that his wrongful driving was the proximate cause of plaintiff’s injuries. This element of proximate cause was an essential element of plaintiff’s case, and plaintiff had properly assumed that burden by his Instruction No. 1. The defendant was entitled to converse that single factual element of causation. Chance v. Atchi-son, Topeka & Santa Fe Railway Co., Mo., 389 S.W.2d 774 [4]; Civil Rule 70.01(f), MAI; and MAI 29.01, p. 245. He did this by Instruction No. 2:

“Your verdict must be for defendant if you believe that plaintiff’s injuries were not directly caused by defendant’s failure to operate his automobile on the right half of the roadway.”

In his motion for a new trial, the plaintiff leveled a three-pronged attack at this converse instruction. First, he says that the instruction is “argumentative and a comment on the evidence.” This abstract point is not briefed here and we find no merit in it.

Next, plaintiff says the converse instruction was erroneous because it was not selected from MAI and, therefore, violated subsections (b) and (c) of Civil Rule 70.01, MAI. Subsection (b) says:

“Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.”

Plaintiff does not point to the MAI which he thinks defendant should have used, but says only that MAI 29.02 through 29.04 and the subsections thereof contained an applicable converse instruction. Those sections contain fifteen converse instructions, and three of them—MAI 29.02(4), MAI 29.03(4) and MAI 29.04(3)—are designed to converse the single element of causation. But not one of them was applicable to this particular case. This, because each uses the words “as a direct result of defendant’s negligence.” As shown above, the plaintiff’s verdict-directing instruction hypothesized only the fact of defendant’s wrongful driving, not the negligence in doing so. Thus, there was no applicable converse instruction in MAI; and the defendant was forced into the permissible alternative of modification prescribed by Civil Rule 70.01(e), MAI, which says:

“GUIDE FOR THE FORM OF INSTRUCTIONS WHERE MAI NOT USED. Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.”

The defendant was entitled to modify a converse MAI, and he did so in accordance with this rule.

Furthermore, because the defendant’s converse instruction conformed to the unique submission plaintiff had chosen, even if defendant had erred, the plaintiff may not complain. This, because a party may not predicate error on a theory of law he himself has adopted. Millhouser v. Kansas City Public Service Co., 331 Mo. 933, 55 S.W.2d 673 [9]; Anderson v. Woodward Implement Co., Mo., 256 S.W.2d 819 [8],

Summarized, our ruling on this point is that when a verdict-directing instruction is so worded that it cannot be precisely conversed by one of the MAI converse instructions, it is not error to modify one of those converse instructions so that it does precisely converse the verdict-directing instruction. Hence, defendant’s converse instruction is invulnerable to the attack of not following MAI.

Plaintiff’s final attack on the converse instruction is on the ground that it “was not supported by independent evidence and proof as required by said instruction.” This conclusion by plaintiff stems from the fact that the converse instruction was not prefaced by the negative phrase “if you do not believe,” but instead was prefaced by the affirmative phrase “if you believe.” Plaintiff now argues that by using the words “if you believe,” defendant thereby assumed the burden of showing by independent evidence that plaintiff’s injuries were not caused by defendant’s wrongful driving. Plaintiff’s reasoning runs like this: When a defendant does have the burden of proving a submitted fact, his instruction must be prefaced by the words “if you believe”; therefore, if a defendant does use those words in an instruction, he thereby becomes charged with the burden of proving those facts. Plaintiff’s reasoning is unsound; his premise is correct but his conclusion does not logically follow that premise. By this kind of reasoning, one could argue: If a man practices law, he must pay his bar dues; therefore, if he does pay his bar dues, he must practice law. This is fallacious but we will give plaintiff’s contention deeper analysis.

In support of his theory, plaintiff relies on the “Notes on Use” following MAI 29.05, which MAI does use the affirmative phrase “if you so find.” The notes say:

“Use of this form carries with it the risk of nonpersuasion as the jurors are told [elsewhere] that when they are unable to form a belief on a proposition, that proposition fails. The proposition submitted must be supported by independent evidence. For this reason an instruction such as Converse 29.05 above would be rare since defendant could use Converse Instruction 29.02(4) or 29.03(4) without independent proof and without assuming the risk of nonpersuasion.”

This note and the preceding textual statement listed as “Third Method,” at page 246 of MAI 29.01, direct the use of the affirmative phrase “if you believe” for a reason inapplicable here. Those directions are based on the fact that there are two types of converse instructions. One is the so-called “true converse” instruction, which merely negates one or more necessary elements of the plaintiff’s case. The other type may be called an “affirmative converse” instruction. By this, the defendant may submit facts which would disprove one or more of the essential elements of plaintiff’s case; and this kind of instruction must have evidentiary support. See Liebow v. Jones Store Co., Mo., 303 S.W.2d 660 [4-7]; and Dell’Aria v. Bon-fa, Mo., 307 S.W.2d 479 [2], It follows that if a defendant does give an affirmative converse instruction, he assumes the burden of persuasion as to the exculpatory facts therein hypothesized, and there must be evidence of those facts. It is for this reason that an affirmative converse instruction should be prefaced by the affirmative phrase “if you believe.”

So, it is not correct, as plaintiff contends, that defendant’s mere use of the affirmative words “if you believe” shifted the burden of proving causation away from the plaintiff and cast upon defendant the burden of proving the absence of causation. The defendant’s converse instruction squarely negated the plaintiff’s essential element of causation. It was therefore a true converse instruction and needed no factual support because the burden of proving causation remained with the plaintiff. Edwards v. St. Louis Public Service Co., Mo., 365 S.W.2d 483 [7].

Reading the challenged instruction again, we see that it did nothing more than negate plaintiff’s essential element of causation. By plaintiff’s verdict-directing instruction, the jury was required to form a belief that the defendant’s conduct did cause plaintiff’s injury. The defendant was therefore entitled to a verdict if the jury failed to form such a belief as to causation. A proper “if you do not believe” converse instruction would have so directed the jury, but the defendant went further than that. His converse instruction required the jury to form a belief that the defendant’s conduct did not cause plaintiff’s injuries. This was not an incorrect statement of law, and it was harmless to the plaintiff because it merely placed a greater burden on the defendant than he needed to have assumed.

Our reasoning for so holding that there was no prejudicial error in giving defendant’s converse instruction follows that in McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343 [2]: By his verdict-directing instruction, the plaintiff required a finding of the necessary element of causation. Thus, the jury could not find for the plaintiff unless it found that the defendant’s wrongful driving was the cause of plaintiff’s injuries. This was true irrespective of defendant’s Instruction No. 2; this was true even though the defendant had offered no instruction. It must follow that Instruction No. 2 added nothing to the burden already assumed by plaintiff in his Instruction No. 1. And it also must follow that no demonstrable prejudice could result from the giving of Instruction No. 2.

Summarized, our ruling on this point is that a true converse instruction — one which merely negates one or more of the essential elements of plaintiff’s case — does not require evidence to support it; and this is true even though it is ineptly prefaced by the affirmative phrase “if you believe” instead of the proper negative phrase “if you do not believe.”

Finding no prejudicial error in defendant’s Instruction No. 2, the order granting plaintiff a new trial should be reversed, and the cause remanded with instructions to enter judgment for defendant.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the order granting plaintiff a new trial is reversed and the cause is remanded with instructions to enter judgment for the defendant.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.