Opinion
No. 21637.
January 7, 1952.
Price Shoemaker, Elmer E. Reital, and Don Pierce, all of St. Joseph, for appellant.
Vincent S. Barry, O. E. Shultz, St. Joseph, for respondent.
Plaintiff, Fisher, sued defendant, Duster, for damages arising out of personal injuries sustained in a collision of their respective automobiles. Defendant answered by way of general denial, and counterclaimed for property damage and personal injuries. From a judgment for plaintiff in the amount of $6,000 defendant appeals.
It will not be necessary to set out the evidence in detail. Briefly, defendant was operating his automobile in an easterly direction, over Missouri Highway 36, at a speed of approximately 55 miles per hour. Plaintiff, also proceeding eastward on said highway, drove up behind defendant, gave a horn signal, and attempted to pass to defendant's left.
Plaintiff claimed that defendant's automobile swerved into the side of plaintiff's automobile; defendant claimed that plaintiff drove his automobile into the front and side of his car. The vehicles became attached to each other for a time and, eventually, both left the highway and overturned. Both parties suffered severe injuries and both vehicles were damaged.
There was but one issue submitted to the jury, under instructions on behalf of both parties, namely: Which of the parties drove his automobile into the other vehicle? Each claimed to be without fault, and each contended that the other negligently caused the accident.
Plaintiff's main instruction is as follows: "The Court instructs the Jury that if you find from the evidence that Plaintiff on the 27th day of September, 1948, in the afternoon of said date was operating an automobile east over Highway 36 in DeKalb County, Missouri, and the defendant A. J. Duster at said time was operating an automobile east over said Highway in said County and if you further find from the evidence that said Defendant negligently turned or permitted his automobile to turn to the left and into the north lane of travel when plaintiff's car was in the said north land and in the act of passing defendant's automobile and thereby negligently permitted and caused the left front of said defendant's automobile to strike the right side of plaintiff's automobile and become attached to the right rear side of plaintiff's automobile and if you further find from the evidence that said negligent act of defendant, if you so find, caused plaintiff to be injured, then your verdict shall be for plaintiff on his cause of action and against defendant on his counterclaim."
Defendant contends that the instruction is erroneous in that the jury is not required to find that plaintiff was in the exercise of the highest degree of care in the operation of his automobile at the time the collision occurred. It is contended that evidence, and a jury finding to that effect, is an essential element of plaintiff's case, under the provisions of RSMo 1949, § 304.010, V.A.M.S.
It was not necessary for plaintiff to allege, in his petition, that he was in the exercise of the highest degree of care, Schoolfield v. Parrish, Mo.App., 230 S.W.2d 802, 805; and we have held that an instruction was not erroneous because it did not require the jury to find that plaintiff, automobile operator, was in the exercise of the highest degree of care. McGraw v. Montgomery, 239 Mo.App. 239, 185 S.W.2d 309, 316. The failure of plaintiff to exercise the highest degree of care in the operation of his automobile, is a matter for affirmative defense, and it is not necessary that the jury be required to make a finding on the issue under plaintiff's main instruction. 1 Raymond Missouri Instructions, Sec. 35. Furthermore, defendant's instructions "A" and "B" covered fully plaintiff's alleged negligence, and defined negligence as a failure to exercise the highest degree of care, properly defining that phrase. 1 Raymond Missouri Instructions, Sec. 93.
In Lindsey v. Rogers, Mo.App., 220 S.W.2d 937, relied on by defendant, the instruction there condemned contained a misdirection. The same is true in Burlingame v. Landis, Mo.App., 234 S.W.2d 808. Neither case is authority for the proposition that the question must be presented in plaintiff's instruction.
The instruction is not in conflict with defendant's instruction "A," as charged. Instruction "A" merely presents the converse of plaintiff's instruction 1, and directs a verdict for defendant on his counterclaim. Defendant's instruction "B" defines negligence and "highest degree of care." It applies equally to plaintiff and defendant.
Instruction 1 is further criticized because it is claimed that the words: "and became attached to the right-rear side of plaintiff's auto" is a comment on the evidence. It is difficult to see how that language in the instruction could be prejudically harmful to defendant, and we hold that it was not.
Error is also urged on the grounds that plaintiff's counsel improperly injected insurance into the case during his cross-examination of defendant. In direct examination, in answer to a question propounded by his counsel regarding a conversation had with plaintiff while they were being transported to a hospital in an ambulance, defendant stated that he told plaintiff that he, defendant, carried insurance. Plaintiff had previously testified to another conversation he claimed to have had with defendant and which defendant denied. Defendant stated that the conversation had in the ambulance was the only one he had with plaintiff. Thereafter, plaintiff's counsel asked defendant the following question: "Q. * * * and that you didn't have any conversation with him until on the way to the hospital in St. Joseph in the ambulance and that he asked you if you had insurance?" Upon objection that question was withdrawn. Defendant was then asked to repeat the conversation had in the ambulance. Objection was overruled and defendant repeated that conversation previously related in his direct examination. Motion to discharge the jury was denied.
The jury already knew that insurance was in the case because of defendant's previous statement to that effect made in answering questions propounded by his own counsel. If the incident complained of is error, which we do not hold, it was not prejudicial error. Defendant could not have been harmed by it. Jones v. Missouri Freight Transit Company, 225 Mo.App. 1076, 40 S.W.2d 465, 470; Fortner v. Kelly, 227 Mo.App. 933, 60 S.W.2d 642.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.