February 21, 1939.
1. NEGLIGENCE: Counterclaim: Humanitarian Rule. Where plaintiff sued for injuries caused by a collision of his automobile with defendant's truck and defendant filed a counterclaim for damages caused by the collision, an instruction authorizing a verdict for defendant on a finding that the plaintiff's truck was being negligently driven upon the left side of the center of the highway and as a direct result the collision occurred and that defendant was at the time in the exercise of the highest degree of care on his part, was defective in that it did not require a finding that plaintiff's servant, driving the truck, saw or ought to have seen defendant in a position of imminent peril in time, by the exercise of the highest degree of care, to have avoided the collision.
The instruction was further defective in that it was not limited to a finding for defendant on defendant's counterclaim, but directs a verdict for defendant upon a finding of the hypothesized facts on the entire case, plaintiff's cause and defendant's defense thereto, and defeated plaintiff's cause of action.
An instruction directing a verdict on factual issues should submit the pleaded and proved affirmative facts upon which the predicated verdict is to be determined.
2. TRIALS: Instructions. Instructions predicating recovery on a defensive factual issue are reversibly erroneous for the omission of some constitutive factual element essential to the contemplated favorable determination of the ultimate factual issue instructed upon.
Any instruction which injects a totally foreign issue into a case is not only erroneous, but dangerous and harmful.
Contributory negligence is an issue wholly foreign to a case submitted purely under the humanitarian rule and its injection is reversible error.
Defendant's instruction authorizing a verdict on defendant's counterclaim and against the plaintiff on its cause of action, without a finding of the factual issues presented by plaintiff's petition, was confusing and calculated to mislead the jury and erroneous under rulings of the Supreme Court, and a holding by the Court of Appeals approving the instruction was in conflict with such rulings.
3. NEGLIGENCE: Damages: Consequential Injuries. In an action by plaintiff for injuries caused by a collision of plaintiff's truck with defendant's automobile, evidence offered by defendant that his wife's condition was likely to become malignant and cancerous was incompetent under an allegation in defendant's counterclaim that the wife "was violently thrown, cut, bruised, shocked, wounded, contused, strained, and otherwise injured," was of no probative value on the factual issues involved.
Such allegations are limited to injuries received in the collision and make no attempt to embrace after developments of a malignant or cancerous nature.
Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged; a holding by the Court of Appeals that such testimony was admissible was in conflict with the rulings of the Supreme Court.
THAT PORTION OF THE OPINION OF THE SPRINGFIELD COURT OF APPEALS IN CONFLICT WITH THE RULINGS MENTIONED IS QUASHED.
Mann, Mann Miller for relators.
(1) Respondents, in their opinion, refer to the pleadings and the negligence and other matters therein alleged and also directly refer to the instructions and pass upon the issues raised in the instructions. Where the opinion refers to the pleadings and the instructions, both the pleadings and the instructions are considered to be within the opinion as fully as though they had been written into it in full. State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. Western Automobile Ins. Co. v. Trimble, 249 S.W. 903, 297 Mo. 659; State ex rel. Seibel v. Trimble, 299 Mo. 164, 253 S.W. 218; State ex rel. Hancock Ins. Co. v. Allen, 267 S.W. 834, 306 Mo. 197.2d Plaintiff's negligence, even if it be conceded, constitutes and is no defense for the defendant in measuring the defendant's liability under the last chance or humanitarian doctrine. This salutary rule based on humane precepts is one that has been jealously guarded by the courts of this State. It has been said to be a doctrine of negligence peculiar unto itself and is distinguished from the general doctrine of negligence, so-called primary negligence. It is held that where plaintiff's case is submitted solely upon the last chance doctrine that it is then error to even instruct in even the most precautionary manner on any alleged contributory negligence on the part of the plaintiff. Where, by reason of the fact that plaintiff's case is submitted upon both alleged primary negligence and under the last chance doctrine it does become proper in defense of the alleged liability of the defendant, under acts of primary negligence, to submit to the jury an act or acts of the plaintiff alleged to constitute contributory negligence, then such an instruction must clearly and definitely set out that it has no application to plaintiff's right to recover under the last chance doctrine and be so worded that the layman on the jury will not be confused as to such issue. Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Herrell v. Frisco, 332 Mo. 551, 18 S.W.2d 486; Bussey v. Don, 259 S.W. 793; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 146; Abramowitz v. United Rys. Co., 214 S.W. 119; Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 59 S.W.2d 633. (3) The evidence can be no broader than the pleadings and special damage must be specially pleaded, or else evidence thereof is not admissible. Evidence is only admissible as to those injuries specially pleaded, or which naturally and necessarily result from the character of injuries so generally set forth. Hall v. Coal Coke Co., 260 Mo. 371, 168 S.W. 927; Connor v. Kansas City Rys. Co., 250 S.W. 574, 298 Mo. 18; Boggs v. Gasser, 55 S.W.2d 725; Chambers v. Kennedy, 274 S.W. 731; Grott v. Johnson, Stephens Shinkle Shoe Co., 2 S.W.2d 788. Cancer or cancerous condition, or one likely to become so, is not the natural and is not the necessary result of being "violently thrown, cut, bruised, shocked, wounded, contused, strained and otherwise injured," the above being the injuries it is alleged Mrs. Freewald sustained; nor can it be said to be by the farthest stretch of the imagination. Respondents' holding that testimony as to such special damage was competent in this case under the allegations made as to Mrs. Freewald's injuries, is squarely in conflict with the above decided opinions of this court, is bad law and should not be allowed to stand.
W.I. Mayfield and Ruark Ruark for respondents.
(1) The only matter to be determined on certiorari is whether or not the last controlling decision of this court has been contravened; and a conflict between the decision of the Court of Appeals must appear and be shown on the face of the opinion. State ex rel. Amer. School of Osteopathy v. Daues, 18 S.W.2d 487, 332 Mo. 991; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. Bradley v. Trimble, 289 S.W. 922, 316 Mo. 97. The Supreme Court is not concerned with the correctness of the appellate court's opinion unless there is a conflict apparent of record. State ex rel. Fitchner v. Haid, 22 S.W.2d 1045, 324 Mo. 130. The failure of an appellate court to pass upon some question presented by a litigant furnishes no ground for writ of certiorari; for such failure does not furnish a conflict of the opinions. State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. Olsen v. Allen, 253 S.W. 1012. (2) It is well settled that all instructions must be read and construed together; and when the series of instructions thus taken contain a complete exposition of the law and cover the issues, there is no prejudicial error. Larey v. Ry. Co., 64 S.W.2d 684; McIntyre v. Ry. Co., 286 Mo. 260. Matters of defense need not be negatived by the opposite party where the party pleading the defense submits and gets an instruction on the matters of defense so pleaded. Heigold v. United Rys. Co., 308 Mo. 157, 271 S.W. 773; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Smith v. Ohio Millers Mut. Ins. Co., 330 Mo. 236, 49 S.W.2d 42; State ex rel. Jenkins v. Trimble, 291 Mo. 236; State ex rel. v. Cox, 270 S.W. 114, 307 Mo. 194. (3) Challenged Instruction 7 is invulnerable to attack from any angle. It directed a verdict for defendant upon a finding by the jury that the collision was caused by the truck being upon the wrong side of the road and also — "That the defendant at the time was in the exercise of the highest degree of care upon his part." We find that similar instructions have met the court's approval: Stanton v. Jones, 59 S.W.2d 648; Geisendorf v. Brashear Truck Co., 54 S.W.2d 73; Wright v. Mining Co., 163 Mo. App. 536; Kaiser v. Jaccard, 52 S.W.2d 20; Jackson v. Anderson, 273 S.W. 429. (4) Sometimes a litigant is held to the theory upon which he tries his case in the court below; and that he cannot complain of error which he has invited; nor of an error in his opponent's instructions where he has himself been guilty of like error in his own. Carle v. Akin, 87 S.W.2d 406; Bennett v. Hader, 87 S.W.2d 413, 337 Mo. 977. (a) Relators present their second point to the court as though the trial court had permitted the witness to state, and that the witness did state, that defendant's wife had or would have a cancer and that such was sent to the jury as an item of damages. A mere reading of the respondents' opinion will disclose that the respondents held that the witness said he did not know whether or not such would be the result of her injuries. This court on certiorari takes the fact as stated in the opinion of the lower court. State ex rel. Ry. Co. v. Haid, 37 S.W.2d 437; State ex rel. Ward v. Trimble, 39 S.W.2d 372.
The case arises out of a collision between a truck owned by Grisham and Bell, relators herein and plaintiffs below, and a Ford coupe owned by V.W. Freewald. Plaintiffs instituted suit for damages to their truck, predicating a recovery under the humanitarian rule as well as primary negligence on the part of defendant. Defendant's answer was a general denial and a counterclaim, predicating a recovery under the humanitarian rule and primary negligence on the part of plaintiffs' employee. Plaintiffs' answer to defendant's counterclaim was a general denial, coupled with pleas of contributory negligence. Plaintiffs appealed from a judgment of $1500 for defendant.
Defendant submitted his case on two instructions — an instruction on the measure of damages and an instruction reading (230 Mo. App. l.c. 1212, 95 S.W.2d l.c. 355):
"The jury are instructed that if they find and believe from the evidence that the defendant and defendant's wife were injured by reason of his automobile coming into collision with a truck, then being run and operated by the servant and employee of the plaintiffs, and that at such time the defendant was driving his automobile upon or to the right of the center of the highway upon which he was traveling, if shown, and that the plaintiffs' truck was then being negligently driven upon the left hand side of the center of the highway, considering the direction it was traveling, if shown; and that as a direct result of plaintiffs' truck being so driven, if shown, the defendant's car and the plaintiffs' truck came into collision, and that the defendant was at the time in the exercise of the highest degree of care upon his part, then the jury will find the issues for the defendant."
Respondents approved the instruction over relators' assignment it completely ignored the humanitarian doctrine.
Plaintiffs' petition sought a recovery of $400; defendant's counterclaim, a recovery of $5000. Each litigant, in turn, had the offensive and defensive. Reference to respondent's opinion (l.c. 1213 and 355, respectively) discloses that defendant's other instruction read, in so far as here material: "If the jury find the issues for the defendant on his counterclaim, they will allow him such damages . . ." If the questioned instruction is to be construed as authorizing a verdict for defendant on defendant's pleaded negligence of plaintiffs' servant under the humanitarian rule, an issue presented by defendant's counterclaim, it is obviously defective in that, for instance, it required no finding that plaintiffs' servant saw or ought to have seen defendant in a position of imminent peril in time thereafter, by the exercise of the highest degree of care, to have avoided the collision (see, among others, Keels v. Atchison, T. S.F. Ry. Co., 258 Mo. 62, 75(1), 77(3), 167 S.W. 433, 438(5, 7); Zimmerman v. Hannibal St. J. Railroad Co., 71 Mo. 476, 484), and, as a corollary thereto, it permitted of a recovery under the humanitarian rule for antecedent primary negligence of plaintiffs' servant (State ex rel. v. Bland, 322 Mo. 565, 15 S.W.2d 798, and cases cited).
To the writer the quoted instruction also appears objectionable in so far as it purports to cover a defense to plaintiffs' pleaded and proved humanitarian case. It is unrestricted by reference to any other instruction in the case. It is not limited to a finding for defendant on defendant's counterclaim. It directs a verdict for defendant upon a finding of the hypothesized facts on the entire case — plaintiffs' cause of action, defendant's defense thereto, defendant's cause of action and plaintiffs' defense thereto; and as a consequence to the defeat of plaintiffs' cause of action purported to cover, among other issues, plaintiffs' pleaded and proved allegations of defendant's negligence under the humanitarian rule.
Respondents' brief says the clause in the instruction reading — ". . . and that the defendant was at the time in the exercise of the highest degree of care upon his part . . ." — met plaintiffs' humanitarian case. Respondents cite no authority holding such an abstract clause in a factual instruction directing a verdict functions in the all embracing manner respondents ascribe to it in the instant case. In the cases cited by respondents, the questioned instructions submitted specific defensive factual issues to a humanitarian case [see, for instance, Stanton v. Jones, 332 Mo. 631, 638(2), 59 S.W.2d 648, 651(3)]; or questioned instructions containing clauses in general terms necessarily negativing, in effect, the finding of the affirmative factual defense of contributory negligence to plaintiff's primary negligence case [see, for instance, Kaiser v. Jaccard (Mo. App.), 52 S.W.2d 18, 20(1)] were held sufficient when read in connection with an instruction predicating a verdict for defendant upon a finding of said defensive factual issue [see, for instance, Heigold v. United Rys. Co., 308 Mo. 142, 157, 271 S.W. 773, 777]. The negation in general terms of an affirmative factual issue essential to a verdict for defendant in an instruction hypothesizing the constitutive facts essential to plaintiff's recovery differs from an instruction purporting to submit a factual issue or issues essential to the defeat of plaintiff's cause of action. It is the writer's understanding that instructions directing a verdict on factual issues should submit the pleaded and proved affirmative facts upon which the predicated verdict is to be determined — if for plaintiff, facts authorizing; if for defendant, facts defeating a recovery — possibly to preclude entrusting the jury with a roving commission and to keep the instructions within the pleadings and the proof. Defendant's instruction did this upon the issue of plaintiffs' primary negligence. But, the instruction reads in the conjunctive. The quoted clause does not submit merely an abstract proposition of law. The word "and" expressly connects said clause with the other portions of said instruction. This forbids tearing the clause from its setting. The instruction should be read as a whole. When so read, the application of the abstract statement relied upon is limited to the stated duty in said instruction of defendant "driving his automobile upon or to the right of the center of the highway" — the only factual duty explicitly submitted with respect to the acts of defendant. From this the jury might well reason, absent requirement contra, the issues were to be determined against plaintiffs on plaintiffs' cause of action upon a finding defendant exercised the highest degree of care in driving his automobile upon or to the right of the center of the highway. Such, of course, was not the ambit of defendant's duty under plaintiffs' humanitarian case; because: If defendant, for instance, could have slowed down and avoided the collision under the humanitarian doctrine, it was defendant's duty so to do; for defendant could not implicitly insist, under said doctrine, upon the "rule of the road" and blindly pursue his way so long as he remained to his right of the center of said highway.
We have held instructions predicating a verdict on a defensive factual issue, the same as instructions predicating a recovery on an affirmative factual issue, reversibly erroneous for the omission of some constitutive factual element essential to the contemplated favorable determination of the ultimate factual issue instructed upon. See, among others, for instructions submitting a defense under the humanitarian rule, Schulz v. Smercina, 318 Mo. 486, 501(V), 1 S.W.2d 113, 120(8); Martin v. Fehse, 331 Mo. 861, 867(3), 55 S.W.2d 440, 442(3), (the instruction closed: "and that defendant . . . was free from any negligence, then your verdict must be for the defendant"); Thompson v. Quincy, O. K.C. Railroad Co. (Mo.), 18 S.W.2d 401, 406(18), (stating: "While the instruction states correctly the abstract law, it does not sufficiently cover the facts").
In passing, we note the reference to antecedent primary negligence of plaintiffs' servant in the instruction — "and that the plaintiffs' truck was then being negligently driven upon the left hand side of the center of the highway, considering the direction it was traveling. . . ." With respect to the injection of the issue of contributory negligence, even though not as a defense, in a case submitted solely under the humanitarian rule, Schulz v. Smercina, 318 Mo. 486, 501, 1 S.W.2d 113, 120, concludes: ". . . they [defendant's instructions] do inject the issue of contributory negligence, and require the jury to determine the issue. Any instruction which injects a totally foreign issue into a case is not only erroneous, but dangerous and harmful. Contributory negligence is an issue wholly foreign to a case submitted purely under the humanitarian rule. Its injection was reversible error." The writer is unable to perceive any difference justifying a distinction between the situation existing in Schulz v. Smercina and the instant case affording respondents any solace. In that case the sole issue for the jury's determination was defendant's negligence under the humanitarian doctrine. In the instant case the sole instruction directing a verdict for defendant covered all issues, embracing in its defensive features defendant's negligence under the humanitarian doctrine, and injected into a consideration of plaintiffs' humanitarian case the factual issue of antecedent primary negligence of plaintiffs' servant. Doherty v. St. Louis Butter Co., 339 Mo. 996, 1006, 98 S.W.2d 742, 746, was subsequent to respondent's opinion, but recognizes the law discussed in Schulz v. Smercina, supra, and speaking to the right of a defendant to submit a defense to plaintiffs' humanitarian case in appropriate instructions, states: "Such instructions, however, must be specific and not leave room for the jury to consider contributory negligence as a defense."
Viewed in the foregoing respects, defendant's questioned instruction is confusing, well calculated to mislead the jury, and under our rulings, erroneous. It presents issues involving misdirection, not merely nondirection. We do not read plaintiffs' answer (see 230 Mo. App. l.c. 1213, 95 S.W.2d l.c. 356) as pleading defendant's negligence under the humanitarian rule as a defensive feature (consult Wilson v. Wells, 321 Mo. 929, 942, 13 S.W.2d 541, 546(5); Banks v. Morris, 302 Mo. 245, 268, 257 S.W. 482, 485). The instant issue pivots on plaintiffs' pleaded and proved humanitarian case and defendant's defense thereto; not defendant's cause of action and plaintiffs' defense thereto.
Relators say defendant's examination of a physician embracing inquiries as to whether or not defendant's wife's conditions "are or not likely to become malignant and cancerous" was not within the scope of the allegations of damage in defendant's counterclaim; and complain of respondents' ruling: "We think the foregoing part of defendant's answer and counterclaim with reference to his wife's condition shows clearly that the examination was not beyond the pleadings" (230 Mo. App. l.c. 1211, 95 S.W.2d l.c. 354). Respondents' brief states one of defendant's items of damages was the loss of the services, etc., past and future, of his wife; and quotes the following from defendant's counterclaim: "That the wife of the defendant was violently thrown, cut, bruised, shocked, wounded, contused, strained, and otherwise injured in such collision" as justifying the examination.
The witness stated defendant's wife had a fibrous tumor on the right hip; that a fibrous tumor acts as a foreign body, could become cancerous, a very favorable site for a cancer; and "I don't know that it will but it could;" ". . . that is my opinion about it." This testimony was permitted to remain in the record over plaintiffs' several objections that it was not within the pleadings, was purely speculative and not a definite statement of facts. It thus appears the trial court considered the testimony to be of some probative value on the factual issue involved and, from the nature of the objections interposed and the rulings of the court thereon, the jury must have so understood.
We think the issue well within the situation presented in Chambers v. Kennedy (Mo.), 274 S.W. 726, 730(3), wherein plaintiff's evidence to the effect that epilepsy is a disease of the nervous system and that "it might or might not result" from the injuries plaintiff sustained was held to have been improperly admitted under a petition charging plaintiff suffered a severe concussion of his skull and brain, his entire muscular system was injured, his entire nervous system, including the nerve centers, was injured, his mind and mental processes were injured, and the permanency of said injuries. The allegations (quoted above) upon which respondents rely in their brief, like the allegations involved in the Chambers case, appear to be limited to injuries received in the collision and make no attempt to embrace after the developments of a malignant or cancerous nature. In Hall v. Manufacturers C. C. Co., 260 Mo. 351, 372, 168 S.W. 927, 932, this court en banc quoted and applied the following from 5 Ency. Pl. Prac., p. 719: "`Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged.'" Consult Grott v. Johnson, S. S.S. Co. (Mo.), 2 S.W.2d 785, 788(2), (stating: "The evidence did not show that plaintiff's menstrual disturbance was the necessary result of her injuries . . ."); also Knaup v. Western C. M. Co., 342 Mo. 210, 114 S.W.2d 969, 975(12). Under the authorities cited, the examination is not to be justified on the ground it was within the pleadings.
Accordingly, that portion of respondents' opinion in conflict herewith and the record made pursuant thereto should be and is quashed. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.