Opinion
May 7, 1940.
CERTIORARI: Jurisdiction. Where the filling station agent of defendant pushed a truck upon a highway at night where the plaintiff in his own automobile collided with it and was injured, an instruction authorizing a verdict for plaintiff on a finding by the jury that by reason of the absence of a red light on the back of said truck, if the jury should find it was absent, plaintiff collided with it and was injured they should find for plaintiff though the instruction did not require that the said agent of defendant knew or by the exercise of ordinary care could have known that the truck was without a lighted rear light, where the evidence tended to show there was none and the jury was required to find that fact, a holding by the Court of Appeals, from the fact the agent testified the red light was on the back of the truck, that he knew whether or not it was there, was not in conflict with any ruling of the Supreme Court, since an instruction further required the jury to find that the agent while pushing the truck on the highway was in the exercise of ordinary care before they could find for defendant.
WRIT QUASHED.
I.J. Ringolsky, Wm. G. Boatright, Harry L. Jacobs, Ringolsky, Boatright Jacobs and C.A. Whitebook for relator.
(1) No recovery can be had on general negligence when the petition alleges or the evidence discloses specific negligence. Grimes v. Red Line Serv., Inc., 337 Mo. 743, 85 S.W.2d 767; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; State ex rel. v. Shain, 122 S.W.2d 885. (2) A main instruction for plaintiff covering the entire case and authorizing verdict which does not limit the consideration of the jury to the specific negligence pleaded and sustained by the evidence is fatally erroneous and cannot be cured by a correct instruction given at the request of defendant. (3) The omission of an essential element of plaintiff's right of recovery from a main instruction covering the entire case and authorizing verdict is a misdirection of the jury and not a mere submission of an element in too general terms. State ex rel. v. Shain, 124 S.W.2d 1194.
Luther W. Adamson and Martin J. O'Donnell for respondents.
(1) Relator evidently caused the issuance of the writ by representing to this court that an instruction referred to in the application for the writ of certiorari as plaintiff's "main instruction" did not submit the question of the knowledge by Howell of the absence of a light from the rear of a truck and by stating that respondent's opinion so stated. Bompart v. Lucas, 32 Mo. 124. (2) The instruction required the jury to find that Howell ". . . negligently assisted in pushing the Stinnett truck mentioned in evidence without a red light on the back thereof facing the rear." Johnson v. Ry. Co., 334 Mo. 35; Morton v. Telephone Co., 280 Mo. 360; Messing v. Drug Co., 322 Mo. 924; Kamer v. Ry. Co., 326 Mo. 805; Hall v. Ry. Co., 74 Mo. 302; Berberet v. Amusement Co., 319 Mo. 279; Bird v. Ry. Co., 336 Mo. 332; Schulz v. Smercina, 318 Mo. 486.
Certiorari to quash the opinion of the Kansas City Court of Appeals in Fawkes v. National Refining Co., 130 S.W.2d 684. In that case the Court of Appeals affirmed a judgment for plaintiff for personal injuries. On the night in question the motor of a truck owned by C.H. Stinnett would not function. Assuming that the truck was without gas, Stinnett and companion pushed it to the filing station of the defendant company and purchased gasoline. Even then the motor would not function. Thereupon Stinnett, companion and Earl Howell, filling station agent of the company, in an effort to start the motor, pushed the truck from the station on to the highway where the truck, in which plaintiff was riding, collided with the rear end on the Stinnett truck.
In substance the petition alleged that the Stinnett truck was without a lighted rear light; that Howell, the agent of defendant company knew, or, by the exercise of ordinary care, could have known that the truck was without a lighted rear light, yet, he negligently pushed the truck from the station on to the highway, thereby negligently causing plaintiff's injury.
Relator contends that the opinion of the Court of Appeals conflicts with opinions of this court, ruling that general negligence should not be submitted to the jury when the petition alleges, or the evidence discloses, specific negligence.
Relator also contends that the opinion conflicts with opinions of this court, ruling that the omission of an essential element of plaintiff's right of recovery from an instruction covering the entire case and authorizing a verdict, is prejudicially erroneous. The challenged instruction follows:
"The court instructs the jury that if you believe and find from the evidence that defendant Howell, while station agent of defendant, National Refining Company, and as such acting within the scope of his employment, if you so find, negligently assisted in pushing the Stinnett truck mentioned in evidence without a red light on the back thereof facing to the rear, if you so find, from the grounds of the filling station of the National Refining Company mentioned in evidence to, upon, over and along the highway mentioned in evidence; that by reason of the absence of such red light from the back of said automobile truck, if you find it was absent, and that as a direct result thereof, the truck in which plaintiff was riding collided with said automobile truck and that plaintiff was thereby injured and that plaintiff exercised ordinary care to warn her husband of its presence, then your verdict must be for plaintiff and against defendant National Refining Company."
It will be noted that the instruction did not require the jury to find that Howell, the agent of defendant company, knew, or, by the exercise or ordinary care, could have known, that the truck was without a lighted rear light. There was testimony tending to show that the truck was equipped with a lighted rear light, and there was testimony tending to show that the truck was not equipped with such a light.
The Court of Appeals concedes that the challenged instruction did not clearly direct the jury on said issue. Even so, it ruled that the above-mentioned opinions of this court are without application in the face of the testimony of Howell, agent and witness for defendant company. Howell testified that he pushed on the rear end of the truck and that it was equipped with a "tail light." From this, the Court of Appeals ruled that Howell must have exercised ordinary care by examining the rear of the truck to determine whether it was equipped with a lighted rear light; otherwise he could not have given testimony on the question. In other words, the said court ruled that Howell's testimony was an admission that he knew whether or not the rear end of the truck was equipped with a lighted rear light. In view of this admission, the said court ruled that requiring the jury to find that Howell "negligently assisted in pushing the Stinnett truck . . . without a red light on the back thereof," was an indefinite submission to the jury of the issue of ordinary care on the part of Howell.
It further ruled that the indefinite submission of the issue was cured by defendant's instruction which required the jury to find that Howell, while pushing the truck on the highway, was in the exercise of ordinary care. In so ruling, the Court of Appeals followed the ruling of this court in McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37.
There is no conflict with the rulings of this court, and the writ should be quashed. It is so ordered. All concur.