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08/16/83 RICHARD E. WEISBACH AND VALERIE WEISBACH

August 16, 1983

RICHARD E. WEISBACH AND VALERIE WEISBACH, RESPONDENTS,
v.
KAREN J. VARGAS, APPELLANT



From the Circuit Court of Jackson County; Civil Appeal; Judge Robert A. Meyers.

Before Wasserstrom, P.j., Kennedy, Nugent, JJ.

The opinion of the court was delivered by: Kennedy

Defendant appeals from judgments for husband and wife, Richard and Valerie Weisbach, for personal injuries and loss of consortium growing out of an automobile collision between a car driven by defendant Karen J. Vargas and a van driven by plaintiff Richard Weisbach in which his wife Valerie Weisbach was riding as a passenger.

We find no prejudicial error and we affirm the judgment, except as to the judgment for Richard for loss of his wife's services, which we reverse.

The facts of the case are as follows:

Richard and his wife Valerie, late at night, were in a street in Kansas City, Missouri, intending to make a left-hand turn into the parking lot of a convenience store. Their van was struck from the rear by the vehicle driven by defendant Vargas. Richard and Valerie were both injured, and this suit followed.

Richard was awarded $7,500 for his personal injuries and $750 for loss of his wife's services. Valerie was awarded $2,500 for her own injuries and $750 for the loss of her husband's services.

Other facts will appear in connection with the various allegations of error.

I

Defendant first says that the court erred in refusing to give a withdrawal instruction offered by defendant. The refused withdrawal instruction reads as follows: "The issue of plaintiff, Richard Weisbach's claim for lost wages from Ford Motor Company from the date of the accident to the present date is withdrawn from the case and you not to consider such evidence in arriving at your verdict."

The trial developments which prompted defendant's offering the withdrawal instruction, were as follows: Richard testified that he was off his employment as an assembly-line worker at Ford Motor Company for a period of 15 months, and lost wages in the amount of $25,275. He testified that at the time of the accident he had been off work on medical leave for a period of four or five months on account of his diabetic condition, but that by the time of the accident he felt "pretty good," that his medical leave was up on the following Monday after the accident and that he intended to report back on that following Monday. It developed on cross-examination, however, that the medical leave expired a month later, rather than the following Monday, and that the reason he did not return to his employment at Ford was his diabetic condition and his inability to work around gas fumes. There was no connection between the injuries received in the accident and his inability to return to his former job, and there was no loss of Ford wages which could be traced to the injuries received in the accident.

Appellant calls our attention to the Committee's General Comment to Withdrawal Instructions, MAI 34.01 (1981 3d ed.), which describes the office of the withdrawal instruction as follows:

A withdrawal instruction is only to be given when during the course of the trial a false issue, improper evidence, or evidence of an abandoned issue has been injected. The purpose of a withdrawal instruction may be served by the court sustaining a motion to strike and admonishing the jury to disregard the evidence. However, in certain instances, the trial court may determine that such action is inadequate, inappropriate or untimely and that a written instruction is necessary.

The court may properly give a withdrawal instruction when it has received evidence upon an issue which is later abandoned either by choice or by reason of inadequate proof for final submission to the jury. The instruction to be given is ...


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