Kiley, Kerner and Pell, Circuit Judges.
On the morning of July 29, 1966, at about 5 a.m., in the state of Missouri, an automobile driven by one Mary Hortman in which Albert Hortman and Ester Hortman, father and son, being plaintiff's decedents herein, were passengers, collided with a tractor-trailer of defendant Stahly Cartage Company, driven at the time by the defendant, John W. Henderson. As a result of the collision, Albert and Ester Hortman, as well as the driver of the vehicle in which they were passengers, were killed. The deceased persons as well as the other occupants of the automobile were residents of Wisconsin and Stahly was an Illinois corporation with its principal office in Illinois. A wrongful death action was filed by the plaintiff special administratrix in the Northern District of Illinois. The district judge dismissed the action insofar as the claim arising out of Albert Hortman's death was concerned but permitted the case to go to the jury in regard to the claim arising from the death of Ester B. Hortman. The jury returned a verdict for both defendants.
Error is claimed in three respects on this appeal but we find validity in only one of the three asserted grounds.
The accident having occurred in Missouri, the law of that state was controlling on substantive matters. Hortman contends that the jury was not adequately instructed on the Missouri Humanitarian Doctrine. Plaintiff tendered an instruction incorporating the applicable portion of the Missouri statute, 16 Vernon's Ann.Mo.Stat. § 304.010, which reads as follows:
"1. Every person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care."
Plaintiff's tendered instruction was given by the court but the court refused to add as an additional paragraph to the tendered instruction the following:
"You are further instructed that under the aforementioned statute, it is the duty of an operator of a motor vehicle, after receiving notice that a collision is imminent, to use all means within his power to avoid such collision, if this can be done with reasonable safety to himself."
In our opinion the jury was adequately advised as to the law of the State of Missouri and the additional tendered paragraph was merely argumentative and was properly refused by the court.
Further, it is to be noted that the additional paragraph tendered fails to include all of the elements of the Humanitarian Doctrine as contained in the Missouri approved jury instructions, Instructions 17.14 , and the tendered paragraph therefore might well have been confusing rather than helpful to the jury.
Hortman also contends that the claim arising out of the death of Albert Hortman was improperly dismissed. In dismissing, the district judge relied on Hortman's counsel's admission that the only pecuniary damages were funeral expenses and that there had been recovery from the insurer of the automobile in which Albert Hortman was a passenger in excess of those expenses. In Missouri it has been held that while concurrent negligence gives a cause of action against each participant, in such case there can be but one satisfaction and when there has been a satisfaction, that completes the remedy. Myers v. Kennedy, 306 Mo. 268, 281, 267 S.W. 810, 814-815 (1924). On this appeal Hortman has failed to show any error in the dismissal of the Albert Hortman claim.
The third claimed basis of error was that the district judge over objection permitted Henderson to testify regarding the facts and circumstances of the accident. In this respect Hortman contends that Henderson was incompetent as a witness because of the necessary applicability of the Illinois "dead man" statute, Ill.Rev.Stat. Ch. 51, § 2 (1969), pertinent portions of which read as follows:
"No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, * * * when any adverse party sues * * * as the * * * administrator * * * of any deceased person * * * unless when called as a witness by such adverse party so suing * * * and also except in the following cases, namely:
While the substantive law of the State of Missouri was controlling on the district court in the trial, the matter of competency of the witness to testify has to be determined under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. Rule 43(a), Federal Rules of Civil Procedure. Since the trial was held in the Northern District of Illinois, ...