Garnac Grain Co. v. Blackley

ARNOLD, Circuit Judge We have before us a petition for rehearing filed by Peat, Marwick, as well as Garnac's response to it.
The petition is limited to one point: whether our panel opinion, filed on May 17, 1991, erred in stating that the defense
of contributory negligence (a complete defense at common law) no longer exists in Missouri in cases, like the present one,
to which the Uniform Comparative Fault Act does not apply. We think the point is well taken. Our discussion of contributory negligence, and our view that it no longer existed as a
defense in cases like the present one, was based on our reading of Murphy v. City of Springfield, 738 S.W.2d 521, 529-30 (Mo.
App. 1987). As Peat, Marwick has now pointed out, a subsequent opinion in the same case, 794 S.W.2d 275 (Mo. App. 1990) (Murphy
II), creates some doubt about our reading of Murphy I. We are left in a state of uncertainty and believe that the prudent
course is to withdraw the remark about the defense of contributory negligence that we made in the original opinion, and leave
the issue to the District Court in the first instance, if it should recur during proceedings on remand. Accordingly, our discussion
of contributory negligence as a complete defense is withdrawn. We intimate no view as to the proper answer to this question.