Jeannette Kay Pittock v. John William

This action was instituted by plaintiff and her infant son to recover damages for personal injuries resulting from an automobile
collision. Defendant, executor of the estate of Mary Loomis Gibson, filed a counterclaim against Mrs. Pittock seeking damages
for decedent's alleged wrongful death. See Section 537.080(3). 1 The jury found for defendant on plaintiffs' claims and
also returned a verdict for defendant in the sum of $3,000 on the counterclaim. No appeal was taken by the son but Mrs. Pittock
(hereinafter referred to as "plaintiff") appealed to the Springfield District of the Court of Appeals. On appeal plaintiff contends that the trial court erred in giving Instructions 6, 8 and 12. The appeals court concluded that
No. 6 was not prejudicially erroneous and that it was unnecessary to consider 8 and 12 because they related to the counterclaim.
Sua sponte the court held that the counterclaim did not state a claim for relief and that the evidence would not support a
wrongful death claim. The judgment was reversed and the cause remanded with certain directions which need not be recited here.
Upon application of plaintiff we ordered the case transferred and will decide it here the same as on original appeal. Art.
V, Sec. 10, Mo. Const., V.A.M.S. We granted transfer because we were concerned about the effect of the 1973 revision of MAI
17.13 upon the contents of contributory negligence Instruction No. 6. We affirm the judgment for defendant on plaintiff's
claim and reverse the judgment on the counterclaim.