Alexander v. Hoenshell

• Citation: 66 S.W.2d 164
• Decision Date: 04 December 1933
• Docket Number: 17611
• Parties: ALEXANDER v. HOENSHELL.
• Court: Court of Appeals of Kansas

66 S.W.2d 164

ALEXANDER v. HOENSHELL.

No. 17611

Court of Appeals of Missouri, Kansas City

December 4, 1933

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

“ Not to be published in State Reports.”

Action by Agnes Alexander against E. E. Hoenshell. Judgments for plaintiff, and defendant appeals.

Reversed and remanded.

Franken & Timmons, of Carrollton, and Chapman & Chapman, of Chillocothe, for appellant.

Thomas & Thomas, of Carrollton, and Harry L. Thomas and Fred W Lewis, both of Kansas City, for respondent.

OPINION

TRIMBLE, Judge.

Appellant herein is sued, in two counts, for damages arising from a collision between plaintiff’s model A Ford sedan (vintage of 1929) and defendant’s Buick master 6 sedan (1923), alleged to have been caused by defendant’s negligence. The collision occurred on the concrete highway, 18 feet wide, known as United States Highway No. 36, near Miller’s Filling Station located on the north side of said highway at a point immediately southeast of the city of Breckenridge in Caldwell county, Mo.

The first count is to recover damages for bodily injuries; the second is for damages to her automobile. The cause of action in each count is the same; the one in the first count only is stated herein as being sufficient for the purpose of disposing of the matters contained in this opinion. The answer to each count was a general denial coupled with a plea of contributory negligence. The reply was a general denial.

The case was originally set for argument on October 6, 1932, at our October term of that year. More than ten days prior to that date respondent filed motion to dismiss appeal on the ground that appellant’s abstract did not show any exceptions to the overruling of the motion for new trial, such action being pursuant to the amendment of March 3, 1924, to our rule 15. The case was continued to the March term, 1933, and afterwards was set for hearing on March 9 of that term. On February 17, 1933, appellant filed abstract showing that the overruling of the motion for new trial was excepted to. Respondent claims that on January 13, 1933, at the January term of the circuit court of Carroll county, Mo. (in which court this case was tried), on motion filed December 14, 1932, pursuant to notice given respondent on December 1, 1932, the trial court ordered that the original bill of exceptions which was filed on September 1, 1932, be amended so as to show the action of the court in overruling the demurrer to the evidence filed by appellant; also to show all of the instructions asked, together with the action of the court therein and the exceptions thereto saved by either party, the motion for new trial and the overruling thereof, with defendant’s exception thereto, and the affidavit for appeal, which matters now appear in the bill of exceptions, together with the judge’s signature under date of January 19, 1933, and in the abstract served and filed in proper time for the hearing at the March term, 1933, at which the case was argued and submitted, and in which an opinion was written, but, on a motion for that purpose, a rehearing was granted and the appeal again heard at the October term, 1933, and thereafter the case was duly assigned, or fell, to the author.

In our view, the trial court committed no error in permitting the completion, or amendment and the filing, of the bill of exceptions on January 19, 1933, for the appeal then stood to appear on our March term of that year the same in all respects as if it were then here for the first time; for, ever since the amendment of section 2029, R. S. Mo. 1909 (now section 1009, R. S. Mo. 1929 [Mo. St. Ann. § 1009, p. 1278]), Laws of Mo. 1911, p. 139, an appellant could have his bill of exceptions allowed, signed, and filed in the trial court at any time before he was required to serve his abstract of the record on opposing counsel, as required by the rules of the appellate court. Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008. This case holds that such an order is not a nunc pro tunc entry, but an original order or judgment made as of and at the time the order is entered. See State ex rel. v. Caruthers (Mo. App.) 51 S.W.2d 126. But regardless of whether the trial court’s action was right in this particular case, no exceptions were saved to the trial court’s action in completing, or allowing the bill of exceptions to be completed, and filed after the same was completed; nor was any bill of such matters filed nor appeal taken from the trial court’s order. Hence we are without authority to disturb that order or judgment. State ex rel. v. Caruthers (Mo. App.) 51 S.W.2d 126, 129; Hampe v. Versen, 224 Mo.App. 1144, 32 S.W.2d 793; Id. (Mo. App.) 32 S.W.2d 797, 798; State ex rel. v. Cox, 315 Mo. 1332, 1335, 1336, 289 S.W. 869. Moreover, none of the things occurring in the trial court, of which respondent here complains, were preserved in a bill of exceptions, and they are not reviewable for this reason. Bullock v. B.R. Electric Supply Co. (Mo. App.) 60 S.W.2d 733, 735; Harlan v. Moore, 132 Mo. 483, 491, 34 S.W. 70. The point that the appeal must be dismissed is therefore disallowed.

The petition alleged:

That plaintiff was, on April 13, 1930, traveling west in her car, exercising due care and riding on the right-hand or north side of said road, and that defendant was driving east on the south side of said road in his large and heavy 7-passenger automobile, and that defendant, just at the time, or immediately before the time, when he reached the point on said pavement immediately south of the car in which plaintiff was riding, "then and there negligently and carelessly turned his car to the left and north and at right angles and started across said pavement to the north and then and there negligently and carelessly ran, drove and operated said car so owned by said defendant, and which he was then and there driving, into, upon and against the automobile in which plaintiff was riding striking said car in which plaintiff was riding, with a sudden violent blow on the left side and immediately back of the front wheels with the left front wheel of defendant’s said car and the fender thereof;

"That by reason of defendant so carelessly and negligently driving his said car upon, over and against the said car in which plaintiff was riding, as aforesaid, the car in which plaintiff was riding was turned over three times and that by reason thereof, plaintiff was violently hurled, pushed and thrown against the sides and other parts of said car in which she was riding, whereby she sustained the following serious, permanent, and grievous injuries and conditions, to-wit." (Here follows a statement of said injuries, but, as no contention is made as to them, their extent or the amount of the verdict, they are not set forth.)

The petition contained the following further statements or allegations:

"That all of said injuries and conditions were directly caused by the negligence and carelessness of the defendant as herein set out and because of the fact that said defendant negligently and carelessly drove and operated his said automobile in the manner and under the conditions above set out and because said defendant without warning to plaintiff or those in the car with her, made a sudden left-hand turn of his car so being driven by him upon and against the car in which the plaintiff was riding, as aforesaid, and because said defendant drove and operated his said automobile at right angles across the left-hand side of the road and upon and against the car in which plaintiff was riding, when defendant saw or by the exercise of ordinary care could have seen and known that by so doing he would drive his said car directly against the car in which plaintiff was riding. ***"

"That defendant negligently and carelessly failed to give any signal or warning of his intention to make a sudden left-hand turn upon and against the car in which plaintiff was riding, as aforesaid.

That defendant negligently and carelessly failed to keep any or a sufficiently reasonable vigilant and careful lookout for plaintiff or other persons on said highway.

That defendant, while so operating his said automobile at the time and place aforesaid, without exercising due care, failed to stop said defendant’s said car or to slacken the speed thereof before running the same onto and against the car in which plaintiff was riding and carelessly and negligently and at said time and place, without exercising due care, failed to change the course of the car in which he was riding so as to prevent the same from running upon, into and against the car in which plaintiff was riding, when by exercising due care, defendant either knew or by the exercise of due care, could and would have known that unless he slackened the speed of his automobile or changed the course thereof that he would run the same into, upon and against the car in which plaintiff was so riding and when by the exercise of due care, said defendant could have seen the car in which plaintiff was riding approaching the path of defendant’s said car in a place of danger in front of defendant’s car and when at said time and place, defendant saw or by the exercise of due care on his part could have seen the car in which plaintiff was riding in the path of defendant’s car or in a dangerous place in front of defendant’s said car at a time when plaintiff’s said car was far enough away from the car in which plaintiff was riding as that defendant by the exercise of due care on his part could have stopped defendant’s said car, slackened the speed thereof or changed the course of the car, thereby to have prevented and avoided the above described injuries to plaintiff."

The petition then alleged that, by reason of the facts aforesaid plai...