Anthony v. Morrow

• Decision Date: 05 November 1957
• Docket Number: No. 29690,29690
• Citation: 306 S.W.2d 581
• Parties: Winifred Smith ANTHONY (Plaintiff), Respondent, v. James H. MORROW and Gustaff Kurrich, Defendants, Gustaff Kurrich, Appellant.
• Court: Missouri Court of Appeals

Page 581

306 S.W.2d 581

Winifred Smith ANTHONY (Plaintiff), Respondent, v. James H. MORROW and Gustaff Kurrich, Defendants, Gustaff Kurrich, Appellant.

No. 29690.

St. Louis Court of Appeals, Missouri.

Nov. 5, 1957.

Rehearing Denied Dec. 2, 1957.

Alexander & Robertson, L. A. Robertson, and George W. Perry, St. Louis, for appellant Gustaff Kurrieh.

Morris B. Kessler, Ben F. York, St. Louis, for respondent.

ANDERSON, Judge.

This is a negligence action instituted by plaintiff, Winifred Smith Anthony, against James H. Morrow and Gustaff Kurrich. In said action plaintiff sought to recover damages for personal injuries sustained by her as the result of a collision between a pickup truck being driven by defendant Kurrich, in which truck she was a passenger, and an automobile being operated by defendant Morrow. Defendant Kurrich filed a cross claim against defendant Morrow in which he sought to recover damages for personal injuries. The prayer of said cross claim was for $15,000 damages. Defendant Morrow filed a cross claim against defendant Kurrich in which he claimed damages for personal injuries in the sum of $5,000. The trial resulted in a verdict for plaintiff on her cause of action in the sum of $6,500 against both defendants, in favor of defendant Morrow on Kurrich's cross claim, and in favor of defendant Kurrich on the cross claim of defendant Morrow. Defendant Kurrich has appealed.

It is suggested by respondent that this court does not have jurisdiction of the appeal for the reason that the amount in controversy, exclusive of costs, exceeds the sum of $7,500. In this connection, it is pointed out that the amount in controversy is the sum of $6,500 awarded plaintiff on her cause of action, plus $15,000--the amount prayed for in appellant's cross claim against defendant Morrow.

There can be no doubt that if the cross claim of defendant Kurrich were before us the jurisdiction of the appeal would be in the Supreme Court. Levin v. Caldwell, Mo.Sup., 285 S.W.2d 655. However, by reference to the notice of appeal it will be seen that there was no appeal from the judgment on said cross claim. Said notice recites that Gustaff Kurrich appeals to the St. Louis Court of Appeals from the judgment 'in favor of plaintiff and against defendants entered in this action on the 27th day of March, 1956.' The notice of appeal makes no mention of that separate and distinct portion of the judgment which denied appellant relief on his cross claim. And, while it is true that notices of appeal are to be liberally construed with a view to deciding cases on their merits, Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, we are of the opinion that the notice in the case at bar contains nothing which indicates a good faith attempt to appeal from the entire judgment. The designation of that part of the judgment appealed from is so clear and unmistakable that it cannot be construed otherwise than to exclude that portion of the judgment denying relief to appellant on his cross claim. For that reason, that portion of the judgment which disposes of appellant's cross claim is not before us for review and cannot be considered in ascertaining the amount in controversy for the purpose of determining where the appeal lies. The amount in controversy here is $6,500.

In reaching the above decision, and in taking jurisdiction of the appeal from that portion of the judgment in plaintiff's favor, we have not overlooked the general rule that a party may not appeal from a part of a judgment. Gloria Lee Realty Co. v. Madigan, Mo.App., 243 S.W.2d 118; Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746. An apparent exception to this rule is recognized whereby an appeal will lie from a part of a judgment where that part is the result of the trial of issues distinct, entire, and severable from the other issues tried. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428. Such is the situation in the case at bar. Plaintiff's claim and appellant's cross claim are separate and distinct causes of action, and appellant should be allowed to appeal from either the entire judgment or that part thereof which disposes of his cross claim.

There is another reason why it cannot be said that the amount in controversy, exclusive of costs, exceeds the sum of $7,500. During his oral argument in this court appellant's counsel, on behalf of his client, voluntarily withdrew all complaints of error with respect to the trial of the issues raised by said cross claim.

The accident occurred on July 25, 1950, at the intersection of Bellefontaine and Chambers Roads in St. Louis County. Bellefontaine Road is a north and south thoroughfare. Chambers Road runs east and west. There is a stop sign for west-bound traffic on Chambers Road located about 30 feet east of the intersection. There is no stop sign at said intersection for northbound traffic on Bellefontaine Road. Bellefontaine Road is a two-lane highway. Chambers Road, at the intersection, has four lanes. At the southeast corner of the intersection there is a tree and some shrubbery. This shrubbery is also referred to as a hedge. Plaintiff testified that this shrubbery was about four feet high. Appellant said it was seven or eight feet high, and that it obstructed the view of traffic from the east for one traveling northwardly toward said intersection. In fact, he stated that one traveling northwardly could not see eastwardly down Chambers Road until he got into the intersection. However, defendant Morrow gave the following testimony: 'Q. Let's assume you were forty-five feet south of Chambers, could you look diagonally across to your right and see a car coming up there? A. Yes * * * I would say if you were back a couple of hundred feet you could still see him, coming up Bellefontaine Road, coming north on Bellefontaine Road, if you were a couple of hundred feet back from Chambers Road; you could still see into Chambers Road ten or fifteen feet when a car was coming up to the intersection. * * * I still say you could see back into Chambers Road, when you were one hundred feet south of Chambers. Q. And can you see that traffic approaching Bellefontaine Road as you near the south line of Chambers? A. Yes.'

Plaintiff testified that one driving north on Bellefontaine could see automobiles coming from the east on Chambers Road. She stated that she saw the Morrow car after it got to the stop sign and before it entered the intersection. From that time until the collision the Morrow car did not stop. She did not know where the two cars came in contact, but stated it was in the east lane of Bellefontaine Road. She stated that Morrow made a left turn in front of appellant's truck. Immediately before the accident she said to appellant: 'the fellow is going to hit us.' Appellant then put his foot on the brake.

Portions of a deposition of defendant Morrow were introduced into evidence by plaintiff. He stated that prior to the accident he was headed west on Chambers Road with the intention to turn south on Bellefontaine Road. Before proceeding into Bellefontaine he waited until some cars on Bellefontaine Road passed. There were cars traveling both north and south. The cars coming north were about fifty feet from the intersection. He then proceeded 'around the corner, when I got about ten or twelve inches from the grass part on the opposite side * * * the collision occurred; there was an automobile coming right when I stated to make my turn.' He stated that the front of his car was damaged from the fender to possibly the middle of the front door on the left side. When asked if, before the collision, he saw the truck that collided with his car, the witness replied: 'Well, not to recognize it, no; I just saw a bunch of machines coming up to the intersection, and they were about fifty feet from the corner, and so I just went on ahead.' He further testified that he observed the stop sign, right at Bellefontaine Road, and proceeded forward in low gear.

Plaintiff also introduced into evidence portions of a deposition of appellant. In said deposition appellant testified that as he proceeded north on Bellefontaine Road the speed of his truck was about 28 or 30 miles per hour. The right side of his truck was about three feet from the curb. He stated that he sounded his horn when he was 50 or 60 feet from Chambers Road. He slowed down to a speed of 20 miles per hour before he got to the intersection and before plaintiff spoke to him about the other car. At that time he was looking right out toward Chambers Road, but could see no machine coming. He stated that 'she screamed that a machine was coming and I put on my brakes.' The witness further testified: 'Q. How far from Chambers Road were you when you first put on your brakes? A. Oh, I was into Chambers Road a little * * * well, I was just about going in there, and as soon as I seen him, I had the right-of-way, you know, and he was coming out and he never stopped and we hit just like that; he never stopped; if he would have stopped, I could have passed him. * * * Q. How far was the automobile from you when you first knew he was coming out of Chambers Road? A. About 25 or 30 feet.' Appellant further testified that the collision occurred on the east side of Bellefontaine Road, and that he was going about 20 miles per hour, or a little less, at the time.

Emil Osthoff testified on behalf of appellant. He stated that he arrived at the scene of the accident shortly after it happened and talked to defendant Morrow. He testified that the latter stated he made the stop at Bellefontaine Road, looked toward the south and, seeing no one coming from that direction, pulled out into Bellefontaine when his car was hit by appellant's truck. He stated that the pickup truck was 'pretty well in the center of the road--Bellefontaine Road.' He thought the other car was on the west side of the road. The The pickup truck was facing northwest at somewhat of an angle to Bellefontaine...