Brown v. Thomas
| Decision Date | 22 September 1958 |
| Docket Number | No. 7729,7729 |
| Citation | 316 S.W.2d 234 |
| Parties | Daisie BROWN, Plaintiff-Appellant, v. Dorothea M. THOMAS, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Orville C. Winchell, Lebanon, for plaintiff-appellant.
Glenn A. Burkart, Mann, Walter, Powell, Burkart & Weathers, Springfield, for defendant-respondent.
Plaintiff's Chevrolet and defendant's Buick having battled to a draw for possession of a highway lane, plaintiff brought suit for consequent damages and now appeals from a judgment based on a verdict for the defendant.
The petition charged several grounds of negligence. The answer was in effect a general denial of the negligent acts charged to the defendant, followed by a plea of contributory negligence in general terms. This answer was filed and served on March 21, 1957. No motion to make more definite was filed.
Motion for new trial: When trial began on November 22, 1957, and after a jury panel had been sworn and examined by the court, the plaintiff's attorney requested a ruling as follows: 'Before we start to empanel this jury I would like to ask this request of the court: I would like for Mr. Burkart to specifically enumerate the grounds of contributory negligence which he has set up just generally in his answer.' On objection that 'the request comes too late,' the request was refused. Appellant assigns error in respect to this ruling.
We note the request came several months after the time allowed by the Code for the filing of motions and responsive pleadings. Sec. 509.330; Supreme Court Rule 3.13. 1 And since it came on commencement of trial it can hardly be said that the purpose of the request was to enable the plaintiff to prepare responsive pleadings or to prepare generally for trial, as is provided in Sec. 509.310. And it affirmatively appears that plaintiff failed to make known to the court the grounds of her request. Sec. 510.210. The 'request' by plaintiff does not question any of the pleadings as such or ask that anything be done in respect to such pleading. As we view it, such request was an attempt to seek the discretionary indulgence of the court in some character of oral discovery so that plaintiff might more expeditiously try the case.
But even though we consider the request as a motion to make more definite, which is 'the only proper method of attack on a petition which pleads general negligence' (Allen v. St. Louis-San Francisco Railroad Co., Mo., 297 S.W.2d 483, 486; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654), we are of the opinion that we cannot consider the assignment because the claim of error is nowhere mentioned in the motion for new trial. With certain exceptions, one of which is the question of the sufficiency of the pleadings to state a claim or defense, allegations of error, in order to be presented for appellate review, must be first presented to the trial court in a motion for new trial. Supreme Court Rule 3.23; Horrell v. St. Louis Public Service Co., Mo., 277 S.W.2d 612; State ex rel. and to Use of Hickory County v. Davis, Mo., 302 S.W.2d 892. For one of the fundamentals is that the trial court shall be given a change to correct its own errors before the assistance of an appellate court may be invoked. Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243; Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34.
But the appellant has argued that the request should be considered as an attack upon the sufficiency of the answer. The exception applicable to motions for new trial is the insufficiency of the pleading to state a defense (so that the pleading is subject to a motion in the nature of demurrer or motion for judgment). A plea of general negligence is sufficient to state a defense of contributory negligence even though the defendant may be required, on proper motion, to plead more definite facts. Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87; Martin v. Turner, Mo., 306 S.W.2d 473; State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. A motion to make more definite is in effect a concession that the pleading is sufficient to state a cause of action or defense and an appeal for relief because of the injustice of stating it in the manner pleaded. Graves v. Dakessian, Mo., 132 S.W.2d 972; Sartin v. Springfield Hospital Ass'n, Mo., 195 S.W. 1037; Allen v. St. Louis-San Francisco Railroad Co., supra, 297 S.W.2d 483. Indeed, the motion and its ruling is not a part of what was formerly the record proper but was a subject to be included in the bill of exceptions and complained against in the motion for new trial. Graves v. Dakessian, supra, 132 S.W.2d 972; Garnett & Allen Paper Co. v. Midland Pub. Co., 156 Mo.App. 187, 136 S.W. 736; Hayden v. Grillo, 26 Mo.App. 289. As we view it, plaintiff's claim of error in respect to the ruling on her request is not preserved for us (see Winslow v. Sauerwein, 365 Mo. 269, 282 S.W.2d 14) and there is nothing in the record (nor does plaintiff so contend) which calls for the application of Supreme Court Rule 3.27. This assignment is overruled.
Another of appellant's complaints is that the court erred in urging the jury, which had been deliberating some time and was having difficulty in agreeing, to reach a verdict. This assignment also cannot be considered, because there is no complaint of such action in the motion for new trial. Neither was an objection made to such action of the court at the time, nor was there any motion for a mistrial. See cases cited post on failure to object.
Failure to object: Two of appellant's complaints are in respect to the conduct of the court. In one instance the foreman of the jury inquired, 'The jury would like to know if both of these cars were insured.' After a conference with counsel out of hearing of the jury, the court told the jury that it was not permitted to answer the question and that they would be guided by the evidence and the instructions. In the other instance the jury first returned a verdict, on the provided form, in favor of plaintiff, with damages 'none.' After inquiry of the jury and being informed by both the foreman and several of the jurors that 'we meant there is no judgment to be given for either side,' and 'we found them both a little in the blame, both negligent, no judgment for either side,' the court sent the jury out with instructions to write their own verdict. After this they returned with a verdict for defendant in regular form. In neither of these instances did the appellant object or move for mistrial at the time of the occurrence. Neither of them was complained of until after the final verdict had been returned and announced.
If a litigant is to (later in the appellate court) complain of the action of the trial court in the conduct of a trial, he must make his objection to the action which he deems to be improper, or must make his request for the action or ruling which he believes to be called for in the circumstances. This objection or request must be 'timely,' that is, it must be made when the occasion for the ruling desired first appears in order that the matter may be called to the attention of the court, so that the court may have opportunity to correct, or set right, that which is (later to be) claimed to be wrong. Failure so to object or so to move, when the opportunity presents itself, is a waiver of the claimed error. 4 C.J.S. Appeal and Error Sec. 246, pp. 764-765; Longworth v. Kavanaugh, 286 Mo. 546, 228 S.W. 83; Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718; Broome v. Wright, 15 Mo.App. 406, 410; State v. Baker, Mo., 293 S.W.2d 900, 906; State v. Whitaker, Mo., 275 S.W.2d 316, 321; State ex rel. State Highway Commission v. Bengal, Mo.App., 124 S.W.2d 687; Seniff v. City of Hannibal, Mo.App., 245 S.W. 197. One cannot sit by and gamble on the outcome and, if he loses the gamble, then, for the first time, make a tergiversating objection. If he chooses to gamble he must abide his wager. State ex inf. McKittrick ex rel. Chambers v. Jones, 353 Mo. 900, 185 S.W.2d 17, 22; State v. Blair, Mo.App., 280 S.W.2d...
To continue reading
Request your trial
-
Chapman v. King
...Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, 536(15); Fischman v. Schultz, Mo.App., 55 S.W.2d 313, 319(9).13 Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217(5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539; St......
-
La Plant v. E. I. Du Pont De Nemours & Co., 7872
...only the questioned portion of the instruction, in which event it shall be sufficient to set forth only the latter.' See Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237(9). But, considered on its merits, this point is without Finally, DuPont attacks plaintiff's instruction 2 on the measure of......
-
Anderson v. Welty, 7793
... ... Brown v. Thomas, Mo.App ... Page 140 ... 316 S.W.2d 234, 237(9)] and the further fact that, in support of this assignment, defendants' counsel have ... ...
-
State ex rel. State Highway Commission v. Warner
...Rule 83.05(a), the point is not preserved and presented properly and, for this reason alone, might be disregarded. Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217(5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539. M......