Cook v. Day

• Decision Date: 27 August 1943
• Docket Number: No. 37703.,37703.
• Citation: 172 S.W.2d 648
• Parties: COOK v. DAY et al.
• Court: Missouri Supreme Court

172 S.W.2d 648

COOK v. DAY et al.

No. 37703.

Supreme Court of Missouri, Division No. 2.

August 27, 1943.

Appeal from Circuit Court, Scott County; James C. McDowell, Judge.

Action by Nina Cook against F. M. Day and another to recover damages arising out of an automobile collision, wherein the defendant Day filed a counterclaim. Verdicts for defendants on plaintiff's petition, and for plaintiff on the counterclaim. Judgment accordingly, and plaintiff appeals.

Affirmed.

Merrill Spitler, of New Madrid, for appellant.

Blanton & Montgomery, of Sikeston, for respondents.

BOHLING, Commissioner.

This review involves an automobile collision at a right angle intersection of two streets. Nina Cook instituted the action against F. M. Day and Albert Davis. Her private car and Day's truck, operated by Davis, his employee, were involved. She sought a judgment of $10,125. The separate answers embraced general denials and affirmative defenses of plaintiff's contributory negligence. Mr. Day's pleading included a counterclaim for $250. The verdict was for defendants on plaintiff's petition and for plaintiff on defendant Day's counterclaim. Judgment accordingly. The case reaches the writer upon reassignment.

Under points and authorities in plaintiff's brief, we find a number of abstract legal propositions supported by the citation of authorities and not further developed with respect to the instant review. They are insufficient to call for a discussion of any of the several issues that might fall within the wording of such abstract statements. Kleinschmidt v. Globe-Democrat Pub. Co., Mo.Sup., 165 S.W.2d 620, and cases cited; Huber v. Jones, Mo.Sup., 85 S.W.2d 418. Examining plaintiff's petition ex gratia, for instance, we find no sufficient pleading of a humanitarian case. Perhaps this accounts for the court's refusal to submit such an issue to the jury. If so, there was no error.

Plaintiff's brief here does not call for an extended review of the facts. Much of plaintiff's argument is devoted to the facts, plaintiff contending her evidence could not be disregarded entirely. This refers to plaintiff's case made. Plaintiff had the burden of proof with respect to her case. The testimony was oral. It was conflicting. The credibility of her witnesses was for the jury. The jury found against her. Plaintiff's contention is not the law. Cluck v. Abe, 328 Mo. 81, 84[1-4], 40 S.W.2d 558, 559[1-5].

The truck was to plaintiff's right and there was evidence that it approached the intersection ahead of but at a slower speed than plaintiff's car. See Sec. 8385, R.S. 1939, Mo. R.S.A. It was not necessarily inconsistent, as claimed by plaintiff, for defendants' instruction to tell the jury that if plaintiff failed to stop, slow down, or swerve or if plaintiff failed to operate her automobile as near the right-hand side of the street as practicable, et cetera, and...