Cragin v. Lobbey

• Decision Date: 06 May 1976
• Docket Number: 9888,Nos. 9887,s. 9887
• Citation: 537 S.W.2d 193
• Parties: Opal CRAGIN and Harold Cragin, Plaintiffs-Respondents, v. Ellen LOBBEY, Defendant-Appellant, and Alvin Hinkle, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 193

537 S.W.2d 193

Opal CRAGIN and Harold Cragin, Plaintiffs-Respondents, v. Ellen LOBBEY, Defendant-Appellant and Alvin Hinkle, Defendant-Appellant.

Nos. 9887, 9888.

Missouri Court of Appeals, Springfield District.

May 6, 1976.

Rehearing Denied May 27, 1976.

Ross T. Roberts, Roberts & Fleischaker, Joplin, for plaintiffs-respondents.

John R. Martin, Blanchard, Van Fleet, Martin, robertson & Dermott, Joplin, for defendant-appellant Ellen Lobbey.

Ralph E. Baird, Joplin, for defendant-appellant Alvin Hinkle.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

Plaintiffs, husband and wife, were passengers in an automobile operated by defendant Hinkle when it figured in a collision with a vehicle driven by defendant Lobbey. Plaintiff wife sued defendants for damages allegedly caused by injuries received in the accident; plaintiff husband joined in suing defendants on his averred action per quod consortium amisit. The jury returned verdicts in favor of both defendants. Plaintiffs filed separate motions for new trials. Although blessed with a verdict in his favor and apparently relying on Rule 72.01(b), ¹ defendant Hinkle separately moved 'to have judgment entered in accordance with his motion for a directed verdict.' The court nisi overruled defendant Hinkle's motion and sustained 'Plaintiffs' motion (sic) for a New Trial (because) there was an error in giving Instructions 7 and 9, and for the further reason that the verdict is against the weight of credible evidence.'

First, to winnow the chaff. Defendant Hinkle's notice of appeal recites that he 'appeals from the order overruling (his) separate motion . . . to have judgment entered in accordance with his motion for a Directed Verdict and sustaining Plaintiff Opal Cragin's Motion for New Trial.' We make no determination of the propriety vel non of defendant Hinkle's after-trial motion under the circumstances existing when it was filed. It suffices to observe again that 'The right of appeal shall be as provided by law' (rule 81.01), and if an appeal is not authorized by statute we must, ex mero motu, notice this court's lack of appellate jurisdiction in the cause. That part of Hinkle's notice appealing from the order overruling his motion for judgment in conformity with his motion for directed verdict is a nullity because an appeal from such an order is not authorized by § 512.020. It does not constitute 'any final judgment in the case or . . . any special order after final judgment' within the meaning of the statute. Powell v. Watson, 516 S.W.2d 51, 52(1--3) (Mo.App.1974). This being so, the points relied on by defendant Hinkle in his brief on appeal which complain of the trial court's ruling on his after-trial motion need not and shall not be considered.

What of the second part of Hinkle's notice of appeal? A negligently inflicted injury to a wife gives rise to two distinct, separate and independent causes of action--one in favor of the wife for damages because of her injuries and another in favor of the husband for damages sustained on account of the loss of his wife's companionship, society and services. The causes of action are separate and each is an entirety unto itself. Rea v. Feeback, 244 S.W.2d 1017, 1019 (Mo.1952). And while Rule 66.01(c) requires the two causes of action to be filed jointly (Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635, 641 (Mo. banc 1964)), the rights of action are not merged into one but remain separate and distinct. Robben v. Peters, 427 S.W.2d 753, 757(5) (Mo.App.1968): 1 C.J.S. Actions § 113a. (5), at p. 1376. Unlike the parties to these appeals, who stand mute on the subject, the wary reader will have observed that defendant Hinkle appealed only from the order granting plaintiff wife a new trial. He did not, and indeed now cannot, appeal from the order which granted plaintiff husband a new trial on his separate and distinct cause of action. Where only a part of a separable judgment or order is appealed from, the remainder is unaffected and is not brought into the appellate court. Anthony v. Morrow, 306 S.W.2d 581, 583(3) (Mo.App.1957); Grignon v. Wechselberger, 70 Wash.2d 99, 422 p.2d 25, 26(1) (1966); Territory of Hawaii by Choy v. Damon, 44 Haw. 557, 356 P.2d 386, 390(6) (1960), cert. denied, 368 U.S. 838, 82 S.Ct. 40, 7 L.Ed.2d 38; 4 A C.J.S. Appeal and Error § 608, p. 399. Therefore, defendant Hinkle's failure to appeal from the order granting plaintiff husband a new trial on his separate cause of action leaves that portion of the husband's action in the trial court and out of our hands.

To complete the task of chaff riddance, one of defendant Hinkle's points on appeal attacks the claimed error of the trial court in overruling his motion for directed verdict at the close of plaintiff's evidence. In so doing, defendant Hinkle overlooks the fact that he waived his right to complain of any such error by introducing evidence of his own after denial of the motion. Daniels v. Smith, 323 S.W.2d 705, 706(1) (Mo.1959); Pasley v. Newton, 455 S.W.2d 43, 46--47(2) (Mo.App.1970); Hoevelman v. Reorganized Sch. D. R2 of Crawford County, 452 S.W.2d 298, 300(2) (Mo.App.1970); Jacobs v. Frangos, 329 S.W.2d 262, 264(1) (Mo.App.1959).

Four verdict-directing instructions were given for plaintiffs. No. 2 for plaintiff wife and No. 6 for plaintiff husband called for verdicts for the respective plaintiffs against defendant Lobbey if the jury believed that 'defendant Lobbey either: failed to keep a careful lookout, or drove at an excessive speed.' Instructions No. 4 and No. 8 respectively directed verdicts for plaintiff wife and plaintiff husband 'against defendant Hinkle if you believe: First, defendant Hinkle failed to keep a careful lookout.' Four converse instructions followed the verdict-directing charges. Each pair was identical, with the bracketed words indicating the only difference. Instructions numbered 3 and 7 for defendant Lobbey: 'Your verdict must be for defendant Ellen Lobbey on plaintiff Opal Cragin's (Harold Cragin's) claim unless you believe that defendant Ellen Lobbey was negligent as submitted in Instruction No. 2(6) and that plaintiff Opal Cragin (Harold Cragin) sustained damage as a direct result thereof.' For defendant Hinkle, instructions numbered 5 and 9: 'Your verdict must be for defendant Hinkle on plaintiff Opal Cragin's (Harold Cragin's) claim for damages unless you believe that defendant Hinkle was negligent (and that, Plaintiff Harold Cragin sustained damages as a direct result thereof).'

The foregoing discloses that instructions 3 and 7 given for defendant Lobbey and instructions 5 and 9 given for defendant Hinkle constituted the giving of two converse instructions on behalf of each defendant which conversed every element of plaintiffs' theory of recovery. This was error, as correctly recognized by the trial court, for the only additional converse instructions properly allowable to the defendants should have been limited and directed to those items necessary to meet the plaintiff husband's separate claims for derivative damages. Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366, 370--371(4, 5) (Mo.App.1974).

Defendants do not contest the ruling as to instruction error. Rather they claim, in effect, that any error which may have occurred in charging the jury was of no consequence because the trial court erred in overruling their motions for directed verdict at the close of all the evidence, as the plaintiffs made no submissible case. Bohler v. National Food Stores, Inc., 425 S.W.2d 956, 959 (Mo.1968). Where, as here, the trial court sets aside the verdicts and judgment for defendants and grants plaintiffs a new trial on the ground the verdicts were against the weight of the credible evidence, we need to examine the record to ascertain if there was substantial evidence to support verdicts for the plaintiffs. If not, we may hold the order of the trial court to be an abuse of discretion. Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107(1) (Mo.1973).

The casualty occurred on commencement day at Missouri Southern State College in Joplin at the intersection of north-south four-laned Range Line Road (U.S. Highway 71) and east-west two-laned Newman Road. Traffic at the intersection was usually controlled by an overhead electrically operated signal which, at the time of the collision, flashed 'red' or 'stop' for Newman Road traffic and 'yellow' or 'caution' for vehicles traveling Range Line. § 304.301. Defendant Hinkle was driving west on Newman Road and crossing the intersection when the front of defendant Lobbey's automobile then being operated south in the west or outside lane for southbound traffic on Range Line, struck 'the right rear fender' of the Hinkle car 'right over the wheel.'

Plaintiffs had attended the afternoon commencement exercises in the company of defendant Hinkle et uxor and a visiting Floridian. At the conclusion of the college festivities, plaintiffs et alii repaired to the Hinkle car. Plaintiffs and Mrs. Hinkle were seated on the rear seat; defendant Hinkle (the driver) and the visitor occupied the front seat. The vehicle departed the college grounds as part of a steady stream of westbound traffic traveling Newman Road enroute to the intersection in question. Those in the back of the Hinkle car busied themselves looking at snapshots supplied by the front seat passenger. Because of her preoccupation with the photographs, plaintiff wife did not know the speed of either of the involved vehicles, where in the intersection the accident occurred, whether or not the Hinkle car stopped before entering the intersection, or what the other westbound traffic was doing when it reached the intersection. Plaintiff wife first said she had not seen the Lobbey automobile until 'seconds before the impact,' but amended this on cross-examination to 'just a fraction of a second before the impact;' she did not undertake to describe the location of the...