Ensminger v. Stout, 22372

• Court: Missouri Court of Appeals
• Writing for the Court: DEW
• Citation: Ensminger v. Stout, 287 S.W.2d 400 (Mo. App. 1956)
• Decision Date: 06 February 1956
• Docket Number: No. 22372,22372
• Parties: Frank E. ENSMINGER, Respondent, v. James STOUT and W. T. Stout, Appellants.

Page 400

287 S.W.2d 400

Frank E. ENSMINGER, Respondent, v. James STOUT and W. T. Stout, Appellants.

No. 22372.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1956.

Vance Julian, Julian & Conrad, Clinton, for appellants.

Barkley M. Brock, Clinton, T. Bryant Johnson, Osceola, for respondent.

DEW, Presiding Judge.

Plaintiff's petition in this cause sought to recover damages alleged to have been incurred by the negligence of the defendants in causing the automobile owned by defendant W. T. Stout and operated by his agent James Stout to collide with the plaintiff's truck parked on State Highway 52 in Henry County, Missouri and prayed judgment for damages to said truck in the sum of $700. Each defendant filed a counterclaim. A jury was waived by the parties and the case was tried by the court. At the close of plaintiff's evidence the court sustained the motion of defendant W. T. Stout for a directed verdict and overruled a similar motion of the defendant James Stout. At the close of all the evidence the court found the issues in favor of the plaintiff on plaintiff's petition for $700, and in favor of the plaintiff and against both defendants on both counterclaims. After the judgment defendant James Stout moved to set aside the verdict and to enter judgment in his favor on the same ground set forth in his previous motions for a directed verdict and defendant W. T. Stout moved the court to set aside the judgment on his counterclaim and prayed that judgment be entered in his favor on the same for the same reasons set forth in his previous motions for a directed verdict. No ruling appears of record on the last two motions described, and defendants joined in a motion for a new trial, which was overruled. Thereupon, the defendants jointly appealed from the judgment entered on the day of the closing of the trial.

The petition alleged that on May 28, 1954, the plaintiff's 1949 half-ton pickup truck was parked on the side of the highway at a point on Missouri Highway 52 in Henry County near its intersection with Highway 13; that defendant James Stout was driving a 1950 Chevrolet automobile belonging to defendant W. T. Stout, and that defendant James Stout lost control of the Chevrolet and struck the plaintiff's 1949 Studebaker truck; that in particular, James Stout was negligent in failing to keep a proper lookout, driving at a reckless and unsafe speed under the circumstances, failing to exercise the highest degree of care to avoid hitting the truck, and failed to apply the brakes in proper time. It was further alleged that the defendant W. T. Stout was the owner of the Chevrolet, and that the defendant James Stout was operating it for and in his behalf. The petition concludes that as a direct and proximate cause of the above negligence of the defendants the plaintiff's truck was damaged in the sum of $700, for which plaintiff prays judgment.

In his answer the defendant W. T. Stout moved for dismissal of the plaintiff's petition for the reason that it fails to state facts sufficient to constitute a cause of action and, in the event such motion be not sustained, generally denied the plaintiff's allegations of negligence, admitted ownership of the Chevrolet sedan driven by his son defendant James Stout at the time in question, and denied that James Stout was at the time operating said vehicle for and in behalf of defendant W. T. Stout. The above separate answer further pleaded that the driver of the truck Paul Billings was agent and employee of the plaintiff and acting at the time within the scope of his employment; that said Billings parked the truck on Highway 52 carelessly and negligently in that he failed to exercise the highest degree of care and caution for the safety of plaintiff's property.

Defendant W. T. Stout also filed his counterclaim alleging, in substance, that the plaintiff's agent parked the plaintiff's truck with a portion thereof on Highway 52, and that the automobile of the defendant W. T. Stout was damaged in the sum of $850 when it collided with the rear of the plaintiff's truck; that Billings failed to keep his truck as far to the right side of the highway as practicable; failed to have proper taillights or warning lights on the rear of said truck, failed to keep a careful and vigilant lookout for other motor vehicles; failed to have on the parked truck a red light visible for a distance of 500 feet from the rear of the truck; failed to place warning light flares or signals to the rear of said truck, and that as a direct and proximate result of such carelessness and negligence, said defendant's automobile was damaged in the particulars therein specified, in the sum of $850.

The defendant James Stout, through his guardian ad litem W. T. Stout, separately moved to strike the plaintiff's petition for insufficiency, and denied the allegations of negligence in plaintiff's petition contained, but admitted that he was operating the Chevrolet sedan at the time and place, belonging to defendant W. T. Stout. For further answer defendant James Stout pleaded contributory negligence on the part of the plaintiff in that Billings, the driver of the truck, had parked the plaintiff's truck on the highway and failed to exercise the highest degree of care and caution for the safety of plaintiff's property. Defendant James Stout also filed his separate counterclaim, setting forth substantially the grounds of negligence contained in the counterclaim of the defendant W. T. Stout, and claimed personal injuries by reason of the negligence of the plaintiff in the sum of $3,000.

Plaintiff's reply was in the nature of a general denial of the new matter pleaded in the answers and counterclaims and pleaded the contributory negligence of the defendant James Stout.

Attached to the motion for new trial were certain affidavits pertaining to newly discovered evidence, mentioned in the motion for a new trial, which motion, as stated, was overruled.

Looking to our own jurisdiction, which we are required to do whether or not suggested by the parties, we note the record pertaining to the form of the judgment in this case, as to which neither party has taken exceptions. As we have said, the court sustained, at the close of plaintiff's evidence, the motion of the defendant W. T. Stout, and overruled a similar motion of defendant James Stout, for a directed verdict. Although a jury had been waived in the case this action of the court had the effect of determining the status of the defendant W. T. Stout, and said defendant was entitled, at the close of the case, to a judgment in his favor on the plaintiff's petition. However, the judgment of April 8, 1955, at the close of all the evidence was as follows:

'The Court: In this case the Court finds for the plaintiff and against the defendant James Stout for the sum of $700.00, and also finds for the plaintiff and against the defendants, both the defendants, on their counterclaims.

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'Judgment Entry

'Now on this 8th day of April 1955 comes the plaintiff in person and by his attorneys, T. Bryant Johnson and Barkley M. Brock, and the defendants appear in person and by attorneys, Vance Julian and Ted Conrad. Jury is waived by the parties, the evidence heard, and the court hereby finds the issues in favor of the plaintiff on the plaintiff's petition and assesses the plaintiff's damage at Seven Hundred Dollars ($700.00). The court finds the issues in favor of the plaintiff and against both defendants on each of the defendant's counter-claims."

It will be seen that the final judgment, on its face, does not recite that the court finds the issues in favor of the plaintiff on plaintiff's petition and against defendant James Stout only, nor that the assessment of damages of $700 is against defendant James Stout alone, but reads as if the finding and the assessment of damages were against both defendants on plaintiff's petition, leaving in the case and in the judgment and appeal the issue of the liability of defendant W. T. Stout on the plaintiff's petition. It is the judgment in an action that 'is the final determination of the right of the parties in the action'. Section 511.020, RSMo 1949, V.A.M.S.

Furthermore, the defendants joined in a motion for a new trial, praying that the verdict be set aside and that a new trial be granted, or, in the alternative, to take additional testimony and direct the entry of a new judgment. Also, both defendants joined in the appeal and the appeal is expressly taken from the judgment 'entered in this action on the 8th day of April, 1955'. That was the date of the judgment as entered at the close of all the evidence.

It is evident that this record presents an irreconcilable conflict which, if the judgment be considered strictly on its face, would create a doubt as to whether the issue of the liability of defendant W. T. Stout on plaintiff's petition is involved in this appeal.

However, considering the entire record, particularly those parts pertaining to the judgment, and giving to such record a broad and liberal construction, we assume that the trial judge, after sustaining, at the close of plaintiff's evidence, the motion of the defendant W. T. Stout for a directed verdict, intended, in the entry of judgment at the close of all the evidence, to find the issues on plaintiff's petition in plaintiff's favor as against defendant James Stout only, and in favor of the defendant W. T. Stout, in accordance with his previous ruling. This, we believe, would be the legal effect of the record as a whole. Section 511.270 RSMo 1949, V.A.M.S.

Extending to the defendants likewise a broad construction of their pleadings, we feel justified, under all of the record, to consider that the motion of the defendant W. T. Stout to set aside the verdict and to grant a new trial, was intended to challenge only the judgment of the court on his counterclaim.

Following this construction of the whole record we take it for granted that the joint appeal of the...