Fuenfgeld v. Holt

• Decision Date: 02 April 1934
• Docket Number: No. 17935.,17935.
• Citation: Fuenfgeld v. Holt, 70 S.W.2d 143 (Mo. App. 1934)
• Parties: FUENFGELD v. HOLT.
• Court: Missouri Court of Appeals

70 S.W.2d 143

FUENFGELD v. HOLT.

No. 17935.

Kansas City Court of Appeals. Missouri.

April 2, 1934.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

Suit by Frank Fuenfgeld against James A. Holt. Judgment for defendant, and plaintiff appeals. Motion to dismiss the appeal.

Motion denied, and judgment affirmed.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, and James Booth, of Pacific, for appellant.

Clark, Boggs, Cave & Peterson, of Columbia, for respondent.

REYNOLDS, Commissioner.

This case arose in the circuit court of Gasconade county. In a suit for damages, from an adverse judgment, the plaintiff appeals. The amended petition, upon which the cause was tried, contained eight several assignments of primary negligence and one assignment of negligence under the humanitarian doctrine. The eight several assignments were as follows:

"1. That defendant, his agent and servant operated said automobile truck by backing up at a high, excessive, unreasonable and dangerous rate of speed under the circumstances, and so as to endanger the life and limbs of persons there, particularly plaintiff.

"2. That defendant, his agent and servant failed and omitted to give or sound a signal or warning of the approach or movement of said automobile truck, although he was engaged in backing said truck.

"3. That defendant, his agent and servant negligently and carelessly failed and omitted to swerve, slow down or stop said automobile so as to avoid colliding with plaintiff, when defendant, his agent and servant, in the exercise of the highest degree of care, would have done so, and did negligently and carelessly swerve said automobile truck so as to collide with plaintiff.

"4. That defendant, his agent and servant saw, or by the exercise of the highest degree of care could have seen, plaintiff in a position of imminent peril of being struck and injured by said automobile truck in time thereafter for the defendant, by the exercise of the highest degree of care, with the means and appliances at hand and with reasonable safety to persons in said automobile truck, to have stopped said automobile truck, prevented the moving thereof, slackened the speed thereof, swerved the same or given a warning of its approach and movement, and thus and thereby have avoided striking and injuring plaintiff, but negligently failed to do so.

"5. That defendant, his agent and servant negligently failed to exercise the highest degree of care to keep a watch ahead, to the rear and to the side for persons and vehicles on the street and approaching the pathway of defendant's automobile truck.

"6. That defendant, his agent and servant failed to keep a vigilant watch for persons or vehicles in the pathway of defendant's automobile truck, when by keeping such watch defendant, his agent and servant could have seen plaintiff in time to have stopped said automobile truck, prevented its moving, slackened the speed thereof, sounded a warning, or swerved the same and thus and thereby have avoided striking and injuring plaintiff, but defendant, his agent and servant negligently and carelessly failed to do so.

"7. Defendant, his agent and servant negligently and carelessly failed to operate and drive said vehicle in a careful and prudent manner, but did so operate the automobile truck so as to cause the same to come in contact with plaintiff.

"8. Defendant, his agent and servant negligently and carelessly failed and omitted to operate the said vehicle at a rate of speed so as not to endanger the property of another or the life or limb of any person, but did so operate the said automobile truck at a rate of speed as to strike the said plaintiff, and at a rate of speed which prevented the said defendant from being able to stop the said automobile truck before striking plaintiff."

The defendant's answer consisted of a general denial and four assignments of contributory negligence. The trial was before the court with a jury. At the conclusion of plaintiff's evidence and again at the conclusion of the whole case, after the introduction of evidence by the defendant, the defendant requested the court for an instruction in the nature of a general demurrer under the law as follows: "* * * the Court instructs the jury that under the law and the evidence your verdict must be for the defendant," which instruction, in each instance, was refused by the court. The plaintiff abandoned all of his assignments of negligence except the one based upon the humanitarian doctrine, and the cause was submitted to the jury upon such assignment. The defendant requested withdrawal instructions as to each of the several assignments, including the one submitted to the jury. The court granted all of said instructions except the one relating to the assignment under the humanitarian doctrine, which was refused.

Upon the issue thus submitted to the jury, both plaintiff and defendant asked and received instructions presenting their respective theories. The jury returned its verdict for the defendant, and judgment was accordingly entered. Upon this appeal, the appellant assigns error under four different heads, complaining of instructions A, B, C, and D, given by the court in behalf of the defendant, separately considered, and, under another, assigns error in the giving of said instructions considered together as a whole.

The appellant failed to set out in his original statement any abstract of the evidence introduced upon the trial or any statement of the ultimate facts shown by the record, and respondent asks that the appeal be dismissed on account thereof.

Opinion.

We are met at the threshold of this case with a motion by respondent to dismiss the appeal for the reason alleged that appellant has failed to make a statement as required by section 1923, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 1923, p. 2593), and rule 16 of this court.

Section 1923 provides as follows: "The counsel who make briefs under the rules and regulations of said supreme court and courts of appeals respectively shall, after the statement of the case, simply state the points, which brief, containing the points and authorities, shall be filed with the opinion of the court, by the clerk thereof, and become part of the papers in the case."

Rule 16 of this court provides: "In compliance with Section 863, Revised Statutes 1899, the statement filed by the appellant shall consist of a clear and concise statement of the case without argument, reference to issues of law or repetition of the testimony of witnesses. That statement shall be followed by the brief, which shall contain a statement of the points on which the appellant relies for a reversal of the judgment * * *. The respondent, in his statement, may adopt that of the appellant; or, if not satisfied with such statement, he shall correct any errors therein. The purpose of this rule is to enable the court to be informed of the material facts of the case by the statements, without being compelled to glean them from the abstract of the record."

What is meant by facts shown by the record is such an abstract of the evidence as will enable the appellate court to gain such comprehensive view of the evidence which it is called upon to try as to obviate the necessity of reading the entire record as is in the bill of exceptions. Hess et al. v. Corwin, 109 Mo. App. 22, 84 S. W. 141.

In the case of Crockett v. Kansas City Railways Company, 243 S. W. 902, loc. cit. 905, the Supreme Court, referring to its rule making the same requirement, says: "We conceive that the rule requires a statement of the ultimate facts which the testimony tends to prove and not a statement of the testimony which tends to establish such facts."

Appellant is required by rule 15 of this court to deliver a copy of his brief to the attorney for the respondent at least twenty days before the day on which the cause is docketed for hearing; and the counsel for respondent is required, at least eight days before the day the cause is docketed for hearing, to deliver to the counsel for appellant a copy of his statement and brief; and both appellant and respondent are required to file with the clerk of the court five copies each of their respective briefs on or before the day next preceding the day on which said cause is docketed for hearing, together with proof of service. The counsel for appellant may, if he desires, within five days after the service on him of the respondent's brief, serve and file a reply thereto in the manner designated. A supplemental or amended statement cannot be filed without the consent of the court and, ordinarily, ought not be permitted to be filed after the service by respondent of his brief and statement; and, where filed without such consent, it cannot be considered. Harding v. Bedoll, 202 Mo. 625, loc. cit. 636, 637, 100 S. W. 638; Everett v. Butler, 192 Mo. 564, loc. cit. 569, 91 S. W. 890; Hoffman v. Loudon, 96 Mo. App. 184, loc. cit. 188, 70 S. W. 162.

In this case, the appellant failed, in his original statement, to abstract or abridge the evidence or to set out the ultimate facts shown thereby. He did not undertake to set out a statement of the facts. He proceeded upon the theory that, for the purposes of the case, it was not necessary to set out the "evidential story" and did not undertake to do so. This is not a case where a statement of facts is claimed to be defective or insufficient. There is no statement at all. The situation here is very similar to the situation in the case of Seifert v. Seifert et al. (Mo. Sup.) 52 S.W.(2d) 817, where the appeal was dismissed. The appellant contends that he was under no duty under the statute or the rule of this court to make a statement of facts because respondent was estopped from denying that there were sufficient facts in evidence to authorize the submission of the cause to the jury upon the charge of respondent's negligence under the humanitarian doctrine (upon which charge...