Gabelman v. Bolt

• Citation: 80 S.W.2d 171,336 Mo. 539
• Parties: Fred Gabelman v. J. R. Bolt, Appellant
• Decision Date: 05 March 1935
• Court: United States State Supreme Court of Missouri

80 S.W.2d 171

336 Mo. 539

Fred Gabelman v. J. R. Bolt, Appellant

Supreme Court of Missouri

March 5, 1935

Appellant's Motion for Rehearing Overruled January 7 1935.

Appellant's Motion to Transfer to Banc Overruled March 5, 1935.

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Affirmed.

Hackney & Welch and Clyde J. Linde for appellant.

(1) Plaintiff's evidence made a clear jury issue against defendant Bonner, and the court erred in marking "given" his instruction in the nature of a demurrer at the close of plaintiff's case. Westerman v. Brown Cab Co., 270 S.W. 142; Shaw v. Wilcox, 224 S.W. 58; Lord v. Austin, 39 S.W.2d 575. (2) Even if plaintiff's evidence had not made a jury issue against Bonner, the case was not dismissed as to him by the action that the court took at the close of plaintiff's evidence, and Bonner was still in the case throughout Bolt's evidence, and Bolt's evidence plainly convicted Bonner of gross negligence. The instruction at the close of all the evidence to find for Bonner was error. Lewis v. Mining Co., 199 Mo. 462; McClure v. Campbell, 148 Mo. 96, 49 S.W. 881; Diamond Rubber Co. v. Werniche, 166 Mo.App. 128, 148 S.W. 160; Greene County Bank v. Gray, 146 Mo. 568, 48 S.W. 447; Carter v. O'Neill, 102 Mo.App. 391, 76 S.W. 717; Proctor v. Garman, 218 S.W. 910, 203 Mo.App. 106; Leahy v. Winkel, 251 S.W. 483. (3) Appellant has a right to complain of errors in favor of defendant Bonner since they adversely affected and prejudiced the interests of appellant. Gulf & Ship Island Railroad Co. v. Carlson, 137 Miss. 613, 102 So. 168; Story v. People's Bus Co., 37 S.W.2d 898, 327 Mo. 719; Barr v. Nafziger Baking Co., 41 S.W.2d 559, 328 Mo. 423. (4) The oral instructions given at the close of plaintiff's evidence and those given after the jury retired squarely violated the statute requiring all instructions as to the law to be in writing. Cape Girardeau v. Fisher, 61 Mo.App. 509; Peck v. Springfield Traction Co., 131 Mo.App. 134; Belk v. Stewart, 160 Mo.App. 706; State v. Shipley, 174 Mo. 512; Dean v. Chandler, 44 Mo.App. 338; Skinner v. Stifel, 55 Mo.App. 9; Sec. 967, R. S. 1929. (5) The court erred in ruling and in stating to the jury that plaintiff's deposition and the transcript of witness Peterson's testimony on the trial in a companion case should not be considered in any way by the jury as against Bonner. Peppers v. Rys. Co., 316 Mo. 1104, 295 S.W. 757; Whitlow v. Ry. Co., 282 S.W. 525; Holman v. Bachus, 73 Mo. 49; Bell v. Jamison, 102 Mo. 71. (6) The testimony of plaintiff that Dr. Kuhn examined him at the request of appellant was incompetent and improper, and the argument of plaintiff's counsel to the jury to the effect that the defendant did not call Dr. Kuhn as a witness because he would have testified adversely to the defendant was prejudicial error. (7) The verdict is excessive.

James R. Sullivan, Arthur R. Wolfe, Mosman, Rogers, Bell & Buzard and Clay C. Rogers for respondent.

(1) Appellant was not prejudiced by reason of the fact that his codefendant Bonner was let out of the case before it was submitted to the jury. (a) Appellant has no right to complain of the action of the court in sustaining defendant Bonner's demurrer. Brickell v. Fleming, 281 S.W. 953; State ex rel. Cunningham v. Haid, 40 S.W.2d 1048; Lavignon v. Dietzel, 34 S.W.2d 94; Maher v. Donk Bros. Coal Co., 20 S.W.2d 894; Clark v. Railroad Co., 234 Mo. 424, 137 S.W. 583; O'Rourke v. Railroad Co., 142 Mo. 342, 44 S.W. 254; Beave v. Transit Co., 212 Mo. 335, 111 S.W. 52; Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528; Neal v. Curtis Mfg. Co., 41 S.W.2d 543; Cohen v. Silverman, 153 Minn. 391, 190 N.W. 795; DeJager v. Andringa, 241 Mich. 474, 217 N.W. 332; Washington, etc., Ry. Co. v. Fringles, 135 Md. 574, 109 A. 431. (b) The oral remarks of the court made in connection with the granting of the codefendant Bonner's demurrer, were not improper or prejudicial to appellant. (c) The remark of the court that "there is no evidence in this case showing any liability on the part of the defendant Bonner," was legally correct, and did not direct a verdict against appellant. It was made in connection with the court's remark, informing the jury to decide the issues between plaintiff defendant Bolt after hearing all the evidence and the instructions of the court, and is not prejudicial to appellant. Turner v. Wenatchee Vinegar Co., 298 P. 685; 64 C. J., sec. 69; Harris v. Greenville Traction Co., 101 S.C. 360, 85 S.E. 899; Accident Ins. Dept. v. Brooks, 114 So. 9; Sosnofski v. Ry. Co., 95 N.W. 1077; State v. Buschman, 29 S.W.2d 688. (d) No prejudice results to an appellant where the trial court makes a ruling that is legally correct and then gives his reasons for so ruling as in the case at bar. Goyette v. Ry. Co., 37 S.W.2d 555; Henry Evers Mfg. Co. v. Grant, 284 S.W. 528; Cable v. Johnson, 63 S.W.2d 441. (e) Plaintiff's evidence was insufficient to make a case against defendant Bonner, and it was therefore the court's duty to grant Bonner's demurrer at that time. Gableman v. Bolt, 68 S.W.2d 914; O'Brien v. Rindskopf, 70 S.W.2d 1091. (f) Appellant's defense of sole negligence on the part of Bonner in violation the traffic ordinances first came into the case when the appellant filed his amended answer after the court had made the remarks in question. Prior action of a court cannot be rendered erroneous or pejudicial to a party by his subsequent pleading. Lanham v. Vesper-Buick Auto Co., 21 S.W.2d 894; City of Montgomery v. Wycke, 169 Ala. 181, 53 So. 786. (g) The argument of appellant's counsel in his closing argument to the jury, the sustaining of appellant's objection to the argument of respondent's counsel in closing and the granting of three instructions on behalf of appellant submitting appellant's defense in all respects, all effectively show that appellant neither believed that he was prejudiced by the remarks of the court, nor could he be prejudiced in fact. Rose v. Ry. Co., 289 S.W. 916; Cohen v. Silverman, 190 N.W. 795; Santoro v. Brooks, 254 P. 1021; Herndon v. Springfield, 119 S.W. 470; Vaughn v. May, 9 S.W.2d 156; Lumsden v. Arbaugh, 227 S.W. 868. (h) Bonner went out of the case at the close of plaintiff's case, after the court granted his demurrer to the evidence. Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo.App. 94. (i) Appellant's objection to the trial court's remarks were too general to preserve the point for review. Barber v. Amer. Car & F. Co., 14 S.W.2d 483; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 71. (2) The court did not err in refusing to permit the deposition of the witness Peterson to be used against the codefendant Bonner. (a) Because no notice of the taking of this deposition was given to defendant Bonner. Millspaugh v. Railroad Co., 138 Mo.App. 31, 119 S.W. 993; Legg Shoe Co. v. Brown Leather Co., 249 S.W. 147; Ex parte Canada, 151 Mo.App. 710, 132 S.W. 754; Hendricks v. Calloway, 211 Mo. 558, 111 S.W. 60. (b) This issue cannot be reviewed here, since no such error is claimed by appellant in the motion for new trial. Dittmeier Real Estate Co. v. Southern Surety Co., 289 S.W. 890; Cullen v. Johnson, 29 S.W.2d 49; Smith v. K. C. Pub. Serv. Co., 56 S.W.2d 842. (3) The court committed no error in permitting counsel in the closing arguments to refer to the fact that appellant had failed to call Dr. Kuhn as a witness. (a) Because Dr. Kuhn examined plaintiff at the request of the appellant and was under his control. Shields v. Am. Car & F. Co., 293 S.W. 77; Wilson v. Seed Co., 243 S.W. 390; State ex rel. Meyer v. Daues, 285 S.W. 986; Bobos v. Krey Packing Co., 19 S.W.2d 630; Winkler v. Railroad Co., 10 S.W.2d 651; Keehn v. Realty & Inv. Co., 43 S.W.2d 418. (b) This issue is not reviewable here, since it was not assigned as error in the motion for new trial. Authorities under Point 2b, supra. (4) The judgment is not excessive. Crews v. Schmucke Hauling & Stor. Co., 8 S.W.2d 624; Rigley v. Prior, 233 S.W. 832; Hinkle v. Railroad Co., 199 S.W. 229; Kleinlein v. Foskin, 13 S.W.2d 659; Meeks v. K. C. Pub. Serv. Co., 73 S.W.2d 340; Henderson v. Cape Trading Co., 289 S.W. 337.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Respondent, plaintiff below, filed suit against appellant, an employee of the Sinclair Oil Company, Frank Bonner and Sinclair Oil Company as defendants, for damages resulting from personal injuries sustained in a collision of automobiles at the intersection of Brush Creek and Rock Hill boulevards in Kansas City, Missouri. No service was obtained on the Sinclair Oil Company and the case as to it was dismissed. At the close of plaintiff's case the trial court sustained a demurrer in favor of Frank Bonner. The trial then proceeded against appellant, J. R. Bolt, as the sole defendant. A jury returned a verdict for plaintiff in the sum of $ 8888.88. The trial court, as a condition for overruling a motion for new trial, required plaintiff to enter a remittitur of $ 3888.88. Plaintiff complied with this condition and judgment was entered for $ 5000. An appeal was granted to the Kansas City Court of Appeals. That court, by a majority opinion, reversed and remanded the case for new trial. One of the judges dissented and asked that the case be certified to this court for final determination. The case is, therefore, here on the merits the same as though it had been appealed to this court in the first instance. The ground of dissent, by one of the judges, was not upon the merits of the case. The dissenting judge was of the opinion that the point upon which the majority remanded the case had not been preserved for review. The opinion of the Court of Appeals will be found in 68 S.W.2d 909.

As above stated, the occurrence in question took place at the intersection of Brush Creek and...