Gibson v. Newhouse

• Decision Date: 11 April 1966
• Docket Number: No. 1,No. 51283,51283,1
• Citation: 402 S.W.2d 324
• Parties: Paul GIBSON, Jr., By and Through His Next Friend, Alma Gibson, plaintiff-Appellant-Respondent, v. Ben F. NEWHOUSE, Defendant-Respondent, and Bud Godsey, Defendant-Appellant
• Court: Missouri Supreme Court

Page 324

402 S.W.2d 324

Paul GIBSON, Jr., By and Through His Next Friend, Alma Gibson, plaintiff-Appellant-Respondent, v. Ben F. NEWHOUSE, Defendant-Respondent and Bud Godsey, Defendant-Appellant.

No. 51283.

Supreme Court of Missouri, Division No. 1.

April 11, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 9, 1966.

William L. Pannell, Festus, for appellant-Godsey.

Earl R. Blackwell, Hillsboro, for plaintiff-respondent.

J. Richard Roberts, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Newhouse.

DONNELLY, Judge.

On May 23, 1964, the minor plaintiff Gibson was operating a motor scooter in a westerly direction on Highway 110 in Jefferson County, Missouri. Defendant Godsey, at said time and place, was operating a tractor and hay wagon in an easterly direction in the eastbound lane. Defendant Newhouse, operating his automobile in an easterly direction, came up behind Godsey's hay wagon, then pulled into the westbound lane to pass Godsey's hay wagon and collided with Gibson.

Gibson sued Newhouse and Godsey for $80,000. Trial was had in the Circuit Court of Jefferson County, Missouri. A motion for directed verdict was filed by Godsey at the close of plaintiff's evidence, which motion was overruled. Godsey stood on his motion and did not participate further in the trial except when called as a witness by Newhouse. The jury returned a verdict against Newhouse in the amount of $20,000 and in favor of Godsey. Newhouse filed a motion for new trial which was sustained by the trial court. Plaintiff filed a motion for new trial against Godsey, which was sustained by the trial court 'on the ground that the jury's final verdict respecting issues between plaintiff and Godsey is contrary to the weight of the evidence.'

Godsey appeals from the ruling of the trial court ordering him to submit to another trial and alleges that plaintiff's evidence is insufficient to make a case against Godsey.

The first question for determination is: In ruling on the sufficiency of plaintiff's case, must we consider only the evidence adduced to the point in the trial where Godsey filed his motion for directed verdict and stood on it, or can we consider all the evidence in the case? Godsey was called as a witness by Newhouse. On cross-examination by the attorney for Gibson, Godsey was asked if he knew Newhouse was going to call him to testify and he answered that he did not. Godsey's attorney, after filing the motion for directed verdict at the close of plaintiff's evidence, did not participate further in the trial. He questioned no witnesses, submitted no instructions, and did not argue the case. It is the law in this State that where a defendant does not stand on his motion for directed verdict at the close of plaintiff's evidence, but goes on and puts in his own case, we look to all the evidence in the case to see if plaintiff's case was aided by defendant's proof. Flanigan v. City of Springfield, Mo.Supp., 360 S.W.2d 700; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705. However, in the instant case, Godsey stood on the motion.

Where there is one defendant in a case and he stands on a motion for directed verdict, and plaintiff does not reopen, the trial of the case ends and plaintiff's evidence is all the evidence available for consideration. Where there are multiple defendants, and all stand on their motions for directed verdict, and plaintiff does not reopen, the trial of the case ends and plaintiff's evidence is all the evidence available for consideration. A problem arises, as here, where there are multiple defendants, and one of the defendants stands on his motion for directed verdict, and evidence is adduced in behalf of the other defendant or defendants. This problem has given the courts much difficulty. See Annotation, 48 A.L.R.2d 535. In Sowell v. Champion (1838) 6 Ad & El 407, 112 Eng Reprint 156, 2 Nev & P 627, Lord Denman, Ch. J., stated the rule as follows: 'The application to a Judge, in the course of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discretion; and that discretion is to be regulated, not merely by the fact that at the close of the plaintiff's case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. There is so palpable a failure of justice, when the evidence for a defence discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place, but where there is the strongest reason to believe that such a consequence cannot follows.' In Benoist v. Sylvester, 26 Mo. 585, this Court subscribed to the rule that what we now call a motion for a directed verdict should be made at the close of plaintiff's case, before any part of the defendant's evidence is gone into. The right of a defendant to move for a directed verdict at the close of plaintiff's case is recognized in § 510.280 RSMo 1959, V.A.M.S. In Rothweiler v. St. Louis Public Service Co. et al., Mo.App., 224 S.W.2d 569, 573, the St. Louis Court of Appeals considered error assigned by St. Louis Public Service Company to the trial court's refusal of its motion for a directed verdict. There were two defendants in the case, Edward Cordia and St. Louis Public Service Company. In considering the submissibility of the case against St. Louis Public Service Company, the Court said: '* * * the question must be decided upon the strength of plaintiff's own evidence unaided by the evidence brought forward by defendant Cordia in his own defense, since defendant St. Louis Public Service Company stood on its motion for a directed verdict at the close of plaintiff's case, and thereby did nothing to waive its right to challenge the action of the court at that stage of the proceeding. * * *' The Rothweiler case was transferred to this Court, and this Court, en banc, affirmed the conclusions of the Court of Appeals except as to the propriety of an instruction and reversed the case for error in the instruction. Rothweiler v. St. Louis Public Service Co., et al., 361 Mo. 259, 234 S.W.2d 552. Cf. Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; Christinsen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892, 48 A.L.R.2d 522; Carson v. Weston Hotel Corp., 351 Ill.App. 523, 115 N.E.2d 800; and Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148. We, therefore, follow the rule announced in the Rothweiler case and hold that, in ruling on the submissibility of the evidence in this case against Godsey, we are limited to a consideration of the evidence adduced prior to the filing of Godsey's motion for directed verdict. We do not believe this rule works a hardship on plaintiffs generally. Plaintiffs are entitled to prove essential parts of their cases by testimony of adverse parties at the trial. Section 491.030 RSMo 1959, V.A.M.S. They may request of defendants the admission of facts and of genuineness of documents. Rule 59, V.A.M.R. They may utilize depositions and interrogatories, Rules 56 and 57, V.A.M.R., and admissions against interest of the adverse parties contained in answers thereto may be introduced by plaintiffs in their cases in chief. White v. Burkeybile, Mo.Sup., 386 S.W.2d 418, 422, 423. There is no reason why plaintiffs cannot present all available evidence essential to their recovery before they rest their cases.

As heretofore stated, the jury found the issues of negligence in favor of Godsey but the trial court was of the view that the verdict was against the weight of the evidence and for that reason sustained plaintiff's motion for a new trial. Section 510.330 RSMo 1959, V.A.M.S.

'A new trial having been granted on this broad discretionary ground, the trial court's view that the verdict was against the weight of the evidence is conclusive in this court unless there has been a manifest abuse of discretion, which in this case is demonstrable only if there was no substantial evidence justifying the submission of the plaintiff's claim of negligence to the jury.' Berry v. Harmon, Mo.Sup., 323 S.W.2d 691, 693. In determining whether or not a submissible case was made for the jury against Godsey, we must consider plaintiff's evidence from a viewpoint most favorable to plaintiff and give plaintiff 'the benefit of every reasonable favorable inference which the evidence tends to support.' Berry v. Harmon, Mo.Sup., 329 S.W.2d 784, 789. 'But, of course, the case is not...