Hammond v. Crown Coach Co.

• Decision Date: 11 January 1954
• Docket Number: No. 43393,No. 2,43393,2
• Citation: 364 Mo. 508,263 S.W.2d 362
• Parties: HAMMOND v. CROWN COACH CO
• Court: Missouri Supreme Court

Page 362

263 S.W.2d 362

364 Mo. 508

HAMMOND v. CROWN COACH CO.

No. 43393.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1954.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.

Cyril G. Baucke, Walter J. Gresham, Kansas City, for respondent.

BARRETT, Commissioner.

On December 21, 1949, Mrs. Nellie Hammond, now seventy-seven years of age, was a passenger on a Crown Coach Company bus en route from Rich Hill to Kansas City on U. S. Highway 71. The paved portion of the highway was eighteen feet wide and covered with ice. A short distance south of Peculiar the bus was proceeding in a northerly direction down a slight, icy grade. Three or four hundred feet away a Ford pickup truck pulling a two-wheeled house trailer, traveling in the opposite direction, also downgrade, met and passed a large tractor-trailer and the house trailer, probably due to the fact that its right wheel got off the pavement, began to weave and wobble on the icy highway. But, whatever the cause, in meeting and passing the bus, the left front of the two-wheeled house trailer struck the left front of the bus. The bus left the highway, crashed through a fence, and came to a stop in a field. Mrs. Hammond, who was sitting on the front seat on the right-hand side of the bus, was thrown to the floor and injured.

To recover $25,000 damages for her injuries Mrs. Hammond instituted this action against the Crown Coach Company and Mr. Raymond E. Thompson, of Houston, Texas, the owner of the house trailer and the driver of the Ford pickup. In her petition, as against the Crown Coach Company, Mrs. Hammond relied upon the relationship of passenger and carrier and the fact of the collision. As against Mr. Thompson she pleaded that the collision and her resulting injuries were due to the fact of his negligence in driving and operating his vehicles at an excessive rate of speed, failure to keep a proper lookout, and failure to operate his connected vehicles as close to the right-hand side of the highway as practicable. Briefly, in this connection, the coach company's witnesses testified that the house trailer was weaving, or swinging and whipping, as it met the bus. Mrs. Hammond testified that the bus was traveling to the left of the center of the highway as it met the pickup truck and house trailer but several other witnesses testified that the bus was on the right side of the highway at all times. Upon the trial of the case Mrs. Hammond dismissed her action against Mr. Thompson. The bus company's liability and her right to recover were hypothesized and submitted upon a finding of the relationship of passenger and carrier, the fact of a collision and the bus leaving the highway, from which facts, the jury was told, 'you may infer defendant was negligent, * * * and if you do find and believe from all the facts and circumstances in evidence that defendant was negligent and that plaintiff's injuries, if any, were directly caused by defendant's negligence, then your verdict shall be for plaintiff and against the defendant.' The jury returned a verdict in favor of the defendant bus company. The trial court sustained the plaintiff's motion for a new trial and the defendant Crown Coach Company has appealed from the final order granting the new trial.

The merits of this appeal, unfortunately, turn upon the facts and circumstances concerning the granting of the new trial. The jury's verdict in favor of the coach company was returned on May 15, 1952. The plaintiff's coventional motion for a new trial was filed on the 24th day of May. The nine grounds set forth in the motion were: (1) the verdict is against the greater weight of the credible evidence, (2) the verdict of the jury was against the law and the evidence, (3) under the law and the evidence the verdict should have been for the plaintiff, (4) the verdict was the result of the jury disregarding and ignoring the evidence and the instructions of the court, (5) the court erred in admitting incompetent, irrelevant and prejudicial evidence, (6) the court erred in excluding competent, material and relevant evidence, (7) the court erred in refusing plaintiff's instruction three, (8) the court erred in giving instruction B, and (9) 'The Court erred to the prejudice of the plaintiff in giving Instruction No. A at the request of the defendant and over the objections and exceptions of the plaintiff, who then and there objected and excepted to the giving of said Instruction No. A and plaintiff still objects and excepts.' On the 15th day of August, 1952, the trial court sustained the motion by this order, 'Now on this day plaintiff's motion for new trial heretofore heard by the court and taken under advisement, the court now being fully advised in the premises, said motion for a new trial is by the court sustained.' Thereafter, on the same day, the trial judge 'filed in said cause' a six page 'Findings Of Fact And Opinion.' On the same day the coach company filed its notice of appeal 'from the order sustaining plaintiff's motion for new trial.'

Even though the court's order granting the new trial failed to specify the ground or grounds upon which it was granted, the appellant coach company did not elect, 'before the time required for filing the transscript on appeal,' to serve a statement upon the respondent and require her to prepare the original brief. Supreme Court Rule 1.10, 42 V.A.M.S.; Missouri Crooked River Backwater Levee Dist. v. Merrifield, 358 Mo. 915, 218 S.W.2d 110. Instead, the coach company has perfected its appeal, filed a complete transcript of the record, including the 'Findings Of Fact And Opinion,' and has filed the 'original brief' in which it has briefed and argued all the assignments or grounds set forth in the plaintiff's motion for a new trial and pointed out, in view of the order appealed from, that there was not 'positive error of law' and, therefore, the order granting the new trial court not be sustained. The respondent, in her brief, seeks to support the correctness of the court's order by demonstrating, Goodman v. Allen Cab Co., 360 Mo. 1094, 1097, 232 S.W.2d 535, 537, that the giving of instruction A was prejudicial error and a sufficient ground for the court's graning the new trial. In so contending the respondent points to the court's finding of fact and opinion and insists that it demonstrates, despite the order, that the court granted the new trial upon the discretionary ground that instruction A, in the circumstances of this case, was confusing and misleading. The appellant insists, since the order granting the new trial failed to 'specify of record the ground or grounds on which said new trial is granted', Sections 510.330, 510.370 RSMo 1949, V.A.M.S., that the trial court's finding of fact and opinion is not properly a part of the record and may not be looked to for the purpose of sustaining the court's order and, furthermore, does not sustain the court's order.

In Sawyer v. Winterholder, Mo.Sup., 195 S.W.2d 659, Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295 and Mary Potter Love, Inc., v. Medart, Mo.App., 198 S.W.2d 386, 390, there were jury verdicts in favor of the defendants. In each of those cases the trial courts entered orders sustaining the plaintiffs' motions for new trial upon the specified grounds that the verdicts were 'against the weight of the evidence', or in the Medart case 'on first ground thereof', which contained the specification that the verdict was against the weight of the evidence. In each of those cases the trial judges dictated memorandum opinions explaining or setting forth their reasons for granting the new trials. In every one of those instances the defendants seized upon the memorandums and urged that they demonstrated as a matter of fact that the court had not granted or sustained a motion for new trial upon the discretionary ground specified in the order that the verdict was against the weight of the evidence but upon some nondiscretionary or erroneous ground. For example, in the Sawyer case it was claimed that the memorandum demonstrated that the trial court had in fact sustained the motion upon the erroneous assumption that the defendant's evidence was contrary to the physical facts. But in each of those cases the defendants were not permitted to resort to the court's memorandum for the purpose of demonstrating that the court had in fact granted the new trial upon some ground other than that specified in the court's order. It was pointed out in those cases that the trial court's 'order', Section 510.330 RSMo 1949, V.A.M.S., was the sole and only official repository for the court's grounds, thoughts or reasons for sustaining a motion for a new trial. Those cases, as well as this one, were not court tried cases and there were no requests for a statement of the grounds for the courts' decisions, Section 510.310, subd. 2 RSMo 1949, V.A.M.S., and no reasons for the courts' doing so. In any event, in those cases, it was held that the memorandums did not and could not have the effect of changing the meaning of the courts' unambiguous orders. In this connection it may be noted that the basic after trial motion is the motion for a new trial which when disposed of by the court's official order makes the judgment against which it is directed final. Hughes v. St. Louis Nat. League Baseball Club, Inc., 359 Mo. 993, 996, 224 S.W.2d 989, 991, 16 A.L.R.2d 904.

In Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 520, the trial court granted a new trial in a will contest, specifying in its order 'Ground No. 10' of the motion for a new trial. This court resorted to the specification in the motion for a new trial to determine that a new trial had been ordered upon a discretionary ground, that the judgment had been influenced by the false testimony of one of the plaintiff's witnesses. The trial judge had also prepared and filed a 'memorandum' which was not included in the transcript and the respondent sought to correct the...