Handshy v. Hasty, 33370
| Decision Date | 15 July 1969 |
| Docket Number | No. 33370,33370 |
| Citation | 444 S.W.2d 48 |
| Parties | Orville HANDSHY, Plaintiff-Respondent, v. Jakie E. HASTY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Adolph K. Schwartz, St. Louis, for defendant-appellant.
Norman Zaltsman, Clayton, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for plaintiff-respondent.
Plaintiff was the recipient of a jury verdict and judgment entered thereon in the amount of $5,000.00 in his action to recover for injuries he allegedly sustained in a motor vehicle collision. The determinative issue is whether he made a submissible case.
Before passing on the issues involved in this appeal we feel constrained to comment upon the manner in which this appeal is presented to us. Counsel for plaintiff failed to file a timely brief and we denied his motion to file his brief late. Defendant's counsel filed a brief which is in clear violation of Civil Rule 83.05(c), V.A.M.R. It does not contain a statement of facts but instead contains a statement of the testimony of each witness. Such a presentation is not permitted. See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15. The rules are easy to understand and are fair to all. We have in the past commended members of the bar for the excellence of their briefs and their diligence in complying with the rules. Barad v. Leppert Roos Fur Company, Mo.App., 442 S.W.2d 104, handed down May 20, 1969. It is therefore only fair that we also note deficiencies in compliance when such exist. Failure to comply with the requirements of timely filing or obedience to Civil Rule 83.05(c), supra, are indeed difficult to understand. However, we have determined that in the instant appeal we will not strike the brief and require the filing of a brief in compliance with the rules before considering the appeal, nor will we dismiss the appeal for failure to comply.
Defendant contends plaintiff failed to make a submissible case on the grounds plaintiff was guilty of contributory negligence as a matter of law and there was no evidence of causal connection. The facts relating to this issue, stated in the light most favorable to plaintiff, show plaintiff's theory of recovery was that defendant either failed to keep a careful lookout or failed to yield the right-of-way. Plaintiff pled he suffered injury resulting from aggravation of his prior existing condition of arthritis, spondylolisthesis, and herniated intervertebral disc. However, he submitted only as to future damages. See Harrison v. Weller, Mo.App., 423 S.W.2d 226, l.c. (2--5) 229--230, and cases there cited. Defendant's answer alleged plaintiff's contributory negligence in several respects but this issue was submitted to the jury on the ground that plaintiff knew or by the exercise of the highest degree of care could have known there was a reasonable likelihood of collision in time thereafter to have swerved or slackened his speed.
The accident out of which this action arose occurred on December 26, 1963. As a result of interrogatories it appears that in December of 1959 plaintiff fell down some stairs while employed by an oil company and injured what he described as his 'lower back'. An action arising out of this accident resulted in a defendant's verdict. It also appears that in 1962 while employed as a truck driver he was involved in a collision resulting in injuries to his 'head and disc between shoulders' and settled the legal action which arose out of that incident. The transcript discloses that while wearing a Thomas collar as a result of injuries received in this accident plaintiff was involved in still another in which he claimed he was not injured but another person riding with him was. The interrogatories requested the names and addresses of every person known by plaintiff or his 'representatives' to have been present at the scene or to have knowledge of facts relevant and material to this accident. His answer named a Charles Foster as having been present at the scene and stated he did not know of anyone other than that.
The accident occurred at the intersection of Lackland and St. Charles Rock Roads in St. Louis County. St. Charles Rock Road travels in a generally east-west direction while Lackland Road comes in from the southwest, intersects at an angle, and dead ends at the intersection. St. Charles Rock Road is not controlled by any traffic signals. There is a major stop sign governing traffic coming from the southwest on Lackland Road. About 1000 feet back from this intersection St. Charles Rock Road has only two lanes westbound, but from that point as one comes closer to the intersection it widens and adds a third lane for traffic turning left from that road onto Lackland Road. Plaintiff was in the curb lane of St. Charles Rock Road traveling westwardly at a speed of 35 to 40 miles per hour. There is a downgrade to the intersection from the crest of a hill 200 or more feet east of the intersection and as he came over the crest of the hill plaintiff could see the whole intersection. There was traffic to his left. At a point when he was 150 feet from the intersection a large truck intending to turn left pulled into the proper lane to make that turn and blocked plaintiff's view. Plaintiff did not see defendant's automobile approaching on Lackland Road and did not see it at the stop sign or before it entered into the intersection. The first time he saw defendant he was crossing the street and the front of his automobile had crossed about one and a half lanes of the two eastbound lanes of St. Charles Rock Road. Plaintiff was then 35 to 40 feet from the intersection and defendant was 35 to 40 feet to his left. Plaintiff immediately sounded his horn, applied his brakes, and started pulling over to his right. He traveled 35 feet before he brought his automobile to a stop in the driveway of the Continental Can Company which was on the north side of St. Charles Rock Road approximately across from Lackland. Plaintiff's testimony was that the impact occurred in that driveway when defendant '* * * came right into the front of my truck with his car' after plaintiff had stopped.
Plaintiff offered the testimony of the witness Murray who saw the accident. Defendant objected on the grounds that Murray's name had not been given as a witness in answer to the interrogatories. During discussion between court and counsel on the objection defendant's counsel took the position plaintiff was the one to whom the interrogatories were propounded and that he answered them as fully as he could since the first personal knowledge plaintiff had of Mr. Murray's existence was when Murray appeared at the trial. Plaintiff's counsel further stated that at the time the interrogatories were propounded he did not know of Murray's existence either and only discovered it thereafter from information supplied by another attorney who had previously been involved in the action. Plaintiff's counsel took the position that Murray's discovery was part of plaintiff's counsel's work product and that even plaintiff had no right to any part of that product. The motion was overruled. It is unnecessary to summarize this witness's testimony. It was not plaintiff's best evidence on the issues here involved.
Dr. Goldfarb who treated plaintiff for the injuries arising out of his 1959 accident also treated plaintiff for the injuries he alleges arose out of this accident. Dr. Goldfarb told plaintiff while treating him for the 1959 accident that he had spondylolisthesis and told him it was a condition with which he was born and was going to have to live.
Defendant offered a 1961 report from Dr. Diehr of an examination made in May of that year with regard to the 1959 accident. His complaint to Dr. Diehr was as to back pain. The x-rays taken at that time revealed the spondylolisthesis which Dr. Diehr referred to as being a congenital condition. In May of that same year plaintiff was examined by Dr. Ford and his examination was introduced into evidence by defendant in the instant case. He also found the congenital spondylolisthesis at the fifth lumbar vertebra. It was Dr. Ford's opinion the man had sustained a contusion and sprain of his lower back which produced: '* * * a symptomatic aggravation of a pre-existing spondylothesis (sic) of the lumbo-sacral vertebrae.'
The fall down the stairs in 1959 resulted in two trials, the judgment in the first being reversed and the cause remanded. The first trial took place on February 18, 1963, some ten months prior to the...
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