Harrison v. Weisbrod
| Decision Date | 05 June 1962 |
| Docket Number | No. 8061,8061 |
| Citation | 358 S.W.2d 277 |
| Parties | Joe L. HARRISON, Administrator of the Estate of David Harrison, Deceased, Plaintiff, v. Walter WEISBROD, Jr., Administrator of the Estate of Harry Bess, Deceased, Defendant-Appellant, v. Edward Charles SHIRA, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Powell & Jones, Dexter, for appellant.
Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, Frank Bild, St. Louis, for respondent.
Defendant, Edward Charles Shira, recovered a judgment in the Circuit Court of Stoddard County, Missouri, on his cross-claim against defendant, Walter Weisbrod, Jr., administrator of the estate of Harry Bess, deceased, in the sum of $4150 for personal injuries and property damages sustained in an automobile collision December 18, 1957, at the intersection of U. S. Highways 61 and 67 in Jefferson County, Missouri. From this judgment the administrator appealed.
On March 3, 1958, Joe L. Harrison, administrator of the estate of David Harrison, deceased, brought an action in the Circuit Court of Butler County, Missouri, naming as defendants, appellant, Walter Weisbrod, Jr., administrator of the estate of Harry Bess, deceased, and defendant, Edward Charles Shira, respondent, for the wrongful death of David Harrison resulting from an automobile collision while riding as a guest in the car owned and operated by Harry Bess.
On March 31, 1958, defendant, Shira, filed his crossclaim against the defendant-appellant, as administrator of the estate of Harry Bess, deceased, seeking to recover personal injuries and damages to his automobile on account of the alleged negligence of Harry Bess.
On April 17, 1958, appellant filed his verified motion to dismiss the crossclaim of defendant, Shira, alleging as reasons therefor that since Harry Bess died instantly, at the time of the collision, and before David Harrison died, there was no cause of action for the death of David Harrison in existence at the time of the death of Harry Bess, and, since plaintiff had no right to sue the administrator of the estate of Harry Bess, deceased, respondent, Shira, could not interpose a crossclaim in this action. This motion was overruled by the court.
Appellant filed answer to the crossclaim of respondent wherein he pleaded a general denial and contributory negligence. Thereafter, by agreement, the hearing on the crossclaim was sent by change of venue to Stoddard County.
March 14, 1961, the cause was taken up for trial, a jury impaneled and sworn to try the crossclaim. Respondent's attorney made his opening statement, respondent Shira was sworn and took the witness stand to testify. Upon objection to his testimony in regard to the collision under Section 491.090 V.A.M.S., he was prevented from testifying. Thereupon respondent, by his attorneys, dismissed the crossclaim without prejudice and the jury was discharged.
On March 15, 1961, respondent filed his motion to set aside the dismissal of his crossclaim and to reinstate the same which motion was, by the court, sustained March 20, 1961.
April 5, 1961, appellant filed a verified motion to dismiss the crossclaim and for reasons stated that since respondent had voluntarily dismissed his crossclaim without prejudice after trial had started, the court had no jurisdiction over the subject matter or over the person of appellant, the administrator of the estate of Harry Bess, deceased. This motion was by the court overruled. The cause was submitted to the jury on primary negligence, to-wit: that the said Harry Bess drove into the intersection at the said time and place when the stop light suspended over the intersection was red for traffic in the direction in which said Bess was driving and in violation of the statutory rules and regulations of the road. The jury returned a verdict in favor of respondent, Shira, for $3,000 for his personal injuries and $1150 damages to his automobile.
The undisputed evidence shows that the collision occurred about 9:00 o'clock A.M., December 18, 1957, at the intersection of U. S. Highways 61 and 67, about a mile and half or two miles south of Festus in Jefferson County; that highways 61 and 67, a paved four lane highway, runs north from the intersection toward Festus and St. Louis; that highway 67 runs south toward Poplar Bluff and 61, a two lane highway, runs east toward St. Genevieve and Perryville; that there is a dividing space between the two south lanes and the two north lanes in the four lane highway, both north and south of the intersection; that there are also left turning lanes for cars turning to the left; that there are light signals at the intersection alternately showing red for stopping, green arrow for turning left and green for going ahead; that the collision occurred near the center of the intersection, with both cars facing in a westerly direction; that the front of the two cars collided; that respondent, Shira, had come south on 61 and 67 from near St. Louis and was going to Perryville, which is on 61; that Harry Bess had left Poplar Bluff, which is on 67, about 120 miles south of Festus and had planned and made arrangements to go to St. Louis to get his wife and daughter; that respondent Shira sustained personal injuries and his car was damaged in an agreed sum of $1150; Bess was killed instantly and David Harrison, his passenger, died later the same day.
William Leland Reagan, a timber worker, testified for respondent that on December 18, 1957, he lived 18 miles sought of Festus; that on that day he traveled north on 67 in a Ford automobile and stopped on a red light in the outside lane of the intersection; that he saw one car, and perhaps more, on 67 headed south; that as the green arrow came on the one car, he remembered seeing on 67 facing south, which had stopped, started to make a left turn to go toward Perryville on 61, and, at the same time, another automobile came from the east on 61, crossed the intersection in front of witness and the collision occurred; that he was not sure whether or not there were any other cars in front of the Shira car but, if there were, he did not know what became of them; that his green light came on and he drove across the intersection, parked his car, and returned to the scene of the collision; that he saw the respondent get out of the car that had turned to its left and saw two men in the other car, neither of them moved; that he was still at the scene when the Highway Patrolman arrived; that he did not talk to him or tell him he saw the collision; that a few days later he saw a notice in the St. Louis paper inquiring if anyone had seen the collision and, in response to this notice, called the telephone number therein, collect, reported he had seen the collision; that no name was given in the notice and witness did not know with whom he talked.
On cross examination Reagan testified that he did not know whether Shira was the man driving the car which turned to the left.
To impeach the witness, Reagan, appellant read in evidence a portion of his deposition in which he stated, when shown one of defendant's exhibits, a picture of the Bess car, that he did not think it was the car involved in the collision; that he did not remember the date of the accident and he would not say whether or not Charles Shira had stopped at the intersection.
Highway Patrolman, Sergeant R. E. Butler, testified for respondent: That he arrived at the scene about 9:06 A.M., just after the collision occurred; that there was no one afoot when he arrived; that he did not recall seeing the witness, Reagan, and had no conversation with him; that he inquired of the people at the scene of collision if any had seen it and no one claimed to have seen it; that while there, respondent Shira told him that when he stopped at the stop sign, one car had stopped in front of him, and 'When the light changed we started out, and this car hit me head-on', and that the car in front of him must have gone on; that he did not see the Bess car until it hit him.
Respondent, Shira, did not testify.
Appellant filed a motion for directed verdict at the close of the evidence and, among the reasons assigned, stated that the evidence showed that Shira was guilty of contributory negligence as a matter of law. This motion was overruled. Likewise, appellant's motion for directed judgment in accordance with his motion for directed verdict at the close of all of the evidence and in the alternative for a new trial was overruled.
The evidence shows that Harry Bess died December 18, 1957; that Shira's crossbill was filed March 31, 1958. Appellant, Weisbrod had previously thereto been appointed as administrator of the estate of Harry Bess, deceased.
Appellant assigns as error the action of the trial court sustaining respondent's motion to reinstate his crossclaim after respondent had been permitted to voluntarily dismiss the same without prejudice. It is contended that the order of dismissal is not a judgment and since the adoption of the new Code of Civil Procedure in 1943, such order cannot be set aside by the trial court under Supreme Court Rule 75.01, V.A.M.R., Section 510.370 RSMo 1959, V.A.M.S., nor under any other rule or statute.
At common law a judgment remained in the breast of the court during the term at which the judgment was rendered, and could be set aside, or modified by the court, as justice required, during said term, regardless of motions of any kind. Wooten v. Friedberg, 255 Mo. 756, 198 S.W.2d 1, 5. However, under the new General Code for Civil Procedure that period is limited to thirty days after the entry of judgment. Civil Rule 75.01; Section 510.370 RSMo 1959, V.A.M.S.; Mid-States Equipment Corp. v. Hobart Welders S. & S., Mo.App., 233 S.W.2d 757, 758 .
It was held in the last cited authority, 233 S.W.2d page 758, that:
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