Hoefel v. Hammel
| Citation | 228 S.W.2d 402 |
| Decision Date | 21 March 1950 |
| Docket Number | No. 27778,27778 |
| Parties | HOEFEL v. HAMMEL. |
| Court | Court of Appeal of Missouri (US) |
Robert M. Zeppenfeld, and Herbert E. Barnard, both of St. Louis, for appellant. Walther, Hecker, Walther & Barnard, of St. Louis, of counsel.
A. G. Holtkamp, Evans & Dixon, and John F. Evans, all of St. Louis, Attorneys for Respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries growing out of an automobile collision which occurred on June 13, 1947, at the intersection of Woodrow Avenue and Lucas and Hunt Road in St. Louis County.
Lucas and Hunt Road is 50 feet in width, and runs generally north and south. It has four traffic lanes, two for northbound and two for southbound traffic. Woodrow Avenue, which runs generally east and west, enters Lucas and Hunt Road from the east, and terminates at the point of intersection.
There is a stop sign on the north side of Woodrow Avenue at the place where it intersects with Lucas and Hunt Road which requires motorists driving westwardly on Woodrow Avenue to come to a stop before entering Lucas and Hunt Road.
The accident happened in the late afternoon at a time when Luas and Hunt Road had considerable traffic upon it. Plaintiff, who lived on Woodrow Avenue, had driven westwardly to the intersection, where he made a stop at the sign preparatory to pulling out into Lucas and Hunt Road and making a left turn to the south. Upon discovering what he considered a safe break in the traffic, he started out into Lucas and Hunt Road, and was in the course of making his turn to the left when defendant, who was northbound on the highway, crashed into the left side of his car.
In his petition plaintiff charged defendant with negligence, among other things, in driving at a high and excessive speed, and in failing to stop, slacken the speed of, or swerve his automobile when he saw or should have seen plaintiff in a position of imminent peril in time to have avoided the collision.
Responding to the petition, defendant filed a counterclaim in which he charged plaintiff with negligence, among other things, in failing to give a warning of his intention to enter the line of moving vehicles; in failing to proceed carefully and yield the right of way to vehicles already in motion on the highway; and in failing to pass beyond the center of the intersection before attempting his turn to the left.
In his petition plaintiff prayed judgment against defendant in the sum of $10,801.26, while defendant, in his counterclaim, prayed judgment against plaintiff in the sum of $11,809.
Upon the trial of the case the jury returned a verdict in favor of defendant on plaintiff's cause of action, and also in favor of defendant on his counterclaim in the sum of $5,000.
In due time plaintiff filed his motion for a new trial both upon his own cause of action and upon defendant's counterclaim. The court thereafter sustained the motion upon two specified grounds, the one, that the verdict was against the weight of the evidence, and the other, that erroneous instructions had been given at defendant's request both on plaintiff's cause of action and on defendant's counterclaim.
Defendant thereupon gave notice of appeal from the order sustaining plaintiff's motion for a new trial, and by subsequent steps has caused the case to be transferred to this court for our review.
The peculiar situation presented on the record challenges our attention as to whether this court in fact has appellate jurisdiction, or whether, on the contrary, the amount in dispute is such as to bring the case within the exclusive appellate jurisdiction of the Supreme Court.
Looking at the case solely from the standpoint that the effect of the order sustaining plaintiff's motion for a new trial was to vacate defendant's verdict for $5,000 on his counterclaim, appellate jurisdiction would undoubtedly be in this court, since the question on appeal would be whether the order sustaining the motion for a new trial should be overruled and the verdict reinstated, in which event the verdict of $5,000 would represent the amount in dispute. Williams v. Atchison, T. & S. F. R. Co., 233 Mo. 666, 136 S.W. 304; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Culbertson v. Young, 156 Mo. 261, 56 S.W. 893; Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83.
But on the face of the record at least there is more to the case than the mere setting aside of defendant's verdict for $5,000 on his counterclaim. By this we have in mind that the apparent effect of the order sustaining the motion for a new trial has also been to restore plaintiff's cause of action to the status of a pending claim for $10,801.26. It is of course the established rule that where the plaintiff sues for a sum within the jurisdiction of the Supreme Court, and there is a defendant's verdict, whereupon the plaintiff files a motion for a new trial, which is sustained, and from which order the defendant appeals, jurisdiction is in the Supreme Court. Powell v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957; Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 142 A.L.R. 666; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466.
So here we have a situation where, if we view the record solely from the standpoint of the setting saide of defendant's verdict for $5,000 on his counterclaim, appellate jurisdiction is in this court, but where, if we view the order granting the new trial as having had the independent effect of also restoring plaintiff's cause of action to the status of a pending claim for $10,801.26, appellate jurisdiction would on that ground alone be in the Supreme Court. Indeed, if the two causes of action could exist independently so that there could be both a plaintiff's verdict on plaintiff's cause of action and a defendant's verdict on defendant's counterclaim, the amount now in dispute would comprise the amount sued for on plaintiff's cause of action plus the amount recovered by defendant on his counterclaim, and appellate jurisdiction would be all the more clearly in the Supreme Court. Wilson v. Russler, 162 Mo. 565, 63 S.W. 370.
The solution of our problem lies in the fact that owing to the nature of this case a plaintiff's verdict on plaintiff's cause of action and a defendant's verdict on defendant's counterclaim could not exist together. By his cause of action plaintiff sought to impose complete responsibility for the collision upon defendant, while defendant, by his counterclaim, sought to impose complete responsibility for the collision upon plaintiff. In other words, the situation is one where defendant's counterclaim was not only a counterclaim in the sense that it asked for affirmative relief, but also where the facts upon which the counterclaim was based, if established, constituted a complete defense to plaintiff's cause of action. Bramblett v. Harlow, Mo.App., 75 S.W.2d 626, 633. Upon the question of liability for the accident the proof of either cause of action would at the same time disprove the other. In this situation the issues arising both on plaintiff's cause of action and on defendant's counterclaim were merged in and resolved by the verdict in defendant's favor on his counterclaim, and the only real question in dispute on this appeal is whether that verdict shall be reinstated. It follows that since such verdict is for $5,000, appellate jurisdiction is in...
To continue reading
Request your trial
-
Brewer v. Rowe, 42815
...negligence on his counterclaim as to these same acts or omissions conjunctively submitted in Instruction No. 1. See Hoefel v. Hammel, Mo.App., 228 S.W.2d 402, 405. Hence, any error in Instruction No. 6 was 'Such conclusion renders unnecessary a determination of whether plaintiffs made a sub......
-
Langhammer v. City of Mexico, Mo.
...v. Baskowitz, Mo.App., 157 S.W.2d 807; Harris v. Rowden, Mo., 305 S.W.2d 25; Harmon v. Foster, Mo.App., 297 S.W.2d 783; Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. The only difference in these latter cases and this case is that the smaller award here was set aside at the behest of the defend......
-
Williams v. Cass
...Thompson, 346 Mo. 395, 141 S.W.2d 824, 828; Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 304, 305(1); Hoefel v. Hammel, Mo.App., 228 S.W.2d 402, 407(5). ...
-
Lomax v. Sawtell
...340 Mo. 1026, 104 S.W.2d 297, 300(16); Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 304, 305(1); Hoefel v. Hammel, Mo.App., 228 S.W.2d 402, 405(4). Our task is simplified and our duty is made plain by the fact that, in her brief on appeal, plaintiff does not challenge the ......