Holmes v. McNeil

• Decision Date: 12 May 1947
• Docket Number: 39883
• Citation: 204 S.W.2d 303,356 Mo. 846
• Parties: Dixie P. Holmes, Appellant, v. William John McNeil and Daniel Edgar Palmer
• Court: Missouri Supreme Court

204 S.W.2d 303

356 Mo. 846

Dixie P. Holmes, Appellant, v. William John McNeil and Daniel Edgar Palmer

No. 39883

Supreme Court of Missouri

May 12, 1947

Motion for Rehearing or to Transfer to Banc Overruled September 8 1947.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded.

Claude L. Schenck and Paul Thomas for appellant.

(1) The court erred in sustaining defendant's motion for a directed verdict at the conclusion of plaintiff's case because it is the duty of the driver to use the highest degree of care in the operation of a vehicle. Sec. 8383, R.S 1939; Sec. 11-38, Ordinance of K.C. Mo.; Kaley v. Huntley, 63 S.W.2d 21; Id., 88 S.W.2d 200. (2) The trial court failed to give plaintiff's evidence the benefit of every inference of fact that can be drawn therefrom. Lowry v. Mohn, 195 S.W.2d 652. (3) The court erred in sustaining defendant's after trial motion for an appeal bond and for security for costs. Secs. 847.65, 847.130 (b), R.S. Ann. 1943.

Henry M. Shughart for respondent William John McNeil, and Harry P. Thomson, Jr., for respondent Daniel Edgar Palmer.

The trial court did not err in sustaining defendants' motions for a directed verdict at the conclusion of the plaintiff's evidence because the plaintiff's own evidence showed that the defendants were not guilty of negligence in any respect. Steele v. Kansas City So. Ry. Co., 265 Mo. 97, 175 S.W. 177; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Ellis v. Wolfe-Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309; Mollman v. St. Louis Pub. Serv. Co., 192 S.W.2d 618; 1 Blashfield's "Cyclopedia of Automobile Law and Practice," sec. 656, p. 468; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190; Cohen v. Petty, 65 F.2d 820; Armstrong v. Cook, 250 Mich. 180, 229 N.W. 433; La Vigne v. La Vigne, 158 P.2d 557; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432; Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Dixie P. Holmes, plaintiff, prosecutes this appeal from a judgment in favor of William J. McNeil and Daniel E. Palmer, defendants, and for costs entered at the close of plaintiff's case upon the separate motion of each defendant for a directed verdict. She sought $ 50,000 damages for personal injuries arising out of an automobile accident, charging defendants with negligence connected therewith.

Defendants have joined in a motion to dismiss plaintiff's appeal under Rule 1.15 on the ground the statement in her brief falls short of complying with Rule 1.08(b) and on the ground plaintiff failed "to post a $ 200 bond." Defendants cite no supporting cases.

Defendants complain that plaintiff's statement does not set out plaintiff's charges of negligence against defendants or the evidence upon which the court sustained the motions for a directed verdict. Plaintiff's statement of the facts is sufficient to indicate actionable negligence on the part of defendant Palmer in the operation of defendant McNeil's automobile, while plaintiff and others were guests of McNeil therein, in such manner as to run over a curb and into a light standard. Defendants, dissatisfied with plaintiff's statement, incorporated a full and complete statement of the facts in their brief and the allegations of negligence in plaintiff's petition. They devoted approximately four pages to the statement of facts while plaintiff limited her statement of the same facts insofar as covered to two pages. Her statement is not free from fault. However, taking plaintiff's brief and the record before us, which is short, the inconvenience occasioned is not such as to call for a dismissal of the appeal, although it is proper to disclose in an appellant's statement that evidence upon which the court sustains motions for a directed verdict. Like motions have been overruled in similar circumstances under prior rules (350 Mo. Appendix iii, Rules 15 and 16). Laun v. Union Elec. Co., 350 Mo. 572, 585[6], 166 S.W. 2d 1065, 1073[21]; Smith v. Henwood, 349 Mo. 396, 400[1], 161 S.W. 2d 232, 234[2]. Consult also Nowlin v. Kansas City Pub. Serv. Co. (Mo. App.), 58 S.W. 2d 324, 326[6]; Hyde v. Henman (Mo. App.), 256 S.W. 1088, 1089[1, 2]. The present rules are as liberal for reaching the merits.

Judgment was entered February 7, 1946. Plaintiff secured a special order of this court allowing the filing of her notice of appeal (Laws 1943, p. 391, Sec. 130) and filed such notice on April 27, 1946. On May 22, 1946, defendant McNeil filed a separate motion for an order "requiring plaintiff to file an appeal bond and for security for costs," on the grounds plaintiff was a nonresident and also was unable to pay "the costs of this suit and appeal." This motion was sustained, the bond fixed at $ 200 and plaintiff given thirty days in which to file it. The contention that the appeal be dismissed for plaintiff's failure to file the $ 200 bond is not well taken for several reasons. This motion, after judgment, came too late to function as a motion for security for costs under Sec. 1402, R.S. 1939, and afford grounds for a dismissal upon plaintiff's failure to comply with the order. See Re Estate of Albert, 80 Mo.App. 554; Laws 1943, p. 375, Sec. 65. The trial court entered no order undertaking to dismiss plaintiff's cause of action or affecting her appeal. The failure to post an appeal bond may subject the judgment debtor's property to execution pending the appeal. "When an appeal is taken after a special order the power to issue a stay is lodged exclusively in the appellate court . . ." Sec. 130(b), Laws 1943, p. 391. We are referred to no authority making the filing of an appeal bond a prerequisite to this plaintiff's right of appeal. It is not within the spirit of the code that this court dismiss an appeal for failure to post a bond for costs. "The Supreme Court and the Courts of Appeal shall have no power or authority to make or enforce any rule or order requiring any party to an appeal to file a bond for costs in those courts." Laws 1943, p. 394, Sec. 135(d). See also Laws 1943, p. 390, Secs. 126, 129, 132, 133; State ex rel. v. Sartorius, 349 Mo. 1039, 1054, 163 S.W. 2d 981, 986[10]; New York Store Merc. Co. v. Thurmond, 186 Mo. 410, 428, 85 S.W. 333, 337; Schultz v. Jones, 223 Mo.App. 142, 148, 9 S.W. 2d 248, 251]7].

The motion to dismiss is overruled.

Defendants contend Palmer was not guilty of actionable negligence; stressing Blashfield, Cyclopedia of Automobile Law (1935), 468, Sec. 656, reading: "Fainting or momentary loss of consciousness by the driver of an automobile due to fatigue is not in itself actionable negligence, and, if a driver stricken by paralysis or seized by an epileptic fit still continues with his hands on the wheel of the automobile which he is driving, and, unconscious, so directs it as to cause its collision with another, he cannot be held negligent for the way in which he controls it." The circumstances of the instant case, as developed hereafter, do not call for comment on the quoted principle of law. Consult also 42 C.J. 889, Sec. 591; 5 Am. Jur. 605, Sec. 180; 3-4 Huddy, Automobile Law (9th Ed.), 75, Sec. 39; 4 Sherman & Redfield, Negligence (1941), 1645, Sec. 700, n. 92; Annotations, 64 A.L.R. 136, 138 A.L.R. 1388; La Vinge v. La Vinge (Ore.), 158 P. 2d 557; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785 (reviewing authorities).

Defendants say a deposition of defendant Palmer offered by plaintiff in evidence is uncontradicted; that it brings plaintiff's case within the quotation from Blashfield, supra; and that plaintiff is bound thereby; citing Orlann v. Laederich, 338 Mo. 783, 790[3], 92 S.W. 2d 190, 193[4]; Steele v. Kansas City S. Ry. Co., 265 Mo. 97, 115, 175 S.W. 177, 181[2]; Elkin v. St. Louis Pub. Ser. Co., 335 Mo. 951, 958[4], 74 S.W. 2d 600, 603[8].

Between 11:00 and 11:30 on the evening of July 20, 1944, plaintiff, Mr. and Mrs. Palmer and Mr. McNeil were in McNeil's 1942 Buick sedan in Kansas City, Palmer operating the car. Mr. and Mrs. Palmer had been recently married. They had been at plaintiff's house to receive their wedding present. They were on their way to a restaurant for a dinner in celebration of the marriage. They had been to several taverns. Palmer stopped the car on Cherry street at a stop sign for southbound traffic about 10 feet north of Admiral boulevard, intending to turn west on Admiral. The weather was clear, the streets were dry, the headlights were burning and there was no traffic or obstruction on the streets to interfere with the operation of the automobile. The automobile was in good mechanical condition. Palmer started the Buick, proceeded into the intersection, turned right, and suddenly the car started swerving to the left, southwesterly, diagonally across the street. Plaintiff, who was riding in the front seat, looked at Palmer, saw he was bent over the wheel, looking down towards the floor of the car. The car continued in the southwesterly direction, gathering speed. Plaintiff shouted "Eddy" and tried to but could not reach the emergency brake, and then braced herself for the impact. The automobile traveled 100 yards or more, went over the curbing, estimated by McNeil to be 18 inches high, and struck a steel light pole. Plaintiff estimated its speed at 20 to 25 miles an hour at the instant of the impact. She sustained severe injuries. The damage to the car approximated $ 480.

Mr Palmer testified in the deposition as follows: His left foot had been smashed while at work. He had been back at work for a week but it was still "touchy." When he let out the clutch, he dropped his foot down on the dimmer and it pained him. "I just let go of the wheel and stomped down on the accelerator and it took my reflex along, I guess. . ....