Jacobson v. Graham Ship-by-Truck Co.

• Decision Date: 22 May 1933
• Docket Number: No. 17773.,17773.
• Citation: 61 S.W.2d 401
• Parties: JACOBSON v. GRAHAM SHIP-BY-TRUCK CO.
• Court: Missouri Court of Appeals

61 S.W.2d 401

JACOBSON v. GRAHAM SHIP-BY-TRUCK CO.

No. 17773.

Kansas City Court of Appeals. Missouri.

May 22, 1933.

Rehearing Denied June 12, 1933.

Appeal from Circuit Court, Jackson County; Ellison A. Neel, Special Judge.

"Not to be published in State Reports."

Action by Harry B. Jacobson against the Graham Ship-by-Truck Company. From a judgment in favor of plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal.

Motion to dismiss appeal overruled. Judgment affirmed.

Jay L. Oldham, of Kansas City, for appellant.

Joseph H. Glass, of Kansas City, for respondent.

TRIMBLE, Judge.

Plaintiff alleges that while driving his Dodge truck east on "U. S. Highway No. 40," on or about July 5, 1929, some four and one-half miles east of Lawrence, Kan., defendant negligently allowed one of its trucks, also driven in an easterly direction on said highway, to collide with and run into the rear end of plaintiff's truck, damaging it in certain specified particulars, so that plaintiff's said truck was rendered useless and incapable of doing the work plaintiff had for it, to plaintiff's damage in the sum of $325, for which he prayed judgment. The answer pleaded a general denial, contributory negligence, and that plaintiff had made a settlement with defendant; to which plaintiff replied with a general denial.

The jury returned a verdict for plaintiff in the sum of $250. Defendant has appealed.

Plaintiff's motion to dismiss appeal on the ground that appellant's statement is defective and does not conform to our rules is not entitled to be sustained. The statement is not drawn with the artistic taste of the ordinary stereotyped form of such matters, but it is far from being in the shape of the one in Johnston v. Johnston (Mo. Sup.) 16 S.W. (2d) 91, or of that in Loomis v. Phœnix Ins. Co. (Mo. App.) 10 S.W.(2d) 956, and the other cases cited in support of the motion. It is not so objectionable as the one in Nowlin v. Kansas City Public Service Co., 58 S.W.(2d) 324, in which we said appeal should not be dismissed on mere technical grounds, but only where violation of rule causes the trouble the rule is intended to prevent. The motion to dismiss is overruled. Counsel, either herein or elsewhere, should not take courage from this and see how close to the border they can come, for a well-constructed statement is a great help in the battle of winning a case; besides, in seeing how close they can come to the precipice, one can now and then easily plunge over, and, when that occurs, it is "just too bad."

Appellant's first point is that the court erred in giving plaintiff's instructions Nos. 1 and 2. However, nothing is said about instruction No. 1, and it is nowhere stated or shown where instruction No. 1 is defective or erroneous. We have carefully studied said instruction No. 1 and find nothing wrong with it. It submits the question of defendant's negligence in approved form. There is no error apparent in it.

As to instruction No. 2, the only complaint made is that it tells the jury that, in arriving at the amount of damages, if any, to be allowed plaintiff, the jury might take into consideration the loss of the use of the truck. No complaint of, nor objection to, the evidence as to the loss of the use of the truck was, or is, made; but the objection is that the instruction told the jury it might consider the same in arriving at their verdict, if they found for plaintiff. It is not like the instruction in Conley v. Kansas City Rys. Co. (Mo. App.) 259 S. W. 153, nor are the facts the same. In the case at bar the plaintiff did not, like in those cited by appellant, fail or neglect to have his truck repaired in a reasonable time. He, under an agreement with appellant that it would repair the truck, turned same over to it; but the latter, instead of making the repairs, kept it in its plant and never notified plaintiff that no repairs were being made, or would be made, and it was not until plaintiff learned of this that he took the truck away and had it repaired himself. If there was any unreasonable delay in repairing of the...