Johnson v. Kansas City Pub. Serv. Co.

• Decision Date: 13 September 1948
• Docket Number: No. 40545.,40545.
• Citation: 214 S.W.2d 5
• Parties: LAFAYETTE JOHNSON, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Respondent, and MILTON SLOTKIN, Doing Business Under the Name of ABBEY RENTAL, Appellant.
• Court: Missouri Supreme Court

214 S.W.2d 5

LAFAYETTE JOHNSON, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Respondent, and MILTON SLOTKIN, Doing Business Under the Name of ABBEY RENTAL, Appellant.

No. 40545.

Supreme Court of Missouri.

Division Two, September 13, 1948.

Motion for Rehearing or to Transfer to Banc Overruled, October 11, 1948.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

AFFIRMED.

Parker & Knipmeyer and Walter A. Raymond for appellants.

(1) The trial court erred to the great prejudice of the plaintiff and the third-party defendant, Milton Slotkin, in sustaining the defendant's motion to set aside the verdict and judgment in favor of plaintiff and said third-party defendant and entering judgment for the defendant. In sustaining said motion and setting aside the verdict and judgment in favor of plaintiff and the third-party defendant the trial court ruled a question of law as to which it had no discretion and its action is subject to review and correction by this court. Smith v. Kasas City Pub. Serv. Co., 328 Mo. 979, 43 S.W. (2d) 548; Whittlesey v. Gerding, 246 S.W. 308: O'Bauer v. Katz Drug Co., 49 S.W. (2d) 1065. (2) The evidence in this record made a submissible case under the humanitarian rule and the court erred in setting aside the verdict for plaintiff and entering judgment for the defendant. Koehler v. Wells, 323 Mo. 892, 20 S.W. (2d) 31; Hopkins v. Kurn, 351 Mo. 41, 171 S.W. (2d) 625; Hutchison v. Thompson, 175 S.W. (2d) 903; Knorp v. Thompson, 352 Mo. 44, 175 S.W. (2d) 889; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W. (2d) 582; Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W. (2d) 368; Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W. (2d) 915. Marczuk v. St. Louis Pub. Serv. Co., 196 S.W. (2d) 1000; Robb v. St. Louis Pub. Serv. Co., 352 Mo. 566, 178 S.W. (2d) 443; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W. (2d) 42; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W. (2d) 406; Doty v. Fisher, 200 S.W. (2d) 534; Diel v. St. Louis Pub. Serv. Co., 238 Mo. App. 1046, 192 S.W. (2d) 608; Kick v. Franklin, 345 Mo. 752, 137 S.W. (2d) 512; Jones v. Chicago, R.I. & P. Ry. Co., 341 Mo. 640, 108 S.W. (2d) 94; Smith v. Thompson, 346 Mo. 502, 142 S.W. (2d) 70; Woods v. Kurn, 183 S.W. (2d) 852; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W. (2d) 406; Wilson v. Kurn, 183 S.W. (2d) 553; Fisher v. Ozark Milk Service, 201 S.W. (2d) 305; Steger v. Meehan, 63 S.W. (2d) 109; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730.

Charles L. Carr, Frank J. Rogers, and Cooper, Neel, Sutherland & Rogers for respondent.

(1) The appeal is premature and did not vest jurisdiction in this court. Rule 3.24; Secs. 126 and 129, Civil Code. (2) An appeal is purely a statutory right and a litigant must bring himself within the terms of the statute to avail himself of such right. McPike v. St. Louis County Bank, 193 S.W. (2d) 962. (3) An appeal taken before final judgment is premature and should be dismissed. Evans v. Barham, 184 S.W. (2d) 424; Christeson v. Christeson, 190 S. W. (2d) 568. (4) The provisions of the New Civil Code are plain and unambiguous. This court has no other alternative but to follow such provisions. Camden v. St. Louis Pub. Serv. Co., 206 S.W. (2d) 699. (5) The error complained of by plaintiff was not preserved for review in this court. Sec. 140 New Civil Code; Civil Code Act of 1943 by Judges Laurance M. Hyde and James M. Douglas set out in Vol. II Carr's Missouri Civil Procedure, p. 560; Spotts v. Spotts, 55 S.W. (2d) 977; Waterous v. Columbia Nat. Life Ins. Co., 186 S.W. (2d) 456; Castorina v. Herrmann, 104 S.W. (2d) 297; Banner Iron Works v. Ray R. Rosemond Co., 107 S.W. (2d) 1068. (6) The court did not err in sustaining defendant's motion to set aside the verdict and judgment and to enter judgment for defendant, as no submissible case was made. Steel v. Kansas City So. Ry. Co., 265 Mo. 97; Smithers v. Barker, 111 S.W. (2d) 47; Elkin v. St. Louis Pub. Serv. Co., 74 S.W. (2d) 600; Long v. Binnicker, 63 S.W. (2d) 831. State ex rel. Thompson v. Shain, 173 S.W. (2d) 406; State ex rel. Fleming v. Bland, 15 S.W. (2d) 798.

BOHLING, C.

Lafayette Johnson, plaintiff, and Milton Slotkin, party defendant below, prosecute this appeal from a judgment for the Kansas City Public Service Company, a corporation (hereinafter sometimes designated Service Company), entered upon respondent's after-trial motion for judgment in accordance with its motion for a directed verdict at the close of the evidence. The action was for damages for personal injuries to plaintiff and damages to defendant Slotkin's truck, operated by plaintiff, occurring in a street-intersection automobile-street car collision. The jury returned a verdict for plaintiff for $13,500 and for defendant Slotkin for $250, but, as stated, the judgments thereon were set aside. The issues cover the timeliness of appellants' notice of appeal, the scope of the issues available for review and, if available, whether a submissible case was made on the Service Company's duty to slacken speed under the humanitarian doctrine, and, if so, then whether certain errors of law occurred prejudicial to the Service Company during the course of the trial.

In this case at the close of plaintiff's evidence and again at the close of all the evidence defendant Service Company filed a motion for a directed verdict under Code Sec. 112.¹ Defendant Service Company filed timely motions to set aside the verdicts and judgments thereon and enter judgment for it in accord with its motion for a directed verdict (Code Sec. 113) and also filed separate motions for new trial. On June 27, 1947, said defendant's motion for judgment was sustained, and record entries made accordingly. The court made no ruling on the Service Company's motion for new trial. Consult Code Sec. 118; Rule 3.24.² On June 30, 1947, plaintiff and defendant Slotkin gave notice of appeal to this court "from the order and judgment" entered on June 27, 1947.

[1] Respondent first says the appeal was premature; contending, there being no motion for a new trial on behalf of appellants after entry of judgment for respondent, said judgment did not become final until the lapse of thirty days after entry (Code Sec. 119 and Rule 3.24; see also Rule 3.25), and the notice of appeal should have been filed within 10 days after the expiration of said thirty-day period but not prior. Evans v. Barnham (Mo.), 184 S.W. 2d 424 and Christeson v. Christeson (Mo. App.), 190 S.W. 2d 568, are cited to the point.

Code Sec. 112 provides for "a motion for a directed verdict" to replace our former demurrer to the evidence; and Sec. 113 authorizes one who has filed a motion for a directed verdict to move within 10 days after verdict to have the verdict and judgment entered thereon set aside and for judgment in accordance with his motion for a directed verdict. Motions for new trials are likewise to be filed within 10 days after entry of judgment. Code Sec. 116. The two motions may be joined or a new trial may be asked in the alternative. Code Sec. 113. So far as material, appeals are authorized "from any final judgment in the case." Code Sec. 126. Appeals are taken by filing a notice of appeal with the clerk of the trial court; but: "No such appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the judgment or order appealed from becomes final." Code Sec. 129.

The new Civil Code vested the Supreme Court with "power to promulgate rules necessary to harmonize" the provisions of said Code and also other statutes relating to Civil Procedure. Code Sec. 10(b). (Consult Mo. Const. 1945, Art. 5, Sec. 5, Laws 1945, p. 30.) Rule 3.24 was adopted pursuant thereto. Its stated purpose is to aid in ascertaining the time for taking an appeal and relates to Code provisions concerning motions for new trial (Secs. 116, 118, 119) and after-trial motions (Secs. 99, 114, 120), including motions for judgment as here involved (Code Secs. 112, 113). It provides:

"For the purpose of ascertaining the time within which an appeal must be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, except when a timely motion for new trial is filed, in which event the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the date of disposition of said motion. Authorized after-trial motions shall be treated as, and as a part of, a new trial motion for the purpose of ascertaining the time within which an appeal must be taken and all such after-trial motions shall be disposed of at the same time. Any authorized after-trial motion not passed on at the time the motion for new trial is determined shall be deemed overruled as of the same date. The filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court... ."

If respondent's after-trial motion for judgment under Code Sec. 113 is to be treated as a new trial motion for the purpose specified and as provided in Rule 3.24, its legal effect, although the motion be sustained, is to permit of an appeal from the judgment entered on said motion. We think this is especially applicable to motions for judgment under Code Sec. 113 so far as the review of a case made is involved. Judgments are entered as of the day of the verdict. Code Sec. 116. When attacked by authorized after-trial motions, the court has occasion to review its trial action on the issues specified. We perceive no compulsory reasoning for delaying the notice of appeal when a judgment is substituted for the prior judgment upon an after-trial motion for judgment as the trial court has had the privilege of reviewing its action at the trial with the parties having an opportunity to present their contentions. The wording of...