Keyte v. Parrish
| Decision Date | 07 February 1966 |
| Docket Number | No. 24304,24304 |
| Citation | 399 S.W.2d 601 |
| Court | Missouri Court of Appeals |
| Parties | Robert W. KEYTE, Respondent, v. Roy Jefferson PARRISH, Appellant. |
Frank E. Meyer, Wesner, Wesner & Meyer, Sedalia, for appellant.
Vance Julian, Clinton, for respondent.
A solution of the questions presented by this appeal does not require a detailed review of the evidence. Some of the facts must preface discussion of the questions. Others will be recited as they become relevant. On August 31, 1962, Roy Jefferson Parrish was driving his Dodge automobile east on Highway No. 52 near Windsor, Missouri. It was shortly after 10 P.M. and the night was dark. Suddenly the electrical system of his vehicle ceased to function properly. The lights grew dim and the motor died. He managed to bring it to a stop with its left wheels still on his lane of the highway and its right wheels on the shoulder. The view we take of the case renders the precise position of the automobile irrelevant. The motor was dead and could not be started again. He undertook to push the automobile off the highway but lacked the strength to move it from its standstill position. His efforts to stop passing motorist and obtain help from them were unavailing. Leaving his parking and tail lights burning he walked westward to a farm house to telephone for assistance. When he returned shortly afterward, he discovered that his autmobile had been struct in the rear by a GMC truck being driven by an agent of Robert W. Keyte. Both vehicles were damaged. Keyte sued Parrish for $2200.00 for damage to his truck and for $475.00 for loss of its use. Parrish denied liability and counterclaimed for $445.00 for damage to his automobile.
The cause was tried before the court without a jury. The issues were found against Keyte and for Parrish on the petition and counterclaim and judgment was rendered for Parrish for $445.00. Following the entry of the finding and judgment, there was an immediate colloquy between the court and counsel for both parties. It lasted only a few minutes and it ended by the court setting aside its finding and judgment and ordering a new trial. That action resulted in this appeal by Parrish.
Questioned first by Parrish is the action of the court in setting aside the judgment and granting a new trial with no written motion before it. An oral motion for new trial was made during the colloquy and no objection was raised that the motion was oral and not in writing. Besides, courts retain control of their judgments during the thirty day period after their entry and are authorized to order a new trial on their own initiative for any reason for which they might have granted a new trial on motion. Civil Rule 75.01 V.A.M.R. No written motion was required. Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347, 349; Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 281. Of course, any order granting a new trial, on the motion of a party or the court's own motion, can only be entered 'upon good cause shown' and after notice and hearing. Civil Rule 78.01; Hoppe, Inc. v. St. Louis Public Service Co., supra, 235 S.W.2d l. c. 349. In this case there is no question of notice and hearing. As observed, the attorneys for both sides were present and the court ordered a new trial without any objection that the notice was too short or the hearing was objectionable in any way.
Prior to the trial Keyte submitted two interrogatories to Parrish. The interrogatories and answers were as follows:
Q.
A. 'Neither I nor any one acting in my behalf know of any one who witnessed the occurrence.'
Q.
A.
During the colloquy that immediately followed the entry of judgment, counsel for Keyte asserted that these interrogatories had not been truthfully answered because Parrish had not included the names of two witnesses, Mr. and Mrs. Clifford M. Yount. These witnesses had testified for Parrish during the trial. Their testimony was that on the night in question they were traveling east in their automobile on Highway No. 52 from Windsor enroute to Cole Camp after 10 P.M. and they saw Parrish's car standing partially on the highway and the shoulder with the tail lights burning. This was before the collision. Later that night on their return trip to Windsor they passed the locale again and saw both the automobile and truck after the collision had occurred. They testified they did not see the collision and no one claimed they did. At first the court said it believed the word 'occurrence', employed in the interrogatories, meant only 'the actual collision' to a layman. Counsel for Parrish said: 'I took the interrogatory to mean, witnesses to the actual collision, Your Honor.' Counsel for Keyte argued that the word 'occurrence' was broad enough to include not only the actual collision itself but also the observation by the Younts of Parrish's automobile before the collision and their observation of the automobile and truck after the collision. He asked the court to cite Parrish for contempt. The court refused to cite Parrish for the reason it did not believe that a layman would understand the word 'occurrence' to have the meaning attributed to it by Keyte's counsel. Finally, the court came to the conclusion that Parrish's counsel should have seen to it that the interrogatories were answered with this broad definition of the word 'occurrence' in mind. Keyte's counsel then moved for a new trial and the court said: 'I feel that your request to set aside the judgment should be acceded to' * * * 'but it's on the failure of the attorney to not properly answer the question rather than the defendant.' Parrish's counsel then said: 'I honestly can tell the court I do not know whether I knew of it (the evidence of the Younts) at the time of the answering of these interrogatories, or not.' The court said: 'Well, it looks like, according to your defendant's testimony, you did.' Thereupon, the court set aside its finding and judgment and granted a new trial in the exercise of its discretion on the assertion of Keyte's counsel that he had been surprised by the testimony of the Younts since he had not been afforded a pre-trial opportunity to meet it.
Parrish argues that the action of the court in setting aside its finding and judgment on the ground of surprise was an abuse of discretion because it was not entered 'upon good cause shown'. Civil Rule 78.01. Keyte calls to our notice several rules which have been held to govern particular cases where discretionary action was under scrutiny by appellate courts and argues that they apply to this case and ought to lead us to affirm the court's order. We acknowledge the validity of all the rules on which Keyte relies when applied to appropriate cases. Of course, trial courts have 'broad discretion to choose a course of action during the trial when evidence is challenged on the ground it has not been disclosed in answers to interrogatories', but that discretion is not without limits. Of course, 'trial courts are vested with discretionary authority over questions of fact and matters affecting the determination of fact issues in setting aside a judgment', but the discretionary authority cannot be abused. Also it is true that 'appellate courts are more liberal in sustaining trial courts in granting a new trial than in...
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Gamble v. Browning
...by Keyte in this case and the trial court did not have the right to exempt him from the consequences of his gamble.Keyte v. Parrish, 399 S.W.2d 601, 605 (Mo.App.1966); see also, e.g., Ark–Mo. Power Co. v. Haines, 592 S.W.2d 883, 885 (Mo.App. S.D.1980).III. In Point V, Gamble argues that the......
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Missouri State Park Bd. v. McDaniel, 9092
...whose names, though known to the party, were not disclosed to his adversary by answers to written interrogatories. Keyte v. Parrish, Mo.App., 399 S.W.2d 601, 605(7); Aulgur v. Zylich, Mo.App., 390 S.W.2d 553, 556--557(2, 3); Annotations: Discovery--Names of Witnesses, 37 A.L.R.2d 1152--1165......
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Gamble v. Browning
...by Keyte in this case and the trial court did not have the right to exempt him from the consequences of his gamble.Keyte v. Parrish, 399 S.W.2d 601, 605 (Mo. App. 1966); see also, e.g., Ark.-Mo. Power Co. v. Haines, 592 S.W.2d 883, 885 (Mo. App. S.D. 1980).III. In Point V, Gamble argues tha......
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Morrison v. Thomas, 25735
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