Klohr v. Edwards

• Decision Date: 03 March 1936
• Docket Number: No. 23595.,23595.
• Court: Missouri Court of Appeals
• Parties: KLOHR v. EDWARDS.

94 S.W.2d 99

KLOHR v. EDWARDS.

No. 23595.

St. Louis Court of Appeals. Missouri.

March 3, 1936.

As Modified on Denial of Rehearing May 8, 1936.

Appeal from Circuit Court, Franklin County; Hon. R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by Helen Klohr, an infant, by Daisy Dunbach, her natural guardian, against R. N. Edwards. From an adverse judgment, the defendant appeals.

Affirmed.

James T. Blair, Jr., of Jefferson City, Otto & Boyer, of Washington, Mo., and Max Sigoloff, of St. Louis, for appellant.

F. W. Jenny and T. P. Hukriede, both of Union, and T. W. Hukriede, of Warrenton, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for injuries sustained by plaintiff, Helen Klohr, as the result of a collision between an automobile in which she was riding as a guest and the defendant's motortruck. The action was commenced in the circuit court of Franklin county on October 13, 1934. The collision occurred on Highway No. 50, in Franklin county, Mo., on June 7, 1934.

The petition alleges that the plaintiff, Helen Klohr, is under the age of 21 years, to wit, of the age of 14 years; that she is the daughter of Daisy Dunbach, and prosecutes this action by said Daisy Dunbach as her natural guardian and next friend; that the defendant, R. N. Edwards, at all the times herein mentioned was a freight motor carrier under a certificate of convenience and necessity issued to him by the Public Service Commission of the state of Missouri, and as such operating under the laws of the state of Missouri in such cases made and provided; that highway No. 50 is a public highway running in an easterly and westerly direction through Franklin county, Mo.; that on June 7, 1934, plaintiff was a passenger in an automobile being driven westwardly on said highway 50 in Franklin county, Mo.; that at said time and place defendant's driver was operating a motortruck eastwardly on said highway; that said driver so operated said motortruck as to cause it to collide with the automobile in which plaintiff was riding, and that as a direct result of said collision plaintiff was injured; that her body was bruised and contused, her face was deeply cut, and as a result thereof will be permanently scarred; that she lost the sight of her right eye and the sight of her left eye is impaired; that plaintiff was caused to become nervous and to suffer great pain and mental anguish; that said collision and consequent injuries to plaintiff were the direct result of the negligence of defendant's driver, in this, to wit: That said driver "negligently failed to exercise the highest degree of care to keep said motortruck as close to the right-hand side of the highway as practical."

Upon the filing of the petition, summons was issued directed to the sheriff of Franklin county. It was served by the sheriff of Cole county, in Cole county, on October 17, 1934, by delivering a copy of the same, together with a copy of the petition thereto attached, to Robert E. Holliway, secretary of the Public Service Commission, authorized to receive such service by virtue of section 5279, Laws of Missouri 1931, page 316 (Mo.St.Ann. § 5279, p. 6694), as shown by the return of said sheriff duly indorsed on said summons.

Said section 5279 is found at page 316 of the Missouri Session Laws of 1931 (Mo. St.Ann. § 5279, p. 6694), and reads as follows: "Suit may be brought against any motor carrier or contract hauler, as in this act defined, in any county where the cause of action may arise, in any town or county where motor carrier operates, or judicial circuit where the cause of action accrued, or where the defendant maintains an office or agent and service may be had upon such carrier whether an individual person, firm, company, association, or corporation, by serving process upon the secretary of the public service commission."

That defendant at the time of the accident in which plaintiff received the injuries for which she sues was a motor carrier within the meaning of the statute is not questioned.

On November 19, 1934, the defendant, appearing specially for that purpose, filed his motion to quash the summons and the sheriff's return, on the grounds (1) that the summons was directed to the sheriff of Franklin county and served by the sheriff of Cole county, and (2) that he is deprived of due process of law as guaranteed to him under the Constitution of Missouri and the Constitution of the United States by the summons issued and the return made thereon. This motion, being submitted to the court on the record, was by the court overruled on November 24, 1934, and the clerk, by leave of court, amended the summons so as to direct it to the sheriff of Cole county.

On December 10, 1934, the defendant filed his plea to the jurisdiction and answer. The plea to the jurisdiction was put on the same grounds as was the motion to quash. The answer was a general denial, coupled with a plea of contributory negligence.

The cause was tried to a jury. The plea to the jurisdiction, which was submitted on the record, was overruled by the court. The jury returned a verdict for plaintiff on the merits, assessing her damages at $6,000, and judgment was given accordingly. Defendant appeals.

At the time of the accident, plaintiff was riding as a guest in a Ford roadster with John Knox and William Stender. Stender was driving the roadster, which was traveling west on highway 50. Defendant's truck, driven by Dewey Weir, was traveling east. Plaintiff testified to the effect that the collision occurred on the north side of the highway. Her testimony was corroborated by several witnesses who were at the scene of the accident shortly after it occurred. Dewey Weir, the driver of the truck, testified that the collision occurred on the south side of the highway. Wayne G. Henderson, a highway patrolman, testified that he arrived at the scene of the accident shortly after it occurred, and that Weir there told him the reason he was over on the wrong side of the road was because he had his head out of the door of the truck listening to the sound of the bearings to determine whether or not the bearings were "going out." The accident occurred about 4:30 in the morning.

The unconstitutionality of the statute, authorizing service on a motor carrier, by serving the secretary of the Public Service Commission, without any provision requiring the secretary to notify the carrier, is urged here. On that ground, it is urged that the court below, by such manner of service, acquired no jurisdiction of the person of the defendant. This attack on the constitutionality of the statute necessarily questions the jurisdiction of this court to review the decision of the court below on appeal. The law is well settled in this state that a constitutional question to give the Supreme Court jurisdiction of an appeal must not only be such as to require a construction of some part of the Constitution, but must be so preserved that the record on appeal will present it for decision. To so preserve the question it must not only be raised in a timely manner in the court below, but must be kept alive in the motion for a new trial. In the present case the constitutional question now here insisted upon was not mentioned in the motion for a new trial. The question is therefore not preserved for decision on appeal, and this court is not deprived of jurisdiction of the appeal, and the statute must be taken as constitutional and valid in the disposition of the appeal. Kircher v. Evers (Mo.Sup.) 238 S.W.(2d) 1086; Limbaugh v. Monarch Life Ins. Co. (Mo.App.) 84 S.W.(2d) 208; Shaw v. Goldman, 183 Mo. 461, 81 S.W. 1223; Ash v. City of Independence, 169 Mo. 77, 68 S.W. 888; State v. Campbell (Mo.Sup.) 259 S.W. 430.

It is further urged that the court below acquired no jurisdiction of the person of the defendant, on the ground that the summons was directed to the sheriff of Franklin county rather than to the sheriff of Cole county, who was charged with its execution. Whether or not this defect in the summons is fatal to its validity as a means of acquiring jurisdiction over the person of the defendant it is not necessary to now decide, for the reason that the defendant submitted himself to the jurisdiction of the court by answering over and participating in the trial on the merits, and this is so notwithstanding he joined in his answer a plea to the jurisdiction with the plea to the merits. Where, as here, a plea to the jurisdiction of the person is not based on facts dehors the record, but is based on matter appearing on the face of the record, the plea is waived by answering to the merits and participating in the trial on the merits. In such case the defendant enters his general appearance, and confers full and complete jurisdiction over his person, however much he may protest, through a plea to the jurisdiction, that he does not. Mertens v. McMahon, 334 Mo. 175, 66 S.W.(2d) 127, 93 A.L.R. 1285.

Defendant complains that the court permitted plaintiff's counsel to make inquiry of the jurymen, on their voir dire, as to whether or not any of them owned any of the stocks or bonds of the Central Mutual Insurance Company of Chicago or was in the employ of said company. The objection made by defendant's counsel to this inquiry at the trial was put on the ground that there was no showing that the insurance company was interested in the result of, or was defending, the case. The record shows, however, that, just prior to the inquiry objected to, defendant's counsel stated to the court, out of the hearing of the jury, that he was representing the insurance company inquired about. The ground of the objection to the inquiry being without substance, there was therefore no error in overruling it.

Defendant assigns error for the exclusion of testimony respecting a statement made by John Knox some time after the accident. Defendant says that the statement was admissible as a part of the res gestæ. The statement...