Leaman v. Campbell 66 Exp. Truck Lines

• Decision Date: 13 January 1947
• Docket Number: 39661
• Citation: 199 S.W.2d 359,355 Mo. 939
• Parties: Maurice R. Leaman, Appellant, v. Campbell 66 Express Truck Lines, Inc
• Court: Missouri Supreme Court

199 S.W.2d 359

355 Mo. 939

Maurice R. Leaman, Appellant, v. Campbell 66 Express Truck Lines, Inc

No. 39661

Supreme Court of Missouri

January 13, 1947

Rehearing Denied February 10, 1947.

Appeal from Polk Circuit Court; Hon. Charles H. Jackson Judge.

Reversed and remanded.

Hamlin & Hamlin, E. C. Hamlin, J. N. Burroughs and L Cunningham for appellant.

(1) The verdict is against the law and the evidence and the greater weight of evidence.Secs. 8383, 8385, R.S. 1939;Benoist v. Driveway Co.,122 S.W.2d 86;Tabler v. Perry,85 S.W.2d l.c. 478;Hillis v. Rice,151 S.W.2d l.c. 724;Booth v. Gilbert,79 F.2d 790;Cox v. Reynolds,18 S.W.2d 575.(2)The court erred in permitting counsel for the defendant to use deposition of witness Manning, previously taken by defendant to try to impeach the witness on cross-examination; without first having asked the witness questions pertaining to the facts, thereby laying a foundation whereby deposition could be used to impeach said witness.Vest v. S.S. Kresge Co.,213 S.W. 165;Winegar v. Chicago, B. & O.R. Co.,163 S.W.2d 357;State v. Patton,225 Mo. 245.(3)The court erred in admitting in evidence over the objection of the plaintiff, defendant's exhibit A (plat or map) and in permitting the same to be exhibited to the jury as a true and correct map or plat of scenes, locations and distances of the scene of accident, without the proper showing of correctness and authenticity of said map or plat (exhibit A).Hunt v. M., K. & T.R. Co.,152 Mo.App. 182;Williamson v. M., K. & T.R.,115 Mo.App. 72;Myerson v. Peoples Motorbus Co.,297 S.W. 451.(4)The plaintiff was entitled to show by proper evidence his pecuniary loss, by reason of death of his wife.Of the value of her services to him and the expenses directly caused by her death.Sing v. St. Louis-S.F.R.,30 S.W.2d 37;McCullough v. W.H. Lumber Co.,216 S.W. 803;Coleman v. Land Co.,105 Mo.App. 254.(5) Instruction number 9 does not state the laws applicable to this case.The effect of this instruction is that the plaintiff cannot recover if there was any negligence on the part of the driver of the car in which the deceased was riding, regardless of any concurring negligence on the part of the defendant.Shannon v. Unsell,51 S.W.2d 1038;Faukes v. St. Louis-S.F.R.,69 S.W.2d 936.(6)Defendant's instructions 9 and 15 donot declare the law in this case; in effect it requires the plaintiff to prove the defendant's negligence beyond a reasonable doubt, also it tells the jury if they find the negligence to be evenly divided they must find for the defendant; which is not the law in this case.Tabler v. Perry,85 S.W.2d 471;Payne v. Reed,59 S.W.2d 43;Aly v. Terminal Railroad Assn. of St. Louis,78 S.W.2d 851;23 C.J., p. 12, sec. 1745;64 C.J., p. 710, sec. 619.(7)Defendant's instructions numbered 15, 16 and 18 impose a greater burden on plaintiff than the law requires, and also it constitutes a repetition of that imposing the burden of proof upon plaintiff; and is improper as unduly emphasizing subject; and they do not declare the law in this case.Miller v. Williams,76 S.W.2d 355;Harrison v. Bence,270 S.W. 363;Fantroy v. Schirmer,296 S.W. 235.(8)Defendant's Instruction 11 was erroneous; in the first part of the instruction by using the word "may"; "may not be imputed to the plaintiff's wife"; it implied permission to the jury to impute negligence to plaintiff's wife.This instruction was also erroneous for it authorized the jury to impute the negligence of the driver of the automobile to the guest without finding that the driver of the automobile and the guest were on a joint enterprise, or the relation between them was such that the acts or omissions were under the law the acts or omissions of the guest.Hall & Robinson v. Wabash R. Co.,80 Mo.App. 463;39 C.J., p. 1393, sec. 4;Smith v. St. Louis-S.F.R. Co.,9 S.W.2d 939;Borrson v. M.-K.-T.R. Co.,161 S.W.2d 227.(9)The court erred in not sustaining the objection made by plaintiff to certain statements made by attorneys for the defendant in their argument to the jury; and the court further erred in not instructing the jury to disregard said statements.Dodd v. M.-K.-T.R. Co.,184 S.W.2d 454;Tevlin v. Federal Life Ins. Co., 127 S.W.2d 743.

Neale, Newman, Neale, Freeman & Wampler, Homer D. Wampler, Jr., Elvin S. Douglas and Herman Pufahl for respondent.

(1) The motion for a new trial was not filed within ten (10) days as provided by law.Laws 1943, sec. 116, General Code for Civil Procedure, page 388.(2)Appellant did not file a transcript of the record within ninety (90) days after the appeal was taken, as provided by Section 135 (a).Laws 1943, p. 393, sec. 135.(3)Appellant failed to file in this court a transcript within ninety (90) days from the date of filing the notice of appeal.Laws 1943, p. 394, sec. 137.(4)The trial court was correct in failing to sustain appellant's motion to grant further time for filing the transcript of appeal because said motion was filed more than six (6) months from the date of the notice of appeal.Rule of the Supreme Court of Missouri, 3.26, at p. 31.(5)Appellant did not print the transcript of appeal and, therefore, was required to deliver to respondent a typewritten copy thereof within fifteen (15) days after the date on which appellant is required to file said transcript in the office of the clerk of the trial court.Rules of the Supreme Court of Missouri, 1.04, Sub-div.(e), pp. 9, 10.Inasmuch as no motion for new trial was filed within the time required by law and no transcript, together with the bill of exceptions was filed, as required by law, there is nothing before this court to review and the appellant's brief should not be considered by this court.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action by a husband under the penalty section(Sec. 3652 R.S. 1939) of the death statute for $ 10,000 damages for death of his wife alleged to have been caused by the negligence of defendant.Verdict and judgment went for defendant and plaintiff appealed.

Defendant(respondent) has filed motion to dismiss the appeal; submitted the cause on the motion, and did not brief on the merits.This is a second motion to dismiss the appeal, as will appear infra.We will first rule the motion.The grounds alleged in the motion are: (1) That this court does not have jurisdiction of the appeal; (2) that this court had no authority to extend the time in which to file transcripts; (3) that appellant did not deliver to respondent as required by rule 1.09 two copies of his brief 30 days before day on which cause was set for hearing; and (4) that appellant did not print the entire transcript and did not serve respondent with a typewritten copy thereof within 15 days after the date on which appellant was required by civil code sections 135(a)and138(Laws 1943, pp. 393, 394) to file transcript with the clerk of the trial court.

The trial commenced June 1, 1945, and verdict returned June 2d.Motion for a new trial was filed June 12th; overruled June 28th; notice of appeal filed July 5th. Sec. 135 of the civil code(Laws 1943, p. 393) provides that within 90 days after an appeal is taken the appellant shall file the transcript of the record with the clerk of the trial court.The 90 days expired October 3rd, but August 25th the trial judge extended the time for filing transcript 60 days.The 60 days extension from October 3rd expired December 2d.On December 2d, the trial court again extended the time for 60 days.The second 60 days extension expired January 31, 1946, which was 26 days in excess of 6 months from time of appeal.Seerule 3.26.

The transcript was delivered by the reporter to plaintiff's counselJanuary 28th, and copy served on defendant's counselJanuary 29th.February 12th, the trial judge approved the transcript and it was filed with the clerk of the trial courtFebruary 18th.A certified copy of the transcript was received by the clerk of this courtMarch 29th, but was returned same day because a certified copy was sent instead of the original.Thereafter plaintiff sought unsuccessfully in the trial court to get time further extended for filing transcript.

April 13, 1946, respondent filed motion here to dismiss the appeal, and May 7th the appeal was dismissed.June 10th plaintiff filed motion to set aside the order of dismissal and asked that time for filing transcript be enlarged or extended.July 12th the motion to set aside the order of dismissal was sustained; cause was reinstated, and time for filing transcript was extended to July 26th.July 22d transcript was filed in this court and the cause set for argument September 13th, and the second motion to dismiss filed September 10th.July 27th, plaintiff's (appellant's) brief, with service copy, was filed.The service copy shows service on defendant's counselApril 4, 1946.

In the file is a certificate of the court reporter stating that he was informed by plaintiff's counsel, when transcript was ordered, that plaintiff would have to pay for the transcript in installments; that the cost of the transcript was $ 201.60; that this sum was paid in three installments, and that the last installment was paid January 28, 1946, the day when transcript was delivered by the reporter to plaintiff's attorney.There is also in the file an affidavit of the plaintiff that his income was $ 35 per week and that out of that he had to pay rent and to provide for his four children, and that he had to pay for the transcript in installments.

That part of the transcript which would be termed the record proper under the old practice recites that verdict and judgment were on June 2, 1945, and that the motion for a new trial was filed June 28th, but that part of the...