Logsdon v. Duncan
| Citation | 316 S.W.2d 488 |
| Decision Date | 08 September 1958 |
| Docket Number | No. 46281,No. 2,46281,2 |
| Parties | Arch LOGSDON, Plaintiff-Appellant, v. Leonard W. DUNCAN, Defendant-Appellant |
| Court | United States State Supreme Court of Missouri |
John E. Honsinger, Kansas City, for appellant.
Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.
BARRETT, Commissioner.
The plaintiff, Arch Logsdon, the defendant, Leonard W. Duncan, and William Gover and Guthrie Rogers were employed by the Kansas City Board of Education. Rogers was a bricklayer, Logsdon was his helper, and Duncan and Gover were common laborers. They were engaged in remodeling and repairing the caretaker's old two-story brick and stone residence at Yates School. Among other tasks they removed an oval-shaped window from the front gable and replaced it with stucco and for that purpose had a scaffold across the front of the house about even with the guttering. On October 17, 1950, Duncan and Gover were engaged in removing stone and bricks from the gable. Rogers was laying bricks around a first-floor window near an angle in the house, just below an old chimney. Logsdon was cleaning old bricks and carrying them to Rogers. A child's ball and possibly some sticks and pieces of bricks were lodged behind the chimney. As Logsdon walked towards the first-floor window with an armload of bricks Duncan, with one foot on the scaffold and one leg on the edge of the roof, punched or otherwise dislodged the ball and other debris from behind the chimney and half a brick hit Logsdon on the head.
Upon this the second trial of Logsdon's action against Duncan to recover damages for his resulting, negligently inflicted, personal injuries a jury awarded Logsdon $17,500. The defendant Duncan filed an alternative motion for judgment or for a new trial on the issue of liability only. The plaintiff Logsdon filed a motion for a new trial on the issue of damages only. The trial court sustained the defendant Duncan's motion for a new trial 'for the reason the Court erred in giving plaintiff's instruction No. One.' Subsequently, upon plaintiff Logsdon's 'Motion For Rehearing Of Plaintiff's And Defendant's Motions For New Trial,' the trial court reconsidered the matter, set aside its prior orders, and sustained plaintiff Logsdon's motion for a new trial on the issue of damages only for the stated reasons that the jury's verdict 'on the issue of damages was contrary to the direction of the Court' and 'was reached as a result of mistake by the jury and an improper verdict on said issue rendered thereby,' the court specifically overruled all other grounds set forth in plaintiff's motion. The court then sustained defendant Duncan's motion for new trial on the issue of liability for 'the sole reason that the Court erred in giving plaintiff's instruction numbered one (1) when there was no evidence in the record that defendant 'threw' the brickbat in question,' and the court specifically overruled all other grounds set forth in Duncan's motion for new trial and denied his motions for a directed verdict. Both the plaintiff Logsdon and the defendant Duncan have perfected appeals to this court.
At the outset we are confronted with Duncan's motion to dismiss Logsdon's appeal for the stated reason that his notice of appeal 'does not designate the judgment or order of the Court from which he seeks to appeal, as required by Section 512.070(1), R.S.Mo., 1949 [V.A.M.S.].' It is said that the 'purported notice' does not comply with the express requirements of the statute in that it 'designates no order of any specified date,' the nature of the order on the issue of liability is not specified, 'no date is given to delineate the order' and the notice is so vague and ambiguous as not to meet the statutory requirements. In support of his motion Duncan has cited the instances in which there was no final, appealable judgment or in which there was an appeal from an order overruling a motion for a new trial. Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598; State ex rel. Kansas City Stock Yards Co. v. Trimble, 333 Mo. 51, 62 S.W.2d 473. Logsdon's notice of appeal is as follows:
'Notice is hereby given that Arch Logsdon, plaintiff in the above entitled cause, hereby appeals to the Supreme Court of Missouri from the order entered herein on April 22, 1957, sustaining defendant's motion for new trial on the issue of liability.'
We have quoted the original notice for the reason that Duncan has evidently copied the notice as it appears in the reporter's transcript and that copy of the notice omits the italicized language which obviously supplies the date and designates the only order from which Logsdon could appeal, an order sustaining defendant's motion for new trial on the issue of liability. V.A.M.S., Sec. 512.020; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657; Terrell v. Missouri-Kansas-Texas R. Co., Mo., 303 S.W.2d 641. For the reasons indicated Duncan's motion to dismiss Logsdon's appeal is overruled.
Upon oral argument Logsdon's counsel voluntarily waived his right to a new trial on the issue of damages only. Nevertheless, upon Duncan's appeal from the order granting Logsdon a new trial on the issue of damages only, it is again urged that his motions for directed verdict should have been sustained for the reason that there is no evidence that he was negligent because 'when he dislodged the brickbats' he could reasonably assume that Logsdon had received the warning and was in a place of safety. It is again agrued that he could not be charged with constructive knowledge that Logsdon would walk into the danger area east of the chimney concurrently with the fall of the brickbats. It is said that there is no evidence that any submitted act or omission of Duncan's was the proximate cause of Logsdon's injuries because at the time he, Duncan, could have looked he would have seen Logsdon in a place of safety. And, it is again contended that Logsdon was guilty of contributory negligence as a matter of law. All these and some of Duncan's other contentions are based upon the assumption that the parties are not bound upon this appeal by our previous decision of the same questions on the former appeal, Logsdon v. Duncan, Mo., 293 S.W.2d 944.
While the parties in briefing this question have not carefully noted and adhered to the differences in 'res judicata' and the 'law of the case' (30A Am.Jur., Sec. 331, p. 378; Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179; Taylor v. Sartorious, 130 Mo.App. 23, 108 S.W. 1089), Duncan insists that the submissibility of Logsdon's case be re-examined. We have again carefully examined the record and briefs on the former appeal and have compared them with this record, and with but minor exceptions the records are substantially identical. There was but little difference in the evidence in the two trials, the briefs and cases cited in the two appeals are almost identical. It has not been demonstrated that there was any mistake or manifest injustice in our former opinion and, the records and issues being substantially identical, the former opinion in so far as it dealt with the primary questions of negligence, proximate cause and contributory negligence is the law of this case and these issues are not open questions upon this appeal. 3 Am.Jur., Secs. 985-994, 1000, pp. 541-549, 553; Mahany v. Kansas City Rys. Co., Mo., 254 S.W. 16, 29 A.L.R. 817; Maxie v. Gulf, Mobile & O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 10 A.L.R.2d 1273.
As indicated, the court first sustained Duncan's motion for a new trial for the reason that the court had 'erred in giving plaintiff's instruction No. One,' subsequently the court sustained the motion for 'the sole reason that the Court erred in giving plaintiff's instruction numbered one (1) when there was no evidence in the...
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