Loveless v. Locke Distributing Co.

• Decision Date: 10 March 1958
• Docket Number: No. 2,No. 45860,45860,2
• Citation: 313 S.W.2d 24
• Parties: Charles D. LOVELESS, Appellant, v. LOCKE DISTRIBUTING COMPANY, Inc., and Frankfort Eugene Turner, Respondents
• Court: Missouri Supreme Court

Page 24

313 S.W.2d 24

Charles D. LOVELESS, Appellant, v. LOCKE DISTRIBUTING COMPANY, Inc., and Frankfort Eugene Turner, Respondents.

No. 45860.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Opinion Modified on Courts Own Motion and Modified Opinion

Filed May 12, 1958.

Rehearing Denied May 12, 1958.

Riddle & Baker, Veryl L. Riddle, Charles H. Baker, Malden, for appellant.

Jones & Jones, Kennett, for respondents.

STORCKMAN, Presiding Judge.

Plaintiff obtained a verdict and judgment for $10,000 for personal injuries and damages resulting from a collision between his automobile and a motor truck of the defendant Locke Distributing Company, Inc. Defendants' motion for new trial was sustained and the plaintiff appealed.

The accident occurred August 4, 1954, around noontime, on County Highway B in Dunklin County about 1 1/10 miles west of Holcomb, Missouri. The highway, which runs generally east and west, is of blacktop construction, the paved portion being about 20 feet wide. A bridge at the place in question is 22 feet wide and elevated about 1 1/2 feet above the surface of the highway. There are guard rails and markers on the sides of the bridge. From the east end of the bridge the highway curves to the northeast or to the left of a traveler coming from the west.

The plaintiff, aged 65, was driving his 1938 Chevrolet automobile westwardly accompanied by his 17-year-old stepson, Billy Dean Vaughn. The defendant Turner, age 29, a driver-salesman for the defendant Locke Distributing Company, was driving the company's 1948 Dodge one and one-half ton delivery truck in an eastwardly direction. The truck, equipped with dual wheels in the rear, was loaded with 180 cases of beer weighing approximately 8,100 pounds. The collision occurred shortly after the truck had crossed the bridge. The left front of plaintiff's automobile was damaged to such an extent that it could not be driven after the accident. The damage to the truck was in the area of the left rear wheels; a tire on one of the dual wheels was blown out and there was damage to the brake system.

It was also undisputed that after the accident plaintiff's automobile was on the north side of the highway about 41 feet east of the bridge headed slightly southwest with the right rear wheel on the gravel shoulder and the other wheels on the pavement; and defendant's truck was 300 feet or more east of the bridge on the south side of the highway.

Plaintiff's evidence tended to prove that plaintiff had stopped his automobile about 30 feet east of the bridge on the north side of the highway with the wheels on the right side about a foot and a half off the pavement in order to permit the truck to cross the bridge ahead of him, and that the automobile was in this position when it was hit by defendant's truck. The defendants contended that the collision occurred about 113 feet east of the bridge on the south side of the pavement in the eastbound lane of travel, and that plaintiff's automobile was in motion.

The plaintiff's case was submitted solely on the issue of whether the defendant Turner negligently failed to operate the motor truck on the right-hand side of the highway. The essential fact question presented to the jury was whether the collision occurred on the north side of the highway in plaintiff's lane of travel or on the south side in the proper path of the motor truck.

The verdict and judgment were rendered May 16, 1956. The defendants' motion for a new trial, filed May 22, 1956, was sustained on August 17, 1956, with this statement of record by the trial court: 'Defendants granted new trial because verdict is excessive, and secured in part by perjured testimony.' The motion for new trial charges that: 'Said Billy Dean Vaughn has committed perjury in his testimony given before this Court.'

The motion for new trial was ruled on 87 days after its filing and 93 days after the verdict and judgment were rendered. Since this was done more than 30 days after entry of judgment, the trial court could not order the new trial of its own initiative, or an any ground not specified in the motion. Sec. 510.370, RSMo 1949, V.A.M.S.; 42 V.A.M.S. Sup.Ct. Rule 3.25; Ridenour v. Duncan, Mo., 246 S.W.2d 765. 767; Birmingham v. Kansas City Public Service Co., 361 Mo. 458, 235 S.W.2d 322, 324. It follows that the order for new trial can only be justified on the ground that Billy Dean Vaughn committed perjury since that is the only specification of perjury in defendants' motion for new trial.

Supreme Court Rule 3.22, insofar as it relates to new trials on the ground of perjury, provides: 'The court may award a new trial of any issue upon good cause shown and in any case where * * * the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just claim or defense, it shall, on motion of the proper party, grant a new trial, * * * .' See also Sec. 510.330.

The appellant's first contention is that the charge of perjury in respondents' motion for a new trial was not a sufficient compliance with Suprme Court Rule 3.23 to preserve the question for review. However, since the motion for new trial was sustained, we do not rule this contention but will review the record to determine if there is legal justification for the order made.

In one of the early cases involving the then new statutory provision for appeals from an order granting a new trial and other interlocutory orders, it was stated that within the limit of the record brought up for review '* * * it is not only our prerogative, but obvious duty, to review the action of the circuit court, and determine from the law and the facts of the case whether the circuit court exercised a sound judicial discretion * * *' in granting the defendant a new trial. Merriam v. St. Louis, C. G. & Ft. S. Ry. Co., 136 Mo. 145, 36 S.W. 630, 631. See also Bushman v. Bushman, 311 Mo. 551, 279 S.W. 122, 125.

In their brief, defendants assert that Billy Dean Vaughn committed perjury when he testified: (1) that the collision occurred 30 feet east of the bridge; (2) that the 'right two' wheels of plaintiff's car were off and the 'left two' were on the pavement; and (3) that plaintiff's car was stopped when the collision occurred. They state that Vaughn's perjury is shown by 'his testimony in the instant case before this court, his testimony in a previous trial of this same cause before the same trial court on April 6, 1955, and his testimony given by deposition on February 13, 1956,' and that 'A careful reading of the testimony of Billy Dean Vaughn * * *, and his testimony given in the former trial * * *, will divulge the perjury of this witness in attempting to make his testimony conform to certain physical facts to be hereinafter referred to which were brought out at the first trial of this cause.' Thus it appears that the defendants rely upon prior inconsistent testimony of the witness Vaughn and conflicts between his testimony and 'physical facts' alleged to have been established by the defendants' evidence to support the charge of perjury.

The 'physical facts' to which the respondents refer is the testimony of highway patrolman J. L. Petty and the defendant Turner. Petty investigated the accident and testified that he found dual wheel skid marks on the south side of the highway; that the ones furtherest north were 6 feet from the south edge of the pavement, were 8 feet long and stopped 113 feet from the east end of the bridge, and there was another skid mark near the right edge of the pavement. Petty did not undertake to say that the marks were made by defendant's truck or under what circumstances they were made. He did not testify that he found any debris on the pavement. Turner testified that the force of the collision 'knocked the duals out, and that's when it stopped skidding.' On this premise the respondents conclude: 'It necessarily follows as a physical fact that this collision occurred at a point 113 feet east of the Dunklin County Highway B at a point on the south side of said highway, which would have been Respondent's proper side of the highway. The reason for this is that it would have been an impossibility for the truck to put down skidmarks after the brake hose had been broken.'

We cannot agree that the testimony of Petty and Turner establishes as a physical fact that the collision occurred 113 feet east of the bridge or that skid marks could not be made by the truck after its air brakes were damaged. There was no evidence that the truck was wholly without brakes after the collision, and see Sec. 304.560(3) requiring two sets of adequate brakes. Plaintiff's witness Frank Long testified that he found marks on the north side of the pavement 29 feet east of the bridge. From this and other evidence the jury could reasonably find that the collision occurred at that point as claimed by the plaintiff. The question was distinctly one of fact for the jury upon the conflicting evidence.

Vaughn was 17 years of age at the time of the accident. His formal education stopped at the sixth grade and it is apparent from the transcript of his testimony at the two trials that his powers of understanding and description were limited. He testified at the second trial that the plaintiff stopped his automobile 'about 30 feet' east of the bridge with the two wheels on the right side about a foot and a half off of the pavement onto the shoulder, and that the car was in this position when the collision occurred. The plaintiff testified to the same effect and on some phases there was corroboration by plaintiff's witness Frank Long.

By agreement of counsel the complete transcript of Vaughn's testimony at the first trial was introduced in evidence and appears in the transcript on appeal. Although for reasons of brevity we are reluctant to do so, but because of its basic importance to the question...