Mahan v. Baile

• Decision Date: 13 December 1948
• Docket Number: 40629
• Citation: 216 S.W.2d 92,358 Mo. 625
• Parties: William J. Mahan, Respondent, v. George W. Baile and Elfine Dale Baile, Appellants
• Court: Missouri Supreme Court

216 S.W.2d 92

358 Mo. 625

William J. Mahan, Respondent, v. George W. Baile and Elfine Dale Baile, Appellants

No. 40629

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

R. B Caldwell, Stanley Garrity, John W. Oliver and Caldwell, Downing, Noble & Garrity for appellants.

(1) The venue was improper since defendants neither lived nor were personally served with summonses in Jackson County, and both defendants were residents of Jasper County, Missouri, when the writ of attachment issued on the ground defendant Dale was a nonresident of the State of Missouri. State ex rel. Auchincloss, Parker & Redpath, Inc. v. Harris, 349 Mo. 190, 159 S.W.2d 799; Trinidad Asphalt Mfg Co. v. Standard Oil Co., 214 Mo.App. 115, 258 S.W. 64; Bieser v. Woods, 347 Mo. 437, 147 S.W.2d 656; Secs. 871, 872, 1450, R.S. 1939; Sec. 847.73, Rev. Stat. Ann. of Mo.; 4 Am. Jur., Attachment and Garnishment, sec. 437, p. 824; 6 C.J., Attachment, sec. 46, p. 48. (2) An entry of appearance after unsuccessful attack on jurisdiction because of lack of venue and illegal attachment does not waive statutory venue requirements. Mertens v. McMahon, 334 Mo. 175, 66 S.W.2d 127; Sec. 1442, R.S. 1939; Sec. 847.61, Rev. Stat. Ann. of Mo. (3) Instruction 1 is prejudicially erroneous because it directs a verdict for plaintiff even though he was contributorily negligent in failing to sound a warning, and ignores such pleaded and proven defense. State ex rel. North British & Mercantile Ins. Co. v. Cox, 307 Mo. 194, 270 S.W. 113; Neuhaus v. United Neighbors, 150 S.W.2d 590. (4) The court erred in giving Instruction 1, because it so commingled issues of primary negligence and negligence under the humanitarian rule that the instruction was confusing and misleading and, by such confusion and reiteration, directed a verdict on both primary and humanitarian negligence. Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393. (5) The court erred in giving Instructions 1 and 2, because said instructions, attempting to respectively submit plaintiff case under primary negligence and the humanitarian doctrine. By confusing, overlapping and commingling the elements and issues of both primary negligence and negligence under the humanitarian rule, had the same effect as if both theories of recovery had been given to the jury in one instruction. Reiling v. Russell, 348 Mo. 379, 153 S.W.2d 6; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116. (6) Submitted this case on two inconsistent, irreconcilable and conflicting theories. Crews v. Wilson, 312 Mo. 643, 281 S.W. 44; Tunget v. Cook, 84 S.W.2d 970; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1; Elliott v. Richardson, 28 S.W.2d 408; Brown v. Wheelock, 83 S.W.2d 911. (7) By referring to "highest degree of care" in Instruction No. 1 and "ordinary care" in Instruction 2, rendered the same not only confusing but conflicting. White v. Powell, 346 Mo. 1195, 145 S.W.2d 375. (8) The verdict is excessive. Tash v. St. Louis-S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Schupback v. Meshevsky, 300 S.W. 465; Lynch v. Baldwin, 117 S.W.2d 273; Sanders v. Quercus Lumber Co., 187 Mo.App. 408, 173 S.W. 740; Kenner v. Mo. Pac. Railroad Co., 269 S.W. 635.

Charles Rubins, Chester B. Kaplan and Walter A. Raymond for respondent.

(1) The joint written entry of appearance "for all purposes" of the defendants filed in this cause by which they obtained the release of the attachment against the property of defendant, Elfine Dale (now Baile) conferred jurisdiction over the persons of both defendants which could not be later withdrawn. Secs. 872, 1442, R.S. 1939; Johnson v. Frank, 191 S.W.2d 618; Bieser v. Woods, 347 Mo. 437, 147 S.W.2d 656; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Donovan v. Gibbs, 268 Mo. 279, 187 S.W. 46; General American Life Ins. Co. v. Leavenworth, 347 Mo. 876, 149 S.W.2d 360; Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303; Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Maurer v. Phillips, 182 Mo.App. 440, 168 S.W. 669; Poe v. Western Buyers' Assn. Wholesale Grocers, 238 S.W. 547. (2) The issue of jurisdiction of the trial court over the persons of the defendants was not preserved in the record of the court below and is not before this court. That issue was not litigated in the trial court. Hockaday v. Gilham, 206 Mo.App. 132, 226 S.W. 991; Billingsley v. Kansas City Pub. Serv. Co., 353 Mo. 1234, 191 S.W.2d 331; State ex rel. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677; Bradshaw v. Bradshaw, 166 S.W.2d 805; Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 179 S.W.2d 39; Laughlin v. Boatmen's Natl. Bank, 163 S.W.2d 761; Nulsen v. Natl. Pigments & Chemical Co., 346 Mo. 1246, 145 S.W.2d 410. (3) That issue was not kept alive by a motion for a directed verdict at the close of all the evidence in the case. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977; Ellis v. Kansas City Pub. Serv. Co., 203 S.W.2d 475; Neal v. Kansas City Pub. Serv. Co., 353 Mo. 779, 184 S.W.2d 441; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889. (4) Both defendants became actors in the case and invoked the jurisdiction of the court in many ways which constituted entries of appearance. Donovan v. Gibbs, 268 Mo. 279, 187 S.W. 46; Bieser v. Woods, 347 Mo. 437, 147 S.W.2d 656; Merchants' Savings & Loan Assn. v. Ancona Realty Co., 78 S.W.2d 470; Maurer v. Phillips, 182 Mo.App. 440, 168 S.W. 669. (5) Instruction 1 was not prejudicially erroneous in failing to negative contributory negligence as that was an affirmative defense fully submitted, so far as desired by defendants, by their Instructions E and F. Rhineberger v. Thompson, 202 S.W.2d 64; Billingsley v. Kansas City Pub. Serv. Co., 191 S.W.2d 331; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104. (6) Instruction 1 is not subject to the charge made against it that it commingled issues of primary negligence and humanitarian negligence is a way harmful to the defendants. Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Tash v. St. L. & S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Hart v. Kansas City Pub. Serv. Co., 142 S.W.2d 348; State ex rel. Kansas City Pub. Serv. Co. v. Bland, 187 S.W.2d 211; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467; Wright v. Osborn, 201 S.W.2d 935; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449. (7) The court did not commit error in giving instructions 1 and 2. Each was supported by substantial evidence and there was no conflict or confusion between the two instructions. Robinson v. Kansas City Pub. Serv. Co., 345 Mo. 764, 137 S.W.2d 548; Bumgardner v. St. Louis Pub. Serv. Co., 340 Mo. 521, 102 S.W.2d 594; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Williams v. St. Louis Pub. Serv. Co., 335 Mo. 335, 73 S.W.2d 199; Hillis v. Rice, 151 S.W.2d 717; Sec. 8383, R.S. 1939; Sec. 140 (B) of the Missouri Code of Civil Procedure; Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006; Null v. Stewart, 78 S.W.2d 75; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580. (8) The verdict is not excessive. It is only modest compensation for the injuries sustained. Clader v. City of Neosho, 198 S.W.2d 523; Williamson v. Wabash R. Co., 355 Mo. 248, 196 S.W.2d 129; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Rosenberg v. Terminal Railroad Assn. of St. Louis, 159 S.W.2d 633; Kennedy v. Hartwig-Dischinger Realty Co., 201 S.W.2d 475; Zeller v. Wolfe-Wilson Drug Co., 51 S.W.2d 881; Lanasa v. Downey, 201 S.W.2d 179.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

This appeal involves the trial of an intersectional automobile collision in which the plaintiff recovered a judgment of $ 8,000.00. The defendants admit "that the plaintiff made a submissible case for a jury." Consequently we are concerned with but three problems: (1) whether the court erred in overruling the challenges to its jurisdiction, (2) whether there was prejudicial error in the instructions and (3) whether the verdict was excessive.

The defendants' challenge of the court's jurisdiction is based upon these facts and this sequence of events: The automobile collision was in Kansas City. The plaintiff, a resident of Kansas City, filed suit in the Circuit Court of Jackson County on November 21, 1945. The defendants were not served with summons in Jackson County and on November 23, 1945, the plaintiff, by affidavit, sued out a writ of attachment against the defendant, Elfine Dale, and attached her 1942 Buick automobile, on the ground that she was a nonresident of Missouri. The defendant Dale and the defendant George W. Baile were married in Parsons, Kansas, on November 22, 1945, the day before the attachment was filed, and, therefore, it is claimed that she became a citizen and resident of Joplin in Jasper County, Baile's home. Since they became and were residents of Jasper County and were not personally served with summons in Jackson County it is charged that the venue of the action was improper and that the court did not have jurisdiction of their persons in Jackson County. The argument is that the suit was commenced by summons on November 21, 1945, and the defendants not being found in Jackson County, the proper venue was Jasper County and an attachment could not then be sued out so as to confer jurisdiction. Mo. R.S.A., Sec. 1450. The defendants accordingly filed pleas in abatement and motions to dismiss which were overruled on January 14, 1946.

Following the overruling of the motions to dismiss and the pleas in abatement the record recites: "And, thereafter, on Monday, January 14, 1946, the same being the first day of the regular...