Manthey v. Kellerman Contracting Company

• Decision Date: 04 December 1925
• Docket Number: 23934,25777
• Citation: 277 S.W. 927,311 Mo. 147
• Parties: JOSEPH MANTHEY v. KELLERMAN CONTRACTING COMPANY, Appellant
• Court: Missouri Supreme Court

277 S.W. 927

311 Mo. 147

JOSEPH MANTHEY v. KELLERMAN CONTRACTING COMPANY, Appellant

Nos. 23934, 25777

Supreme Court of Missouri

December 4, 1925

Appeal from St. Louis City Circuit Court; Hon. Victor H Falkenhainer, Judge.

Reversed and remanded (with directions).

M L. Lichtenstadt, Charles E. Morrow and W. E Moser for appellant.

(1) The sustaining of plaintiff's motion for new trial on the grounds stated in the order of the court, necessarily overrules said motion as to all other grounds. The only burden on appellant is to show that the grounds upon which the motion was sustained do not support it. Arkla Lumber Co. v. Mfg. Co., 252 S.W. 966; Krosten v. Hines, 283 Mo. 634; State ex rel. v. Thomas, 245 Mo. 74. (2) The court did not err in admitting evidence as to the settlement made by plaintiff with the Insulating & Materials Company. (a) This evidence went in without objection. (b) There was no evidence before the court that there was any paper writing in reference to the settlement. The statement of plaintiff's counsel that he had a copy of it was not evidence. (3) Instruction 5, given by the court at the request of the defendant, is not erroneous. The mere fact that plaintiff was injured is in itself no evidence that the defendant was guilty of negligence. Moss v. Wells, 249 S.W. 411; Blanton v. Dold, 109 Mo. 74. There was nothing in the character of plaintiff's injury which would be a link in a chain of circumstances tending to prove the negligence with which the defendant is charged. The facts of this case are in no respects similar to Orris v. Railway Co., 279 Mo. 1. See Moss v. Wells, 249 S.W. 411. (4) Appellant objects to respondents said abstract of record on the following grounds: (a) Because appellant's bill of exceptions herein, which included all exceptions taken during the trial of said cause and the issue thereof before the jury, was allowed, signed, sealed and filed and made a part of the record in said cause at the June term, 1923, of said court. Under the provisions of Sec. 1460, R. S. 1919, it is provided that all exceptions taken during the trial of a cause or issued before the same jury shall be embraced in the same bill of exceptions, and the court has no jurisdiction or authority to allow but one bill of exceptions as to matters occurring during the trial of a cause and before the same jury, and respondent has no right to any bill of exceptions except those exceptions contained in the appellant's bill of exceptions, and the alleged bill of exceptions is void. Atchison v. Ry. Co., 94 Mo.App. 575; Kline Cloak Co. v. Morris, 293 Mo. 493. (b) The plaintiff did not secure the certificate of the judge of the circuit court that his bill of exceptions could not be allowed and filed within the time provided by the statute, and this court did not continue this case to enable the plaintiff to file a bill of exceptions, and under Sec. 1460, R. S. 1919, even if the plaintiff has a right to file a separate bill of exceptions, that time had expired before the alleged bill of exceptions was allowed and filed. R. S. 1919, sec. 1460; Planters Bank v. Phillips, 186 S.W. 752; State v. Bailey, 181 S.W. 605. (c) The judge of the circuit court, having allowed, signed, sealed, filed and made a part of the record a bill of exceptions, exhausted his jurisdiction in respect to allowing and signing a bill of exceptions, and could not therefore allow and sign an additional bill of exceptions or a bill of exceptions on the part of the plaintiff in said cause. R. S. 1919, sec. 1460; Atchison v. Ry. Co., 94 Mo.App. 575; Kline Cloak Co. v. Morris, 293 Mo. 493.

W. H. Douglas for respondent.

(1) An appeal will not lie from the refusal of the trial court to sustain appellant's motion to set aside and vacate the court's action in allowing and filing respondent's bill of exceptions. R. S. 1919, sec. 1469; Lyons v. Rollinson, 109 Mo.App. 68; State ex rel v. Potterfield, 258 S.W. 722. (2) Respondent could not appeal in this case and in order to have his exceptions appear in the record as excepting to the action of the court in giving defendant's instructions, it was necessary for respondent to file a bill of exceptions. R. S. 1919, sec. 1469; State ex rel. v. Thomas, 245 Mo. 65. (3) Respondent had a right to file his bill of exceptions. Bradley v. Becker, 260 S.W. 565; State ex rel. v. Thomas, 245 Mo. 65. (4) Rule number 37 is not available to appellant as urged by it in this case. (a) It is not mandatory. Frohman v. Lowenstein, 260 S.W. 460. (b) This rule was adopted by the court to relieve the court from the labor of ascertaining the truth of the bill of exceptions and can be invoked by the court only, and not by the defendant. (c) If it should attempt to establish a rule of law as contended by the defendant, it would be null and void. State ex rel. v. Thomas, 245 Mo. 65. (5) The court erred in giving Instruction 5 at the request of defendant, which told the jury "that the mere fact that plaintiff was injured was in itself no evidence that defendant was guilty of any negligence." Orris v. Railroad, 279 Mo. 10; Zeis v. Brewing Co., 205 Mo. 653; Moss v. Wells, 249 S.W. 411; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 245.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

In the foregoing cause here for determination, there is involved the proceeding on appeal between the same parties, numbered 25777, as a matter incidental and subsequent to this cause. By agreement and order the later proceeding has been consolidated with this for hearing and determination. The relation of the two is such that the facts, and the questions raised in the incidental proceeding are made matters preliminary to the determination of this appeal.

This is a suit for personal injuries, wherein the jury returned a verdict in favor of the defendant. The trial court sustained plaintiff's motion for a new trial, and defendant appealed from the order. In his motion for a new trial, as shown by defendant's bill of exceptions, the plaintiff assigned as errors, among other things, the admission of incompetent evidence for defendant, and the giving for defendant of instructions numbered 5, 6, 7, 8 and 9, to the admission and giving of which (the motion recited) plaintiff objected and saved his exceptions at the time. The bill of exceptions filed by defendant set forth those instructions, but did not show exceptions saved by plaintiff at the time they were given.

The trial court in its order granting a new trial stated that it was for error committed in admitting incompetent evidence for defendant, and because defendant's Instruction 5 was erroneous. The court also filed at the time a memorandum, referred to in the order, and shown in the bill of exceptions, somewhat enlarging upon and further explaining his reasons for the action taken. The cause was heard and the new trial granted by Judge Falkenhainer, presiding in Division No. 4 of the Circuit Court of the City of St. Louis. The order granting a new trial was made on February 21, 1922. The defendant's appeal was taken on that day, and thereafter, in due time, the appeal was docketed in this court. On July 19, 1923, the defendant's bill of exceptions above mentioned, approved in writing, by counsel for plaintiff, was signed by Judge Falkenhainer, and allowed by Judge Ittner then presiding as judge in Division No. 4. The cause was placed upon the docket of the October term, 1923, in Division One of this court, and set for hearing on January 5, 1924. The defendant's abstract of the record was filed December 3, 1923. The bill of exceptions as allowed to defendant is fully set forth in the abstract filed by defendant.

On December 24, 1923, the plaintiff filed in the circuit court his motion praying for a nunc pro tunc order, to correct defendant's bill of exceptions, so as to make it show that plaintiff had excepted to the giving of instructions numbered 5, 6, 7, 8, and 9 for the defendant, alleging that the official reporter had noted his exceptions in the notes from which the bill of exceptions was made, but there had been failure to copy the same in the bill. On December 3, 1923, the parties filed here their stipulation for the continuance of the cause to the April term, 1924, reciting as a reason the pendency of the said motion for a nunc pro tunc order, and the cause on appeal was accordingly continued. The plaintiff's motion for a nunc pro tunc order was overruled. The plaintiff next, on March 6, 1924, presented to counsel for defendant plaintiff's bill of exceptions. This was a bill, complete in skeleton form. It called for insertion of all the evidence which was contained in defendant's bill and set forth defendant's instructions, and exceptions made by plaintiff at the time, to the giving of defendant's instructions numbered 5, 6, 7, 8, and 9. It showed the motion for new trial, defendant's appeal, allowance of defendant's bill of exceptions, and called for defendant's complete bill. The certificate appended to plaintiff's bill of exceptions recited that inasmuch as his exceptions to the giving of said instructions did not appear of record, the bill was allowed in order that such exceptions might be made a part of the record so as to be presented to the appellate court. Plaintiff's bill made no reference to the motion for a nunc pro tunc order. This bill was signed by Judge Falkenhainer, and signed and allowed by Judge Grimm, then presiding in Division No. 4, on March 8, 1924. Plaintiff has filed here his abstract, and defendant has filed objections thereto. Next, the defendant filed his motion to vacate the order allowing plaintiff's bill of exceptions, pleading in his motion the terms of Rule 37 of the Circuit Court of the City of St. Louis, concerning the manner in which bills of exceptions were to be...