May v. Bradford, 49400

• Decision Date: 08 July 1963
• Docket Number: No. 49400,No. 2,49400,2
• Citation: 369 S.W.2d 225
• Parties: Tom MAY, Respondent, v. Theodore George BRADFORD, Appellant, and William W. Mann, Respondent
• Court: Missouri Supreme Court

Page 225

369 S.W.2d 225

Tom MAY, Respondent, v. Theodore George BRADFORD, Appellant and William W. Mann, Respondent.

No. 49400.

Supreme Court of Missouri, Division No. 2.

July 8, 1963.

Dwight Crader, Sikeston, for appellant Bradford.

Hal E. Hunter, Jr., New Madrid, for respondent May.

Harold D. Jones, Bock & Jones, New Madrid, for respondent (Defendant) William Mann.

STORCKMAN, Presiding Judge.

The defendant Theodore George Bradford has appealed from a $25,000 judgment rendered against him and in favor of the plaintiff Tom May in an action for the wrongful death of plaintiff's wife Vivian May who died as a result of injuries received when an automobile in which she was a passenger collided with a truck. At the end of the plaintiff's case, a motion for a directed verdict was sustained as to the defendant William W. Mann. A previous judgment in favor of the plaintiff was reversed and the cause remanded for a new trial. See May v. Bradford, Mo., 348 S.W.2d 133. On this appeal the defendant Bradford contends that the trial court erred in sustaining the defendant Mann's motion for a directed verdict and in giving two instructions offered by the plaintiff.

On September 7, 1958, Mrs. May was a passenger in the right front seat of a Buick automobile owned and being driven by the defendant Mann north on U. S. Highway 61, 1/10th of a mile south of the intersection of Route AA in Jefferson County, Missouri, at which time and place the Buick and a Ford truck being driven southwardly by the defendant Bradford collided. At the time of the collision, Bradford's Ford truck was undertaking to pass a Studebaker automobile also being driven south. Mrs. May was thrown from the Buick automobile and was found underneath the Studebaker. She died shortly thereafter.

At the place in question the highway is of concrete construction consisting of two lanes of traffic each about 10 feet in width. While the highway runs generally north and south, it is upgrade at the place of collision and curves to the west for southbound traffic. The east shoulder of the highway was about 13 feet wide and the one on the west 11 feet. There were no yellow stripes on the highway indicating a no-passing zone in the area of the accident. The casualty occurred about 11 a. m. on a clear, dry day.

There was broken glass, grass, oil, grease and other debris on the center line of the highway and scattered in both lanes of traffic. There were no skidmarks in the southbound lane of traffic. Two skidmarks on the highway made by the rear dual wheels of the truck in the northbound lane were 2 feet 6 inches east of the center line. The bed of the truck extended about 5 feet behind the rear wheels. There were skidmarks made by the Buick which measured 178 feet in lenght indicating that the Buick had gone almost wholly onto the east shoulder, then came back onto the pavement, and made a short arc-like skidmark in the middle of the northbound lane at the point where the debris was on the pavement. The Buick came to rest on the east shoulder 47 feet north of the debris, the truck stopped partially in the southbound lane but mostly on the west shoulder 152 feet south of the debris, and the Studebaker was standing behind the truck.

The defendant Bradford makes no contention that the evidence of his negligence was insufficient for submission to the jury. In brief the defendant Mann testified in the plaintiff's case that he was driving about 60 miles per hour when he first saw the truck 350 to 400 feet north of him undertaking to pass the Studebaker. Mr. Mann applied his brakes immediately and went partially onto the shoulder until something, apparently a lip on the edge of the pavement, caught his wheels and turned his car back onto the pavement into a sideways skid and collision with the Ford truck. The testimony of the defendant Bradford given in his own case was to the effect that he was traveling 45 to 50 miles per hour when he undertook to pass the Studebaker; that his front wheels were about even with the rear wheels of the Studebaker when he saw the Buick approaching 1800 or 2000 feet down the road at a speed of 80 or 90 miles an hour; that he slowed down to drop behind the Studebaker but the Studebaker also slowed up so he speeded up and attempted to complete the pass; and that when the collision occurred his front wheels were in the southbound lane although the rear wheels and the rear end of the truck were in the northbound lane.

A member of the State Highway Patrol arrived at the scene shortly after the accident and testified to the physical conditions as well as statements made by the parties. Another witness, John Denton Hughey, was sitting in his automobile in a churchyard near the intersection of Route AA and U. S. Highway 61. He testified that at the time of the collision the front wheels of the Bradford truck were straddling the center line and most of the rear of the truck in the northbound lane. He estimated the speed of the truck at 60 miles an hour and the Studebaker at 35 miles per hour. When he first saw the Buick it was approximately 100 feet from the point of impact and mostly on the shoulder. He could not estimate its speed.

The appellant Bradford contends that plaintiff's evidence considered in its most favorable light made a submissible case against the defendant Mann, and that the court erred in sustaining defendant Mann's motion for a directed verdict at the close of the plaintiff's case. When offered, the plaintiff confessed the motion and in view of that admission the court sustained it. The court then advised the jury that defendant Mann's motion 'for a directed verdict in his favor was confessed or admitted by the plaintiff, and * * * defendant Mann is no longer in the lawsuit.' At that time the defendant Bradford had not testified. The trial court and the parties obviously treated the event as a voluntary dismissal by the plaintiff and so shall we. Since our view is that the defendant Bradford has suffered no legal prejudice in these circumstances, we need not examine the evidence to determine if a submissible case was established against the defendant Mann at the time the motion for directed verdict was offered and sustained.

As a general rule a plaintiff may dismiss as to a part of the defendants at any stage of the proceedings without discharging or lessening the liability of those remaining in the case. Civil Rule 67.01, V.A.M.R.; Section 510.130, RSMo 1959, V.A.M.S.; Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.2d 50, 61; Kregain v. Blake, 292 Mo. 498, 239 S.W. 495, 500; Hunter Land & Development Co. v. Caruthersville Stave & Heading Co., 223 Mo.App. 132, 9 S.W.2d 531, 533.

One of the defendants in a tort action cannot complain of the court's action in directing a verdict in favor of another defendant since all such defendants are jointly and severally liable. McCamley v. Union Electric Light & Power Co., Mo.App., 85 S.W.2d 200, 201; Schneider v Campbell 66 Express, Inc., Mo.App., 324 S.W.2d 363, 366.

The defendant Bradford asserts that he was prejudiced by the dismissal in that the jury under the evidence could have rendered a verdict against both defendants or could have found that the defendant Mann was solely responsible. The jury found that the defendant Bradford was liable and he makes no claim that a submissible case was not made against him. He has not demonstrated...