McCamley v. Union Electric Light & Power Co.
| Decision Date | 16 July 1935 |
| Docket Number | No. 23365.,23365. |
| Court | Missouri Court of Appeals |
| Parties | McCAMLEY v. UNION ELECTRIC LIGHT & POWER CO. et al. |
Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.
"Not to be published in State Reports."
Action by Richard McCamley, an infant, by Alice McCamley, his next friend, against the Union Electric Light & Power Company, William T. Anthes, and another. From a judgment for plaintiff against the named defendants, the named defendants appeal.
Affirmed.
Green, Henry & Remmers, of St. Louis, for appellants.
Dan P. Reardon and Leo Lyng, both of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action instituted by plaintiff, Richard McCamley, a messenger boy in the service of Postal Telegraph Company, against Union Electric Light & Power Company, William T. Anthes, one of its employees, and Albert Podolsky, who had no connection with the other two defendants, the purpose of the action being to recover damages for personal injuries sustained by plaintiff on August 5, 1931, when the bicycle which he was riding northwardly upon Third street, at or near its intersection with Carr street, in the city of St. Louis, was struck in the rear by an automobile truck being operated by Anthes in the course of his employment by Union Electric Light & Power Company, causing plaintiff to be thrown off of his bicycle and immediately in front of a Packard automobile being driven by Podolsky, by which plaintiff was run over and seriously injured.
As against defendant Union Electric Light & Power Company and defendant Anthes, its driver, plaintiff pleaded and relied upon negligence under the humanitarian doctrine in failing to have stopped or have swerved the truck after plaintiff's position of imminent peril was or could have been discovered.
As to Podolsky, who was first joined as a party defendant when plaintiff's second amended petition was filed, the petition alleged that he negligently failed, after plaintiff had been struck and knocked into the path of his automobile, to stop, turn, or swerve the same so as to have avoided striking plaintiff, although by the exercise of the highest degree of care he could have done so.
Defendants Union Electric Light & Power Company and Anthes answered jointly by a general denial, as likewise did defendant Podolsky, whose answer, incidentally, was prepared for him by counsel for plaintiff and filed in the cause on the day of the trial when Podolsky represented that he had no funds with which to employ counsel of his own to see that his interests were protected.
At the close of the whole case the court peremptorily instructed the jury to find for defendant Podolsky, to the giving of which instruction defendants Union Electric Light & Power Company and Anthes excepted, though plaintiff himself interposed no objection. Thereupon the case was submitted to the jury as to the two defendants remaining in the case, resulting in the return of a verdict in favor of plaintiff, and against defendants Union Electric Light & Power Company and Anthes, in the sum of $3,500. Judgment was rendered accordingly; and the joint appeal of Union Electric Light & Power Company and Anthes has followed in the usual course.
As a matter of chief insistence, appellants argue that the court erred as to them in sustaining the demurrer of their codefendant, Podolsky.
It is the general rule, just as appellants themselves recognize, that one or more of the defendants in a personal injury action cannot complain of the action of the court in sustaining a demurrer to the evidence interposed by another defendant, this for the reason that inasmuch as all the defendants in such an action are both jointly and severally liable to the plaintiff, the latter is the only one who is prejudiced and in a position to complain if the court erroneously relieves one of the defendants from liability. Leighton v. Davis (Mo. Sup.) 260 S. W. 986; Brickell v. Fleming (Mo. Sup.) 281 S. W. 951.
Appellants seem to think, however, that the facts of this case take it outside the application of the general rule, and in support of their point they argue that there was substantial evidence of negligence on Podolsky's part as charged against him in plaintiff's petition; that plaintiff's counsel desired to have the question of Podolsky's liability taken out of the case so as to indicate to the jury that there was no negligence on his part, and that the sole responsibility for the accident rested with appellants; that the court, in sustaining the demurrer to the evidence, became a party to plaintiff's scheme; and that with the jury instructed by the court that plaintiff could not recover against Podolsky, appellants were thereby foreclosed of the right and opportunity to argue to the jury that the accident was solely attributable to Podolsky's negligence, and perhaps to have the jury so find and return a verdict accordingly.
Appellants must appreciate that whether the evidence would have warranted the submission to the jury of the question of...
To continue reading
Request your trial
-
State ex rel. Nevins v. Hughes
...Mo. 558, 37 S.W. 528; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; McCamley v. Union E. L. & P. Co., 85 S.W.2d 200. There was no "right of contribution" between Solomon and Finn before judgment against both, and Solomon on appeal could not......
-
Nevins v. Solomon
...Barr v. Nafziger Baking Co., supra, and Story v. Peoples Motorbus Co. of St. Louis, supra. None of which cases were before this court in the McCamley It is conceded by respondent here that the case of Babelman v. Bolt, supra, seems to be favorable to appellant's position, but he claims that......
-
Arnst v. Estes
...even if erroneous as to the plaintiff, is not such error as may be invoked by the other defendant for a reversal. McCamley v. Union Electric, etc, Co., Mo.App, 85 S.W.2d 200; Rose v. Squires, 101 N.J.L. 438, 128 A. Literally, scores of decisions can be quoted in such connection with various......
-
Palmer v. Lasswell
...332 Mo. 356, 59 S.W.2d 37, 39(4); Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559, 563(8); and, McCamley v. Union Electric Light & Power Co., Mo.App., 85 S.W.2d 200, 201(1). If, by Instruction A, the jury was instructed 'beyond the allegations of the petition', as defendant Lasswell......