Melenson v. Howell

• Decision Date: 07 July 1939
• Docket Number: 35588
• Citation: 130 S.W.2d 555,344 Mo. 1137
• Parties: Esther Melenson v. Charles M. Howell, Jr., Appellant
• Court: Missouri Supreme Court

130 S.W.2d 555

344 Mo. 1137

Esther Melenson v. Charles M. Howell, Jr., Appellant

No. 35588

Supreme Court of Missouri

July 7, 1939

Rehearing Denied June 14, 1939.

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

Affirmed.

Cooper, Neel & Sutherland and Frank J. Rogers for appellant.

(1) The court erred in refusing defendant's Instruction B which was a peremptory instruction in the nature of a demurrer offered at the close of the entire case, for the reason that plaintiff failed to prove a submissible case under the humanitarian doctrine and under her own testimony was guilty of negligence as a matter of law. Tate v. M.-K.-T. Railroad Co., 93 S.W.2d 873; Mahl v. Terrell, 111 S.W.2d 160; Ziegelmeier v. East St. L. & Suburban Ry. Co., 51 S.W.2d 1027; Sullivan v. Union Elec. L. & P. Co., 56 S.W.2d 97; Phillips v. Henson, 30 S.W.2d 1065; Smithers v. Barker, 111 S.W.2d 47; Stanton v. Jones, 59 S.W.2d 648; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859; Albright v. Joplin Oil Co., 229 S.W. 829; White v. Mo. Motors Distributing Co., 47 S.W.2d 245. (2) The court erred in giving plaintiff's Instruction 1, for the reasons: (a) Said instruction erroneously informs the jury that the plaintiff entered a position of imminent and inescapable peril at the time she started turning her automobile to the east and to her left, and places a duty on the defendant to act, prior to the time plaintiff was in peril. Wallace v. St. Joseph Ry., L. H. & P. Co., 77 S.W.2d 1011; Smithers v. Barker, 111 S.W.2d 47; Stanton v. Jones, 59 S.W.2d 648; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859; Albright v. Joplin Oil Co., 229 S.W. 829. (b) Said instruction fails to limit defendant's duty to act, to a time after he saw plaintiff in a position of peril and gives the jury a roving commission to determine when this duty arose and permits the jury to predicate liability on defendant's failure to act, prior to the time plaintiff was in peril. State ex rel. Fleming v. Bland, 15 S.W.2d 798; Buehler v. Festus Merc. Co., 119 S.W.2d 96; Banks v. Morris, 302 Mo. 254; Clark v. A., T. & S. F. Ry. Co., 6 S.W.2d 954. (c) Said instruction conflicts with defendant's Instruction G, and authorizes a verdict even though the jury should believe that plaintiff's negligence was the sole cause of her injury. Borgstede v. Waldbauer, 88 S.W.2d 373; Smithers v. Barker, 111 S.W.2d 47. (d) Said instruction erroneously refers to and permits the jury to consider defendant's alleged primary negligence in running a red traffic light, in determining his negligence under the humanitarian rule. Wholf v. Kansas City, Clay County & St. Joseph Ry. Co., 73 S.W.2d 195; Schulz v. Smercina, 1 S.W.2d 113; Silliman v. Munger Laundry Co., 44 S.W.2d 159; Willhauck v. C., R. I. & P. Ry. Co., 61 S.W.2d 336; Freeman v. Berberich, 60 S.W.2d 393; Shumate v. Wells, 9 S.W.2d 632; Seithel v. St. Louis Dairy Co., 300 S.W. 280.

Victor J. Schultz, Jasper DeMaria, Cowgill & Popham and Guy W. Green, Jr., for respondent.

(1) The court properly refused defendant's Instruction B in the nature of a demurrer to the evidence at the close of the entire case for the reason that plaintiff proved a submissible case under the humanitarian doctrine. Repp v. Kirkwood Ice Cream Co., 25 S.W.2d 135; Phillips v. Henson, 30 S.W.2d 1065; Becker v. Malpe, 50 S.W.2d 695; Spoeneman v. Uhri, 60 S.W.2d 9; Jordan v. St. Joe, etc. Co., 73 S.W.2d 205; Tunget v. Cook, 94 S.W.2d 921; State ex rel. v. Hostetter, 101 S.W.2d 50. (2) Plaintiff's Instruction 1 was properly given, because: (a) It required the jury to find that plaintiff was in imminent and inescapable peril after she started turning east and that defendant knew or should have known of such peril before placing any duty on defendant to act and was supported by the evidence. Phillips v. E. St. Louis, etc., Ry. Co., 226 S.W. 863; Banks v. Morris, 257 S.W. 482; Meyers v. Drake, 24 S.W.2d 116; Repp v. Kirkwood Ice Cream Co., 25 S.W.2d 135; Phillips v. Henson, 30 S.W.2d 1065; Becker v. Malpe, 50 S.W.2d 695; Sullivan v. Union E. L. & P., 56 S.W.2d 97; Spoeneman v. Uhri, 60 S.W.2d 9; Cole v. Frisco, 61 S.W.2d 344; Johnson v. C. E. & I. Ry. Co., 64 S.W.2d 674; Carle v. Akin, 87 S.W.2d 406; Bennette v. Hader, 87 S.W.2d 413; Tunget v. Cook, 94 S.W.2d 921; State ex rel. v. Hostetter, 101 S.W.2d 50; Perkins v. Term. Railroad Assn., 102 S.W.2d 915; Schneider v. Terminal Railroad, 107 S.W.2d 787; Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 54; Buelher v. Festus, 119 S.W.2d 961. (b) The last part of plaintiff's Instruction 1 did not conflict with defendant's Instruction G and could not be construed as authorizing a verdict if the jury believed plaintiff's negligence was the sole cause of her injury. Phillips v. Henson, 30 S.W.2d 1065; Pence v. K. C. Laundry Serv. Co., 59 S.W.2d 633; King v. K. C. Pub. Serv. Co., 91 S.W.2d 89; State ex rel. v. Hostetter, 101 S.W.2d 50; Smithers v. Barker, 111 S.W.2d 47; Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 54. (c) The instruction did not refer to or permit the jury to consider defendant's primary negligence in running a red traffic light in determining his negligence under the humanitarian doctrine. King v. K. C. Pub. Serv. Co., 91 S.W.2d 89. (3) The verdict was not the result of passion and prejudice but was clearly based on the terrible permanent injuries and disfigurements plaintiff suffered and is not excessive. Snyder v. Wagner Mfg. Co., 223 S.W. 911; State ex rel. v. Trimble, 237 S.W. 1021; Skinner v. Davis, 271 S.W. 992; State ex rel. v. Caldwell, 276 S.W. 631; Downing v. Loose Wiles Biscuit Co., 8 S.W.2d 884; Grindstaff v. Goldberg, etc., Co., 40 S.W.2d 702; Dickson v. Maddox, 48 S.W.2d 873; Christopher v. Railroad Co., 55 S.W.2d 449; Pence v. Laundry Service Co., 59 S.W.2d 633; Howard v. M. & O. Ry. Co., 73 S.W.2d 272; Tate v. Western Union, 96 S.W.2d 364; Hartkopf v. Elliott, 99 S.W.2d 25.

Hyde, C. Bradley, C., concurs; Dalton, C., not sitting.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff had a verdict for $ 25,000. The trial court required a remittitur of $ 10,000, which was made, and final judgment was entered for $ 15,000. Defendant has appealed from this judgment.

Plaintiff makes the contention "that defendant is in the same position on this record as if none of the points raised were mentioned in a motion for new trial." The basis of this claim is that, although defendant filed a timely motion for new trial, this went to the first judgment entered for $ 25,000, and that, when, after remittitur, a new judgment was entered for $ 15,000, no motion was thereafter filed. Plaintiff says "the motion for new trial filed March 2, 1936, was directed to 'the verdict and judgment' then existing, and could not have been directed to the final judgment entered some four months afterwards." The same point is made as to motion in arrest of judgment. This is a misconception of the functions of such motion. A motion for new trial is a common law motion to prevent judgment, so it is directed only to the verdict and not to any judgment. [State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916, l. c. 920.] Its primary purpose is to prevent the entry of a final judgment, on the verdict, which it would accomplish if sustained. The usual practice in this State is to immediately enter a judgment on a verdict. However, such a judgment remains interlocutory and does not become final until after the time for filing motions to prevent entry of judgment has expired (Sec. 1005, R. S. 1929) without such motions being filed, or, if filed, until they are determined. [Cox v. Schaab Stove & Furniture Co., 332 Mo. 492, 58 S.W.2d 700; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899.] The secondary function of a motion for new trial is to preserve matters of exception for appellate review, which purpose is accomplished, as to all such matters mentioned therein, when the trial court overrules it, and enters final judgment, or makes the judgment final if already entered. [Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297.] Only one motion for a new trial is necessary to accomplish either purpose. In fact, a second motion, filed more than four days after verdict, amounts only to a suggestion and would not authorize any court to do anything that it could not do without it. [State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; State ex rel. Union Electric Light & Power Co. v. Sevier, 339 Mo. 732, 98 S.W.2d 980; City of St. Louis v. Senter Comm. Co., 340 Mo. 633, 102 S.W.2d 103.] There was no final judgment in this case (from which an appeal could be taken) except the one entered after remittitur. This Court en Banc in St. Louis v. Senter Commission Co., supra, finally disposed of the idea that a motion in arrest could serve any function in the preservation of any matter for appellate review.

Plaintiff's case was submitted solely upon negligence under the humanitarian rule. Defendant contends that plaintiff did not make a jury case, and assigns as error the overruling of his demurrer to the evidence. Therefore, the facts hereinafter stated are those which the evidence tended to show when viewed most favorably to plaintiff.

Plaintiff was injured in an automobile collision at the junction of Valentine Road with Broadway, in Kansas City, on May 19 1935, between 7:30 and 8:00 P. M. The headlights of plaintiff's car were on at the time. There had been a drizzling rain in the afternoon but the streets were not wet at that time. Valentine Road ran west from Broadway but did not continue east beyond Broadway. There was a filling station on the east side of Broadway, facing this junction, located where Valentine Road would have been built if it had been extended east beyond Broadway. There were two street car tracks in...