Mitchell v. Miner, 57819

• Decision Date: 06 November 1990
• Docket Number: No. 57819,57819
• Citation: Mitchell v. Miner, 804 S.W.2d 771 (Mo. App. 1990)
• Parties: Georgia MITCHELL, Plaintiff-Appellant, v. L.C. MINER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 771

804 S.W.2d 771

Georgia MITCHELL, Plaintiff-Appellant, v. L.C. MINER, Defendant-Respondent.

No. 57819.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 6, 1990.

Dunham, Boman and Leskera, Edward Adelman, Clayton, for plaintiff-appellant.

Kortenhof & Ely, John D. Warner, Jr., St. Louis, for defendant-respondent.

KAROHL, Judge.

Plaintiff, Georgia Mitchell, appeals after verdict and judgment in favor of defendant, L.C. Miner, on plaintiff's claim for personal injury and property damage and in favor of Miner on his counterclaim for property damage. These claims were made after a collision involving Mitchell's automobile, Miner's pick-up truck and an automobile of Karen F. Cohen which was stopped at an intersection. By agreement of the parties a third claim brought by Karen F. Cohen against Mitchell and Miner resulted in a judgment for $1000 for Cohen against Mitchell. The parties stipulated before the trial between plaintiff Mitchell and defendant Miner that judgment would be entered for $1000 and costs "in the same percentages as the jury finds in the companion case of Mitchell v. Miner." The jury found plaintiff Mitchell 100% at fault and defendant Miner without fault. Plaintiff Mitchell appeals only the judgments entered in favor of Miner on her claims and his counterclaim.

Mitchell contends she in entitled to a new trial because: (1) the trial court abused its discretion in not allowing her to introduce a photograph of a rotating, school-type, stop sign in order to rebut Miner's evidence that Mitchell's passenger turned the sign after the collision; and (2) defendant Miner failed to offer substantial evidence of the amount of damages sustained by his truck.

The sparse legal file in this case requires some speculation on the part of the court. The petition alleges negligence of defendant Miner by excessive speed, failure to keep a look out, failure to yield the right-of-way, failure to warn, violation of a stop sign, driving under the influence of alcohol, and a humanitarian claim. We do not have a copy of defendant Miner's answer and counterclaim. We do not have a copy of plaintiff Cohen's petition or the answers filed by defendants Mitchell and Miner to the petition.

We have the verdict directing instructions which indicate Mitchell asked the jury to find only that defendant Miner failed to keep a careful look out or failed to yield the right-of-way, or both. On the counterclaim defendant Miner submitted only the same two claimed acts of negligence of plaintiff Mitchell. Neither submitted violation of a stop sign against the other. Although the record is incomplete, it discloses no motion for new trial or appeal by plaintiff Mitchell in reference to the judgment in the "companion" case of plaintiff Cohen against Mitchell. The trial court cause numbers of plaintiff Mitchell's suit and plaintiff Cohen's suit are the same. However, we are required to speculate a consolidation was ordered.

The motor vehicles collided in the intersection of Vandeventer and Sullivan in the City of St. Louis at approximately 1:00 p.m. on January 2, 1986. Just before the collision, plaintiff Cohen was stopped southbound on Vandeventer at a stop sign. Defendant Miner stopped at a stop sign controlling westbound traffic on Sullivan. As defendant Miner entered the intersection, plaintiff Mitchell, northbound on Vandeventer, struck defendant Miner's truck on the driver's side. Miner's truck then hit the front of plaintiff Cohen's automobile.

At trial Cohen and Miner testified Mitchell violated a stop sign controlling northbound traffic on Vandeventer. Mitchell testified the school stop sign was turned so as not to require her to stop at the intersection with Sullivan. The jury was not asked to decide, and did not decide, the stop sign dispute. It found Mitchell either failed to keep a careful look out or failed to yield the right-of-way, or both. It also found defendant Miner did not fail to keep a careful look out or yield the right-of-way.

The verdict and judgment entered in favor of defendant Miner on plaintiff Mitchell's claim and in favor of defendant Miner on his counterclaim was entered on November 8, 1989. Plaintiff Mitchell's post trial motion for judgment notwithstanding the verdict or for a new trial was filed on November 27, 1989. It was due no later than Friday, November 24, 1989. Rule 78.04. The notice of appeal filed by plaintiff Mitchell asserts her post trial motion was filed on November 27, 1989. We do not have the circuit court minutes of proceedings or a stamped copy of the filed motion to confirm the filing date. However, from the record presented by Mitchell, as appellant...