Morris v. Patterson, s. KCD

• Decision Date: 04 April 1977
• Docket Number: Nos. KCD,s. KCD
• Citation: Morris v. Patterson, 549 S.W.2d 613 (Mo. App. 1977)
• Parties: Lewis E. MORRIS, Respondent, v. Robert B. PATTERSON and Equity Mutual Insurance Company, Appellants. 28036, KCD 28039.
• Court: Missouri Court of Appeals

Page 613

549 S.W.2d 613

Lewis E. MORRIS, Respondent, v. Robert B. PATTERSON and Equity Mutual Insurance Company, Appellants.

Nos. KCD 28036, KCD 28039.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

L. Stanley Braton, Warrensburg, Kelly Pool, Jefferson City, for appellants.

John O. Bond, Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

Action for damages arising out of automobile collision. Lewis E. Morris, the driver of one auto, sued Robert B. Patterson, alleging that he was the driver of the vehicle which rear-ended Morris's auto. Morris joined a claim against Equity Mutual Insurance Company, his insurer, on the basis of the uninsured motorist coverage of the policy issued by Equity to Morris. Trial to a jury resulted in a verdict in favor of plaintiff against both defendants and an award of damages of $7,500.00. Equity's motion for new trial was sustained. Patterson's post-trial motion was overruled. He appealed. Equity also appealed. The appeals have been consolidated.

The accident occurred January 14, 1972, when Morris was travelling west on U.S. Route 50 near Knob Noster, Missouri. His vehicle was struck in the rear by another auto travelling in the same direction.

Plaintiff's petition was in three counts. (Count II, a claim on behalf of plaintiff's wife, was abandoned.) Count I sought damages against Patterson. Count III sought recovery against Equity on the basis of its uninsured motorist coverage extended to plaintiff.

The verdict of the jury was in favor of plaintiff and against both defendants. The verdict fixed plaintiff's damages at $7,500.00. The trial court sustained Equity's motion for new trial on the grounds that letters offered in evidence by plaintiff to prove that Patterson was an uninsured motorist were improperly admitted in evidence because they violated the hearsay rule.

In his appeal, Patterson argues that his motion for directed verdict should have been sustained and, alternatively, that his motion for new trial should have been sustained. Equity joins in Patterson's contention that he was entitled to a directed verdict and also alleges error in the overruling of Patterson's motion for new trial on one of the grounds advanced by Patterson. Equity also contends that its motion for directed verdict and motion for judgment in accordance therewith should have been sustained.

A threshold question is whether or not the judgment appealed from is final and appealable.

" 'The right of appeal shall be as provided by law' (Rule 81.01, V.A.M.R.), i. e., the right to appeal is purely statutory. Steffan v. Steffan, 390 S.W.2d 587, 590(1) (Mo.App. 1965). To be ripe for appeal, a judgment must finally dispose of all issues raised by the pleadings (Coonis v. Rogers, 413 S.W.2d 310, 313(1) (Mo.App. 1967)), and it is the duty of an appellate court, sua sponte if not otherwise, to determine if a final appealable judgment has been rendered before it undertakes to consider the matter on its merits. Anderson v. Metcalf, 300 S.W.2d 377, 378(1) (Mo. 1957)." Starnes v. Aetna Casualty and Surety Company, 503 S.W.2d 129, 130-131(1) (Mo.App. 1973).

Ordinarily, where plaintiff makes a claim against two defendants, and a judgment rendered for or against one defendant and a new trial has been awarded the second defendant, there is no final appealable judgment because all issues as to all parties have not been disposed of. Swindler v. Gross, 395 S.W.2d 109 (Mo. 1965).

In its notice of appeal, Equity states:

"The basis for Equity Mutual Insurance Company's appeal from the judgment entered against defendant Patterson is that it is aggrieved by that judgment in that it is bound by that judgment's determination of the issues of defendant Patterson's liability, and plaintiff's damages as held by the following cases: State ex rel. State Farm Mutual Insurance Company v. Craig, 364 S.W.2d 343 (Spr.App.) 1963; Wells v. Hartford Accident and Indemnity Company, 459 S.W.2d 253 (Mo.Sup.Banc) 1970; and Beard v. Jackson, 502 S.W.2d 416 (St.L.App.) 1973.

"As a proper party appellant to this appeal and for the reasons stated above, and on the theory set forth in the cases such as Gray v. Coplar (Koplar)-Barron Realty Company, 497 S.W.2d 185 (St.L.App.) 1973, Defendant Equity Mutual Insurance Company submits that it should also be heard on the question of the correctness of the trial court's ruling on its Motion for Judgment in...