Mott v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 28 January 1935
• Docket Number: No. 18061.,18061.
• Citation: 79 S.W.2d 1057
• Court: Missouri Court of Appeals
• Parties: MOTT et al. v. CHICAGO, R. I. & P. RY. CO.

79 S.W.2d 1057

MOTT et al. v. CHICAGO, R. I. & P. RY. CO.

No. 18061.

Kansas City Court of Appeals. Missouri.

January 28, 1935.

Rehearing Denied February 18, 1935.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Suit by P. J. Mott and Grace Mott against the Chicago Rock Island and Pacific Railway Company. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded for new trial.

J. A. Silvers, of Butler, for appellants.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, Hale Houts, and I. M. Lee, all of Kansas City, for respondent.

TRIMBLE, Judge.

Plaintiffs, the parents of Lloyd Mott, a minor 19 years of age, single, never having been married and hence childless, sued as next of kin for the death of their said son, which was caused by a collision, on a grade crossing in the state of Kansas, between an automobile driven by the deceased, and a motor-drawn train belonging to defendant.

The answer, in addition to a general denial, contained a plea of contributory negligence on the part of Lloyd Mott. Plaintiffs' reply denied this.

Thereafter, on November 19, 1931, being a part of the September, 1931, term of court, a trial was had before a jury, at the close of which it returned a verdict for defendant. Judgment in accordance with the verdict was thereupon at once and prematurely entered; but as the motion for new trial was duly filed within four days from the returning of the verdict and at the same term, which motion was afterwards overruled and an appeal duly allowed to plaintiffs, we will pay no attention to the irregularity in prematurely entering the judgment. Moreover, while such irregularity is mentioned in appellants' briefs, yet it is not included in either appellants' "assignment of errors" or "points and authorities"; hence no ruling of the appellate court thereon is called for or required.

The bill of exceptions brought up by appellants, and appearing in their abstract, does not contain any of the evidence taken at the trial, but recites that "plaintiffs introduced testimony tending to prove all the allegations of their petition" and that "defendant introduced testimony tending to prove all the allegations of its answer."

Defendant railway company filed a "Respondent's Additional Abstract" in which it is stated that the bill of exceptions in appellants' abstract was presented to, and allowed by, the circuit court "on an ex parte appearance and application of the plaintiffs on January 3, 1934, at the January Term of that year, and the bill of exceptions embodied in appellants' abstract of the record is a complete and full copy of said bill of exceptions so allowed, and same is the only bill of exceptions obtained or allowed on behalf of plaintiffs and appellants." Said "Respondent's Additional Abstract" further states that at the said January term, 1934, defendant filed a motion to set aside the order approving appellants' said bill of exceptions; the motion to set aside stating that it was because:

"1. Said so-called bill of exceptions does not contain all or any part of the testimony introduced by the parties on the trial.

"2. The appellate court cannot properly pass upon the merits of said cause without having before it all of the testimony introduced by the parties on the trial.

"3. In said so-called bill of exceptions it is stated `thereupon, plaintiffs introduced evidence tending to prove all of the allegations of their petition filed in the above entitled cause', which said statement is contradictory to and directly in conflict with the statement made by the court at the time plaintiffs' motion for a new trial was by said Court overruled, the Court then and there stating in substance, as one of the grounds for overruling plaintiffs' said motion for a new trial, that under all the testimony introduced plaintiffs did not make out a case for the jury and that defendant's demurrers offered at the close of plaintiffs' testimony and again at the close of all the testimony should have been sustained.

"4. The so-called bill of exceptions does not comply with the statutes and does not comply with the rules relating thereto either with the Kansas City Court of Appeals or the Supreme Court of Missouri.

"5. The appellate court cannot properly pass upon the instructions, including the demurrers offered by the defendant at the close of plaintiff's testimony and again at the close of all the testimony without having before it all of the testimony introduced in the trial of said cause."

Said additional abstract also shows that on March 12, 1934, at the regular January term, 1934, said motion to set aside the order approving appellants' bill of exceptions was overruled and respondent's term bill of exceptions was signed, allowed, and filed.

Because of that which is hereinabove stated, respondent has filed in this court a motion to dismiss the appeal or affirm the judgment, basing it on the following grounds:

"The evidence in the case was not preserved by Bill of Exceptions on behalf of the appellants.

"Appellants' assignments of error appearing in appellants' brief pertain solely to the giving of instructions and appellants have not preserved in a Bill of Exceptions the evidence pertaining to any instructions given or refused.

"Appellants did not in their motion for new trial assign any of the errors which they assign in their brief.

"Appellants assign no error in respect to the record proper."

Said motion was, on March 12, 1934, a part of said January term, overruled, the defendant excepting, and a term bill of exceptions was duly signed, allowed, and filed.

So far as concerns the failure to set out the evidence, it is only necessary to say that merely because of the fact the bill of exceptions states only that testimony was introduced "tending to prove," etc., this furnishes no ground which will, under the circumstances of this case, authorize the dismissal of the appeal or affirmance of the judgment. Rule 8 of our court authorized the statement in the bill of exceptions, with reference to the evidence, as was made in the appellants' bill of exceptions herein, namely, that "plaintiffs introduced testimony tending to prove all the allegations of their petition" and that defendant introduced testimony tending to prove all the allegations of its answer. This is held sufficient in the cases of Good Roads Co. v. Kansas City Railways Co. (Mo. App.) 217 S. W. 858; Montgomery v. Clem (Mo. App.) 300 S. W. 1020. So far as concerns the ground of said motion to dismiss, contained in paragraph 3 above quoted, to the effect that the statement in said bill that "plaintiffs introduced evidence tending to prove all the allegations of their petition," "is contradictory of, directly contrary to, and in conflict with, the court's statements made at the time the plaintiffs' motion for new trial was overruled," that "plaintiffs did not make out a case for the jury," and that "defendant's demurrers * * * should have been sustained," there is no merit in this point for several good and sufficient reasons; first, these statements are not tantamount to saying the verdict was against the weight of the evidence, second, they do not, in reality and as a matter of law, contradict the statement in the bill of exceptions, and, third, said statements are not preserved in the record. There is nothing to show that the judge actually made the remarks. They only appear in the respondent's motion to dismiss, not in the bill of exceptions certifying to what the judge said, and, so far as the record shows, the trial judge may have known the charge made in the motion to dismiss was untrue, and considered this as, at least, one of the reasons for overruling the said motion to dismiss. The allegations in the motion do not prove themselves. Fourth, even if the judge really made them, they were merely remarks made in passing on said motion, and have no force to contradict statements made in the bill of exceptions and approved as a part of the record. Fifth, the alleged remarks made at one term cannot be established by a bill filed at a subsequent term. Besides, respondent is not complaining of the action of the trial court, nor did it take any appeal.

Whether appellants have properly preserved and brought any alleged errors to this court for review, is to be decided by considering the case on appeal, not by refusing to hear the appeal and dismissing it.

The mere fact that a point made in the motion for new trial is stated in general terms is no ground for dismissing the appeal, if the motion for new trial contains the alleged error against which the complaint is aimed. The only lack in a motion for new trial which will prevent an appellate court from considering a point raised, is the failure to include said point in the motion for new trial. In order to raise a point in a motion for new trial, it has not heretofore been deemed necessary to state it with the same specific definiteness and precision as is required in assigning it as an error in appellants' brief in the appellate court. This doubtless, for the reason that the circuit court, having tried the case, will know the point referred to in the motion for new trial, while the appellate court, never having tried the case and having only the printed record before it, will rightfully require a distinct and separately stated assignment, either in the "Assignment of Errors" or "Points and Authorities," to make the point readily discernible, and for this reason rule 17 requires this; so that respondent's motion to dismiss the appeal cannot be sustained on the ground that the motion for new trial is too general.

However, respondent contends that our rules 8, 9, and 10 and our decisions in the case of Good Roads Co. v. Kansas City Railways Co. (Mo. App.) 217 S. W. 858 and Montgomery v. Clem (Mo. App.) 300 S. W. 1020, in so far as they support said rules, are contrary to the statute and to...