Murphy v. Deksnis, 34022
| Decision Date | 25 January 1972 |
| Docket Number | No. 34022,34022 |
| Citation | 476 S.W.2d 150 |
| Parties | Stanley V. MURPHY, Plaintiff-Appellant, v. Anthony DEKSNIS and William Watson, Defendants-Respondents. . Louis District |
| Court | Missouri Court of Appeals |
Melvin D. Benitz, St. Charles, for plaintiff-appellant.
Albrecht & Homire, Heneghan, Roberts & Godfrey, Carl R. Gaertner, St. Louis, for defendants-respondents.
This is an appeal by plaintiff from a judgment in favor of defendants Anthony Deksnis and William Watson. 1 The action arose out of an automobile collision which occurred at 18th and Olive Streets in the City of St. Louis between an automobile being driven west on Olive Street by defendant Watson in which plaintiff was a passenger and an automobile operated south on 18th Street by defendant Deksnis. The cause was tried to a jury. Plaintiff submitted his case against Deksnis on the sole charge that said defendant was negligent in violating an electric signal governing traffic at the intersection. His sole submission against Watson was that the latter failed to keep a careful lookout. The jury returned a verdict in favor of both defendants.
Plaintiff briefs only one point, viz., that the collision having taken place, plaintiff having been permanently injured and being free from fault, 2 the verdict of the jury is inconsistent with the law because one or both of the defendants had to be negligent or the collision would not have occurred.
We are presented at the outset with separate motions to dismiss filed by defendants on the ground that plaintiff has failed to comply with Supreme Court Rule 83.05 (Now 84.04) (a)(3) and (e), V.A.M.R. In substance subsections (a) (3) and (e) of Rule 83.05 require an appellant's brief to contain the points relied on showing what actions or rulings of the trial court are sought to be reviewed and 'wherein and why they are claimed to be erroneous * * *.' Subsection (e) provides in part that '* * * Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.'
The purpose of Rule 83.05 is to facilitate the work of the court and the litigants so that the issues raised on appeal may be clearly presented; the appellate court may be given a concise summary of what the appellant claims the trial court did wrong and why he claims it was wrong; and to enable respondent's counsel to answer appellant's contentions. DeCharia v. Fuhrmeister, Mo.App., 440 S.W.2d 182, 184; Yates v. White River Valley Electric Co-Operative, Mo.App., 414 S.W.2d 808, 811; Pauling v. Rountree, Mo.App., 412 S.W.2d 545, 549.
We believe appellant's brief sufficiently fulfills the purpose of the Rule. Under the heading 'Points Relied On' appellant complains that the trial court erred in refusing to grant him a new trial for the reason that under the evidence and the law one or both of the defendants had to be negligent or the collision could not have occurred; that he suffered without question permanent injuries and was not charged with contributory negligence. Appellant's position, under the facts and circumstances of this case may, as we shall presently hold, be without merit, but it is sufficiently stated under his 'Points Relied On' to apprise this court and respondents of the ruling challenged and 'wherein and why.' Respondents' motions to dismiss are denied.
There is no merit to plaintiff's claimed error. He chose to submit to the jury his cause of action against defendant Deksnis on the sole allegation that Deksnis negligently violated the traffic signal. The evidence on that issue was in direct conflict. Plaintiff, as a passenger in defendant Watson's automobile, testified unequivocally that before and after entering the intersection the light was green for Watson. Deksnis and one of his passengers were equally positive that the light was green for Deksnis. Deksnis by his converse instruction put in issue only the question of the violation of the traffic signal. This issue the jury resolved in favor of Deksnis. The evidence on the issue was for the jury and is sufficient, if believed, to support the verdict. The law is well-settled that the weight to be given the evidence is for the jury and the trial court to resolve and will not be reviewed on appeal. Harris v. Quality Dairy Company, Mo.App., 423 S.W.2d 8, 13.
Plaintiff chose to submit his cause of action against Watson on the sole charge that he negligently failed to keep a careful lookout. He never charged Watson with violating the traffic signal and in fact contends he did not do so. Plaintiff testified he did not see defendant Deksnis' automobile prior to Watson entering the intersection and first saw it 'about a second' or a 'couple of seconds' before the collision. At the time plaintiff saw the Deksnis automobile Watson was trying to swerve and put on his brakes and 'did not have time...
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Galemore Motor Co., Inc. v. State Farm Mut. Auto. Ins. Co.
...ruling the submissibility of the case against State Farm. Gibson v. Newhouse, 402 S.W.2d 324, 326--327(2) (Mo.1966); Murphy v. Deksnis, 476 S.W.2d 150, 152(5) (Mo.App.1972); Lathrop v. Rippee, 432 S.W.2d 227, 229(1) As disclosed and elucidated in the argument section of its brief, State Far......
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...by plaintiffs. Theories which might have been pleaded and submitted but which were not, are deemed abandoned. Murphy v. Deksnis, 476 S.W.2d 150, 153(6) (Mo.App.1972). Plaintiffs are to be judged on the issues they plead and submit (Green v. Sutton, 452 S.W.2d 200, 206(2) (Mo.1970)) and in t......
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...court did wrong and why he claims it was wrong, so that respondent's counsel may answer appellant's contentions. Murphy v. Deksnis, 476 S.W.2d 150, 151(1) (Mo.App.1972). As stated, this Point Relied On utterly fails to fulfill the purpose of the Rule; it does not advise either this court or......
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