Myers v. Karchmer

• Decision Date: 12 May 1958
• Docket Number: No. 46271,No. 1,46271,1
• Parties: Ross E. MYERS, an incompetent person, by Gene Myers, the guardian of his person and estate, Respondent, v. Nathan KARCHMER, William H. Karchmer and Jerome A. Caplan, partners doing business under the firm name of Karchmer Company and Lela M. Daniel, Administratrix of the Estate of Delbert L. Daniel, Appellants
• Court: Missouri Supreme Court

Page 697

313 S.W.2d 697

Ross E. MYERS, an incompetent person, by Gene Myers, the guardian of his person and estate, Respondent, v. Nathan KARCHMER, William H. Karchmer and Jerome A. Caplan,

partners doing business under the firm name of Karchmer

Company and Lela M. Daniel, Administratrix of the Estate of

Delbert L. Daniel, Appellants.

No. 46271.

Supreme Court of Missouri, Division No. 1.

May 12, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 9, 1958.

Allen, Woolsey & Fisher, Clarence O. Woolsey, Joe N. Brown, James H. Keet, Springfield, for appellants.

Frank C. Mann, Glenn A. Burkart, Mann, Walter, Powell & Burkart, Springfield for respondent.

DALTON, Judge.

Action for damages for personal injuries and property damage sustained by plaintiff when defendants' truck collided with plaintiff's truck at the intersection of Highways 160 and M, approximately four miles south of Springfield, Missouri. Plaintiff sought to recover on the primary negligence of defendants' truck driver in failing to stop at a stop sign before entering upon Highway 160. Defendants defended on the theory that the operator of defendants' truck at the time and place in question was not acting within the scope of his employment; and that plaintiff was guilty of contributory negligence, as hereinafter stated. Verdict and judgment were for plaintiff for $150,000 for personal injuries and $1,795 for property damages. On motion for a new trial, a remittitur of $50,000 was conditionally ordered and made and judgment was entered for plaintiff for $101,795. Defendants have appealed.

Appellants assign error (1) on the admission in evidence of a deposition; (2) on the overruling of defendants' motion for a directed verdict at the close of all the evidence; (3) on the giving of instructions 2 and 3; (4) on the alleged misconduct of a juror; and (5) on the approval of the verdict. The facts will be stated with reference to the specific assignments.

The first assignment is that the court erred in admitting the deposition of Linza Bilyeu in evidence, 'because the deposition itself does not show Linza Bilyeu to have been a resident of a county other than Greene County, the county in which the case was tried, and because plaintiff introduced no evidence as a condition precedent to the deposition's admission to establish the above fact as a basis for the use of the deposition.'

The sole objection interposed, when the deposition of Linza Bilyeu was offered and admitted in evidence, was that 'it does not show that he is a non-resident of Greene County.' Defendants insisted that the deposition was inadmissible under Section 492.400 RSMo 1949, V.A.M.S., which states the circumstances under which a deposition 'may be read and used as evidence in the cause.' The objection was overruled and the deposition admitted. Section 492.400, supra, provides: 'The facts which would authorize the reading of the deposition may be established by the testimony of the deposing witness * * *.' One of the grounds for use of the deposition is, '(4) If he reside in a county other than that in which the trial is held * * *.'

The testimony of the witness, as shown by the deposition, was to the effect that he resided with his father on a farm one mile north of Nixa, on Highway 160; that he was engaged in the trucking business, 'just wildcatting freight'; and that he was then home for two days during the December holidays. When asked 'in what county' his father's farm was located, he answered: 'A. Greene--or it is in Christian. Q. Christian County; your work keeps you away from home practically all the time? A. That's right.' (Italics ours).

Appellants insist 'there is no testimony by the witness that he is a resident of Christian County'; and further say that 'the plaintiff was required to introduce evidence in addition to any facts contained in the deposition to establish the fact that Linza Bilyeu was a resident of a county other than Greene County before his deposition could be admitted in evidence.' Appellants have cited some fifteen cases, but none of the cases cited support their position, if the evidence in the deposition is sufficient to meet the provision of the statute.

The deposition was taken on December 19, 1956, and it was offered in evidence on March 15, 1957. The fact testified to, to wit, residence in Christian County, was a fact somewhat of a continuing nature and not similar to testimony as to the existence of a present intention to leave the state at some future date, which intention may or may not have been carried into effect before the deposition was offered in evidence as in Gaul v. Wenger, 19 Mo. 541. And see Missouri Power & Light Co. v. City of Bucklin, 349 Mo. 789, 163 S.W.2d 561, 563(2, 3, 4). Whether the testimony was sufficient to show that the witness was a nonresident of Greene County rested largely within the discretion of the trial court. Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149, 155(3); Taylor v. Laderman, 349 Mo. 415, 161 S.W.2d 253, 257. No abuse of the court's discretion appears and his conclusion in supported by substantial evidence. See Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874, 880(4). Further, the record here shows that, subsequent to the admission of the deposition, additional evidence was offered showing that the farm on which the witness resided was located in Christian County, 2.5 miles south of the Greene County line. The error, if any, in admitting the deposition prior to such further showing was not prejudicial to defendants and no reversible error appears. Felker v. Breece, 226 Mo. 320, 126 S.W. 424, 426.

Appellants next contend that 'the court erred in overruling the defendants' motion for a directed verdict at the close of all the evidence because the plaintiff was guilty of contributory negligence as a matter of law because of his failure to keep a vigilant lookout * * * failure to stop, slacken his speed, swerve to the right or sound a warning signal * * * and because his operation of his vehicle * * * constituted a complete indifference to danger.' The record presented here fails to show that any of these grounds for sustaining the motion were ever presented to and ruled upon by the trial court. The motion as presented to the court at the close of all the evidence stated no grounds therefor (see Section 509.280 RSMo 1949, V.A.M.S.) and it does not appear from the transcript on file that the court was advised as to the particular grounds upon which such relief was sought, or that relief was sought on the grounds now stated.

Section 512.160(1) RSMo 1949, V.A.M.S., expressly states that 'apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted by the trial court, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.' Under Section 510.210 RSMo 1949, V.A.M.S., 'formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take * * *and his grounds therefor except it shall not be necessary to state grounds for objections for instructions; * * *.' (Italics ours.) And see Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, 366; Rosebrough v. Montgomery Ward & Co., Mo.App., 215 S.W.2d 295, 298; Palmer v. Security Ins. Co., Mo.App., 263 S.W.2d 210, 213(3); 42 V.A.M.S. Supreme Court Rule 3.23.

While defendants' motion for a new trial assigns error on the court's action in overruling defendant's motion for a directed verdict at the close of all the evidence, there is nothing in the motion for a new trial to indicate that the trial court was ever advised that such relief was sought on the ground that plaintiff was guilty of contributory negligence as a matter of law. While this court appears to have taken the position that the sufficiency of the evidence to make a submissible case is a question open for determination upon every appeal, if failure to rule that issue will result in manifest injustice or a miscarriage of justice, no request has been made for the consideration of this issue under Supreme Court Rule 3.27. See Oganaso v. Mellow, supra; Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77(11); Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672, 674; Supreme Court Rule 1.28. Where a case is tried to the court without the aid of a jury, Section 510.310(4) RSMo 1949, V.A.M.S. (Section 114, Laws 1943, p. 353, referred to in Supreme Court Rule 3.23) expressly provides that the question of the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the question was raised in the trial court. Apparently, appellants have intended to rely on this assignment only in the event that their first assignment is sustained and the deposition of Linza Bilyeu is excluded from evidence, since appellants say 'the transcript is barren of any testimony indicating that the plaintiff saw the defendants' vehicle in this case if the deposition of the witness Bilyeu is excluded as we believe the law requires this court to do.' (Italics ours). Appellants also insist that 'the plaintiff * * * was guilty of contributory negligence as a matter of law because he did, under the evidence of the witness Aven, operate his stock truck with complete indifference to the danger which was obvious at the intersection where this accident occurred.' (Italics ours.) Appellants admit that 'the evidence given by the witness Bilyeu in his deposition was crucial to the defendants' theory of contributory negligence as a defense to the plaintiff's cause of action.' Appellants further say: 'Only the witness Bilyeu testified that the plaintiff * * * had applied his...