Nevens v. Solomon and Finn

• Decision Date: 07 May 1940
• Docket Number: No. 25313.,25313.
• Citation: 139 S.W.2d 1109
• Parties: NATALIE NEVENS, RESPONDENT v. JACK SOLOMON AND SAM FINN, DEFENDANTS; JACK SOLOMON, APPELLANT.
• Court: Missouri Court of Appeals

139 S.W.2d 1109

NATALIE NEVENS, RESPONDENT v. JACK SOLOMON AND SAM FINN, DEFENDANTS; JACK SOLOMON, APPELLANT.

No. 25313.

St. Louis Court of Appeals, Missouri.

Opinion filed May 7, 1940.

Writ of Certiorari granted July 2, 1940.

Writ of Certiorari quashed March 13, 1941.

Relator's Motion for Rehearing Overruled by Supreme Court April 18, 1941.

Appeal from Circuit Court of City of St. Louis. — Hon, Thomas, J. Rowe, Judge.

REVERSED AND REMANDED.

Alvin A. Wolff for respondent.

(1) The court made a proper ruling in directing a verdict for defendant Finn. Bach v. Ludwig (Mo. App.), 109 S.W. (2d) 724; Cochran v. Jefferson County Lumber Co. (Mo. App.), 132 S.W. (2d) 33; Quinn v. Met. St. Ry. Co. (Mo.), 118 S.W. 46; State v. Ellison (Mo.), 176 S.W. 11, 13; Brickell v. Fleming (Mo.), 281 S.W. 951; Ransom v. Union Depot Co. (Mo. App.), 126 S.W. 785. (2) Instruction No. 4 given for the defendant Solomon was erroneous because it was not based on the evidence. Smithers v. Barker (Mo.), 111 S.W. (2d) 47; McGrath v. Meyers (Mo.), 107 S.W. (2d) 792; Felts v. Spesia (Mo. App.), 61 S.W. (2d) 402. (3) Instruction No. 4 given for the defendant Solomon was erroneous because it was based on an alleged act of negligence not pleaded by any party. Watts v. Moussette (Mo.), 85 S.W. (2d) 487; Abbott v. Kansas City, St. J. & C.B.R. Co. (Mo.), 83 Mo. 271; Beave v. Transit Co. (Mo.), 111 S.W. 52; Degonia v. Railroad (Mo.), 123 S.W. 807; State v. Ellison (Mo.), 176 S.W. 11, 13; Rosenzweig v. Wells (Mo.), 273 S.W. 1071, 1073; White v. Handy (Mo. App.), 245 S.W. 613; Clark v. Wells (Mo. App.), 44 S.W. (2d) 863; Cummings v. Holly (Mo. App.), 60 S.W. (2d) 52, 58. (4) The instruction directing a verdict for defendant Finn is not in conflict with instruction No. 4 given for appellant. Harbaugh v. Ford Roofing Products Co. (Mo.), 281 S.W. 686; McCamley v. Union Electric Light, etc. (Mo. App.), 85 S.W. (2d) 200. (5) Defendant Solomon was in no way prejudiced by the peremptory instruction directing a verdict for defendant Finn, and it was not error for the court to give said peremptory instruction. One defendant will not be heard to complain of error allegedly committed in favor of a codefendant. Gabelman v. Bolt (Mo.), 80 S.W. (2d) 171; McCamley v. Union Electric Light, etc. (Mo. App.), 85 S.W. (2d) 200; Arnst v. Estes (Sp. Jud. Ct. Maine, 1939), 8 Atl. (2d) 201; Beave v. St. Louis Transit Co. (Mo.), 111 S.W. 52; Capitol Traction Co. v. Vawter (1912), 37 App. Ca. (Dist. Col.), 29; Schachtrup v. Hensel, 14 N.E. (2d) 897; Teche Lines, Inc., v. Pope (Miss.), 166 So. 539; Rose v. Squires (N.J.), 166 So. 539; Cohen v. Silverman (Minn.), 190 N.W. 795; Brickell v. Fleming (Mo.), 281 S.W. 951. (6) The verdict is not excessive. Corbett v. Terminal R. Ass'n (Mo.), 82 S.W. (2d) 97; Keehn v. D.R.F. Realty and Investment Co. (Mo.), 43 S.W. (2d) 416; Silsby v. Hinchey (Mo. App.), 107 S.W. (2d) 812.

Moser, Marsalek & Dearing for appellant.

(1) Gabelman v. Bolt, 336 Mo. 539, 80 S.W. (2d) 171. (2) The instruction directing a verdict for defendant Finn is wholly in conflict with and contradicts instruction No. 4 given for appellant. Its effect was to nullify appellant's defense. Irreconcilable and conflicting instructions are reversibly erroneous. State ex rel. v. Ellison, 270 Mo. 645, 656; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587, 612; Seithel v. St. Louis Dairy Co. (Mo.), 300 S.W. 280; Kuhlman v. Water, L. & T. Co., 307 Mo. 607, 637; Landon v. Un. Rys. Co. (Mo.), 237 S.W. 497; Frank v. Railway Co., 57 Mo. App. 181, 186; Redpath v. Lawrence et al., 42 Mo. App. 112.

HUGHES, P.J.

This is an action for damages from injuries sustained by plaintiff on July 7, 1936, when she was riding in an automobile operated by Jack Solomon, appellant, which collided with an automobile operated by Sam Finn as a service car. The action was begun against Jack Solomon, Great Eastern Oil Company, United Service Car Company, Sam Finn and Goldy Finn, but went to trial against Jack Solomon and Sam Finn, having been dismissed as to the other defendants.

According to the evidence of plaintiff and Solomon, as the automobile in which they were riding was traveling eastwardly on Lindell Boulevard and approaching Lake Avenue, in the City of St. Louis, the service car operated by Finn passed it on the left and then suddenly turned to the right and cut in front of Solomon's automobile, Solomon's automobile was moving between 25 and 30 miles an hour and about the middle of the south half of Lindell Boulevard when it was passed by Finn's service car, which at that time was being driven at a speed of between 35 and 40 miles an hour. The evidence of plaintiff and Solomon further was to the effect that after Finn's car passed Solomon's car it turned sharply to the right and was brought to an abrupt stop at the curb; that when it stopped it was not parallel with the south curb of Lindell Boulevard, but was standing at an angle the rear of the service car being farther from the curb than its front. No warning was given by Finn of his intention to stop. Solomon testified that in suddenly turning in front of him, Finn's automobile missed him by just a few feet and as soon as he saw the service car in the act of stopping he immediately applied his brakes but before he could bring his automobile to a stop the right front end of it struck the left rear corner of the service car. Plaintiff's testimony was to the effect that after the service car cut in front of the Solomon automobile and when it came to a sudden stop, Solomon was trying to wrap a bathing suit, which was lying on the front seat, with one hand, and from her testimony it could be inferred that Solomon, because his attention was fixed on the bathing suit, did not seasonably notice the sudden stop of the service car. Finn's testimony was to the effect that he had not passed the Solomon automobile and that he stopped at the place of the collision to discharge a passenger and in so driving and stopping he did not cut in front of any automobile or do anything else unusual.

At the close of all the evidence instructions in the nature of demurrers were offered by both Solomon and Finn; the one offered by Solomon was refused and the one offered by Finn was given. The jury returned a verdict in favor of plaintiff for $7500 against Solomon, and in accordance with the court's peremptory instruction, the verdict was in favor of Finn.

In the collision plaintiff was thrown forward against the windshield and other parts of the automobile and was injured.

The peremptory instruction offered by Finn at the close of all the evidence, and given by the court, and read to the jury, is as follows:

"At the close of the whole case the court instructs the jury that under the law and the evidence you must find for the defendant, Sam Finn, and against the plaintiff, Natalie Nevins."

Appellant Solomon's contention is that this instruction is conflicting and irreconcilable with Instruction Number 4 given by the court at his request, and was prejudicial to him. Said Instruction Number 4 is what has been termed a "sole cause" instruction, and is to the effect, that if the jury believe that Finn turned his automobile into the path of the automobile of defendant Solomon, and stopped the same when the automobile of defendant Solomon was so close that a collision was likely to occur and that such act was negligent and was the sole cause of the collision, and that Solomon was not guilty of any negligence causing or contributing to cause the collision, that the verdict must be in favor of defendant Solomon.

Other facts necessary to a decision will be referred to in the course of the opinion.

The case as presented is one which might properly be termed a triangular dispute among the parties in that there is little or no evidence to defeat plaintiff's cause of action, each defendant seeking only to exonerate himself from blame, and thereby to cast the whole blame on his codefendant. And the determination of the appeal hinges entirely about Finn's peremptory instruction and Solomon's sole cause instruction. When these two instructions are read and considered together, as all exponents of the law agree they must be, that they are inconsistent and contradictory is beyond question. We have the anomalous situation of the court telling the jury, in effect, that if the collision was solely caused by Finn's negligence they must find in favor of Solomon, but that Finn was not negligent. Therefore, one of two conclusions is inescapable either Finn was not entitled to his peremptory instruction or Solomon was not entitled to his sole cause instruction, the one is diametrically opposed to the other. Was Finn entitled to the peremptory instruction?

The testimony of both plaintiff and Solomon was to the effect that Finn's car passed Solomon's car on the left and then suddenly turned to the right and cut in front of Solomon's automobile and was then, according to Solomon, only 8 feet ahead of his automobile, and then according to both plaintiff and Solomon, Finn's car turned sharply to the right and was, without signal or warning, brought to an abrupt stop at the curb with the rear being further from the curb than the front; and Solomon says that as soon as he saw the service car in the act of stopping he immediately applied the brakes to his automobile and attempted to swerve his automobile and thus avoid a collision but was unable to do so. Although this testimony was contradicted by Finn's testimony, it was clearly a question for the jury. It is the function of the court to pass on the law and of the jury to pass on the facts. The court can only allow an instruction in the nature of a demurrer to the evidence when the proof is so lacking in probative force or value that it may be said as a matter of law that there is no substantial competent evidence to sustain plaintiff's case. The evidence as a whole must be viewed in a light most favorable to the plaintiff and the...