Newdiger v. Kansas City

• Decision Date: 10 November 1937
• Citation: 114 S.W.2d 1047,342 Mo. 252
• Parties: Opal Newdiger v. Kansas City, Appellant, Kansas City Public Service Company, a Corporation, Defendant
• Court: Missouri Supreme Court

114 S.W.2d 1047

342 Mo. 252

Opal Newdiger v. Kansas City, Appellant, Kansas City Public Service Company, a Corporation, Defendant

Supreme Court of Missouri

November 10, 1937

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

George Kingsley, Francis L. Roach and Marcy K. Brown Jr., for Kansas City.

(1) The court erred in overruling appellant's motion in arrest of judgment because the verdict is void, incomplete, does not dispose of the parties or issues, and is insufficient to sustain the judgment. R. S. 1929, sec. 1077; Singleton v Exhibition Co., 172 Mo.App. 306; Spangler-Bowers v. Benton, 229 Mo.App. 927, 83 S.W.2d 170; Hughey v. Eyssell, 167 Mo.App. 556; Midwest Natl. Bank & Trust Co. v. Corn Co., 211 Mo.App. 419; Lindsey v. Nagel, 157 Mo.App. 138; Boudeau v. Myers, 54 S.W.2d 999; Dailey v. Columbia, 122 Mo.App. 24; Winkelman v. Maddox, 119 Mo.App. 662; Crow v. Crow, 124 Mo.App. 125; Proctor v. Garman, 203 Mo.App. 108. (2) The court erred in overruling appellant's request for a peremptory instruction in the nature of a demurrer at the close of plaintiff's case and at the close of all the evidence, because respondent was guilty of contributory negligence. Welch v. McGowan, 262 Mo. 719; Wheat v. St. Louis, 179 Mo. 580; Waldmann v. Construction Co., 289 Mo. 633; Sloan v. American Press, 37 S.W.2d 891; Foster v. Swope, 41 Mo.App. 147; Dempsey v. Horton, 84 S.W.2d 625. (3) The court erred in improperly excluding evidence and interfering with the cross-examination of witness O. M. Nichols in relation to the ownership, operation and maintenance of the manhole. R. S. 1929, sec. 7539; Ayers v. Railroad Co., 190 Mo. 236; Conway v. Street Ry. Co., 161 Mo.App. 86. (4) The court erred (a) in sustaining the demurrer to the evidence offered by defendant Kansas City Public Service Company at the close of plaintiff's evidence, and (b) erred in excluding and refusing to admit relative, competent and material evidence offered by the defendant Kansas City as against Kansas City Public Service Company. R. S. 1929, sec. 7539; Waltermeyer v. Kansas City, 71 Mo.App. 354; Hutchinson v. Mullins, 176 S.W. 1088; Kilroy v. St. Louis, 242 Mo. 84. (5) The court erred in permitting plaintiff's expert medical witnesses to answer improper hypothetical questions. Bennett v. Punton Sanitarium Assn., 213 Mo.App. 363, 249 S.W. 666; Root v. Ry. Co., 195 Mo. 348; Schultz v. Ry. Co., 4 S.W.2d 762; Russ v. Ry. Co., 112 Mo. 45; Benjamin v. Ry. Co., 50 Mo.App. 602. (6) The court erred in refusing to grant a new trial because (a) respondent committed willful perjury; (b) failure to grant a new trial for this ground is an abuse of discretion; (c) the court's ruling is unsupported by substantial evidence; and (d) the interest of justice requires a new trial. Scott v. Ry. Co., 168 Mo.App. 531; Ridge v. Johnson, 129 Mo.App. 541.

Charno & Drummond for respondent.

(1) The court did not err in overruling appellant's motion in arrest of judgment on the alleged ground that the verdict was void, incomplete, did not dispose of the parties or issues, and was insufficient to sustain the judgment. (a) In view of the record, the verdict of the jury disposed of all the parties and issues and was amply sufficient to sustain the court's judgment. Hollinghausen v. Ade, 289 Mo. 362, 233 S.W. 39; Stith v. Newberry Co., 79 S.W.2d 447; State ex rel. v. McElhinney, 100 S.W.2d 36. (b) If the verdict is subject to the objections now made, appellant cannot complain here because the error, if any, was invited by appellant. Price v. Town of Breckinridge, 92 Mo. 378, 5 S.W. 20; Hill v. Meyer Brothers Candy Co., 140 Mo. 433, 41 S.W. 909; Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S.W. 1166; Peters v. Fleming, 329 Mo. 870, 46 S.W.2d 581; Huppert v. Weisgerber, 25 Mo.App. 95; Schell v. Ransom Coal & Grain Co., 79 S.W.2d 543. (2) No reversible error was committed by the court in submitting the issue of contributory negligence of respondent to the jury, as this issue, under the evidence, was clearly one for the jury to determine. Crockett v. Mexico, 77 S.W.2d 464; Scanlon v. Kansas City, 19 S.W.2d 522; Stith v. Newberry Co., 79 S.W.2d 447; Merritt v. Kansas City, 46 S.W.2d 275; Shuff v. Kansas City, 257 S.W. 844; Bianchetti v. Luce, 2 S.W.2d 129; Charlton v. St. Louis-S. F. Ry. Co., 200 Mo. 413, 98 S.W. 529; Law v. St. Louis, 292 Mo. 384, 239 S.W. 124. (3) No reversible error was committed by the court in excluding the testimony of W. C. Connor. Parkville Milling Co. v. Massman, 83 S.W.2d 128. (4) The court did not commit reversible error in excluding Sections 23 and 41 of the Street Railway ordinance. Lindman v. Kansas City, 271 S.W. 516; Norton v. St. Louis, 11 S.W. 242; Sec. 7539, R. S. 1929. (5) No reversible error was committed by the trial court in excluding the evidence of O. M. Nichols concerning the ownership, operation and maintenance of the manhole. Authorities under Point 6. (6) The court did not commit reversible error in sustaining the demurrer to the evidence offered by the Kansas City Public Service Company, nor in excluding evidence offered by appellant against the Kansas City Public Service Company. Sec. 7539, R. S. 1929; Hutchinson v. Mullins, 176 S.W. 1083; Wiggins v. St. Louis, 135 Mo. 558, 37 S.W. 528.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is an action for personal injury. Plaintiff brought suit against Kansas City and Kansas City Public Service Company. At the close of plaintiff's case the court marked "given" what we may term a demurrer to the evidence, offered on the part of the Kansas City Public Service Company. Defendant, Kansas City, excepted to the giving of this peremptory direction to find for the service company. Plaintiff did not at any time dismiss or take a nonsuit as to the service company, but, when the peremptory direction was marked given, the service company withdrew from the trial. The peremptory direction to find for the service company was not submitted to the jury, but the cause proceeded and at its close was submitted to the jury on instructions given for plaintiff and defendant Kansas City. The jury returned this verdict: "We, the jury, find the issues for the plaintiff and do assess her damages at five thousand dollars ($ 5,000.00)."

Defendant, Kansas City, duly filed motion for new trial and motion in arrest, both of which were overruled, and appeal was taken to the Kansas City Court of Appeals, which court reversed the judgment and remanded the cause (Newdiger v. Kansas City et al., 106 S.W.2d 51) on the ground that the trial court erred in overruling the motion in arrest, but certified the cause to this court on the theory that the ruling reached was in conflict with the ruling by the St. Louis Court of Appeals in State ex rel. Witte Hdw. Co. v. McElhinney, 100 S.W.2d 36. The cause having been certified to the Supreme Court in accordance with the Constitution, Amendment of 1884, Section 6, it is here the same as if it had come by appeal from the trial court. [Heald v. Aetna Life Ins. Co., 340 Mo. 1143, 104 S.W.2d 379; Berry v. Equitable Fire & Marine Ins. Co., 317 Mo. 1119, 298 S.W. 63, l. c. 66.]

Error is assigned (1) on overruling the motion in arrest; (2) on refusing a peremptory direction for a directed verdict in favor of appellant at the close of the whole case; (3) on the admission and exclusion of evidence; (4) on sustaining the public service company's demurrer to the evidence at the close of plaintiff's case; (5) on refusing to grant a new trial on the alleged ground that plaintiff "committed willful perjury;" and (6) on alleged interference with the cross-examination of witnesses.

Did the court commit error in overruling the motion in arrest? The full assignment on overruling the motion in arrest is: "The court erred in overruling appellant's motion in arrest of judgment, because the verdict is void, incomplete, does not dispose of the parties or issues, and is insufficient to sustain the judgment." Without setting out the motion, we think it sufficient to say that the grounds included in the assignment are embraced within the motion.

The verdict was returned on November 22, 1935, and on same day, judgment on the verdict was entered, reciting as follows: "Now on this day comes again the same parties herein and comes also the jury and the hearing of evidence is again resumed and at the close of the plaintiff's evidence defendant, Kansas City Public Service Company, offers a peremptory instruction in the nature of a demurrer to plaintiff's evidence which the court marks 'given' and to which action and ruling of the court plaintiff excepts. And after hearing remainder of the evidence, the reading of the instructions of the court and arguments of counsel for the respective parties, said jury having retired to the jury room to deliberate upon said verdict and after due deliberation, said jury returned into court the following verdict, to-wit (Here follows verdict):

"Wherefore, it is ordered and adjudged by the court that plaintiff have and recover of and from defendant Kansas City, the said sum of five thousand ($ 5,000.00) dollars, together with the costs of this cause and have thereof execution.

"It is further ordered and adjudged by the court that this cause be and the same is hereby dismissed as to said defendant Kansas City Public Service Company, and that it go hence hereof without day and recover of plaintiff its costs and have thereof execution."

We might here explain the situation in the case of State ex rel Witte Hdw. Co. v. McElhinney, the case on which the Court of Appeals based its certification of the present case to this court. The Witte Hardware Company had a cause against someone (not named in the opinion) on a promissory note in Judge McElhinney's c...