Nowlin v. Kansas City Public Service Co.

• Decision Date: 06 March 1933
• Docket Number: No. 17664.,17664.
• Citation: 58 S.W.2d 324
• Parties: NOWLIN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

58 S.W.2d 324

NOWLIN v. KANSAS CITY PUBLIC SERVICE CO.

No. 17664.

Kansas City Court of Appeals. Missouri.

March 6, 1933.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be published in State Reports."

Action by Nora Nowlin against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals. Motion to dismiss the appeal.

Motion denied, and judgment reversed, and cause remanded.

Charles L. Carr, of Kansas City, E. M. Tipton, of Jefferson City, and E. E. Ball, of Kansas City, for appellant.

J. B. McFarland and C. R. Leslie, both of Kansas City, for respondent.

TRIMBLE, Judge.

This is an action for personal injuries alleged to have been sustained by plaintiff on September 4, 1929, at 4:30 p. m. Plaintiff was driving a Chevrolet coupé south on Warwick boulevard on the west or right-hand side of the street between Thirty-Sixth and Thirty-Seventh streets in Kansas City. While so driving, and, as claimed by her, to avoid collision with an on-coming automobile or bus of defendant, she suddenly put on her brakes. Her automobile skidded, turned across facing eastward in said block, and ran up into a private driveway across the east sidewalk of said Warwick boulevard and stopped, or came nearly to a standstill, on private property, ten or twelve feet inside and east of said sidewalk, this being at a point wholly on private property and outside of Warwick boulevard and where she was wholly outside of the line of travel of any vehicle on said Warwick boulevard.

The motorbus, operated by defendant in the carriage of passengers, was coming north on Warwick boulevard, and, at the intersection of Thirty-Seventh street, passed a northbound Ford, and, in going around it, said bus went well over onto the west, or plaintiff's, side of the street, and, at the instant the bus was passing the Ford, plaintiff threw on her brakes, and her automobile started to skid in a generally south direction until it turned crosswise of the street, and when in that position it stopped skidding with its front end about the center of the street, and then immediately shot into and through the driveway on the east side of the street to a point some five or six feet inside of the sidewalk in front of said property. When defendant's bus got around the Ford, plaintiff's automobile had started to skid, and at that time the bus was getting back to the center, or to the right side of, the street. When plaintiff's automobile stopped, or nearly stopped, on the private property aforesaid, at a point some five or six feet inside thereof, as heretofore stated, it was struck "a little slanting at about the middle" by the front end of the defendant's bus, which came up over the curb, parkway, and sidewalk and across the yard, and injured plaintiff.

The trial was had on plaintiff's second amended petition which, after alleging the foregoing in substance, charged that defendant's bus "ran into, upon and against plaintiff's said automobile by reason of the negligence of defendant, and by reason thereof and as a direct result thereof, caused personal injuries to the plaintiff hereinafter more particularly and specifically alleged."

Plaintiff then pleaded a long list of injuries and a seriously injured condition; that "all of said injuries herein complained of are lasting and permanent, and from which plaintiff has suffered much pain of body and mind and will so suffer for a long time."

Plaintiff further pleaded loss of earnings in the sum of $1,000, and that she would lose future earnings, wherefore she prayed for $25,000 damages and for costs.

The answer was first a general denial and then an attempted plea of contributory negligence phrased thus: "That if plaintiff received any injuries or damage to herself as alleged in her second amended petition, such injuries and damage were the result of her own negligence and failure to exercise the highest degree of care for her own safety at the time and place alleged."

A trial resulted in a verdict, signed by nine jurors, awarding plaintiff a recovery of $5,591.18, from which defendant duly appealed.

Respondent plaintiff has filed a motion to dismiss the appeal herein on two grounds: (1) That appellant failed to include in its abstract plaintiff's reply which she says was filed in court on April 30, 1931. (2) That appellant's statement of the case is not a "clear and concise statement of the case without argument, reference to issues of law or repetition of testimony of witnesses."

As to the first ground, namely, that the abstract does not include the reply, we might dispose of the point by saying the case was tried by all parties and the court, as if a reply had been filed; hence no possible harm could result from the failure to include a reply if one were filed. Moreover, from the affidavit of one of appellant's counsel and the certificate of the clerk, in opposition to the motion, it appears that, up to the time of preparing the record for appeal in this case, no reply was actually filed, and hence it could not be found when searched for. It seems it was afterward filed and made a part of the record by an order of the trial judge entered nunc pro tunc on December 27, 1932. The case was docketed for hearing in this court on January 7, 1933, and appellant was required to deliver a copy of its abstract to the attorney for respondent at least 20 days before that. Consequently the reply charged to have been omitted from the abstract did not come into existence until after the time to serve abstract and brief had expired.

Again, an examination of the answer reveals that it is no more than a general denial; while it attempts to plead contributory negligence, it is at best a mere denial of the allegations of the petition. Benjamin v. Metropolitan St. Ry., 245 Mo. 598, loc. cit. 612, 614, 151 S. W. 91; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.(2d) 548, 555. Now, where the answer is a general denial, a reply has no function to perform, since the issues are already made. Lastly, neither the statute (section 1028, R. S. Mo. 1929, Mo. St. Ann. § 1028) nor our rules provide such a drastic punishment as dismissal of the appeal for failure to include a reply in the abstract. Respondent, if a reply were necessary to be shown but was not, should have filed a supplemental abstract. Gooden v. Modern Woodmen of America, 194 Mo. App. 666, 676, 189 S. W. 394. See, also, on the point here considered, State ex rel. Wallace State Bank v. Trimble, 308 Mo. 278, loc. cit. 287, 272 S. W. 72.

The second ground of plaintiff's motion to dismiss is that defendant's statement in its brief does not comply with the rules. The statement is longer than necessary, and contains matter that, under the rules, it need not contain; but it does give a fairly clear and understandable view of the case which, in its facts and because of some of the points raised, is somewhat different, in the nature of the statement required, from the ordinary case. Under such circumstances, it will not justify the imposition of such a penalty as the dismissal of the appeal. Neff v. Sovereign Camp, W. O. W., 226 Mo. App. 899, 48 S.W.(2d) 564; Hartweg v. Kansas City Railways Co. (Mo. App.) 231 S. W. 269. We should not dismiss an appeal on mere technical grounds, but only when a violation of the rule has resulted in a real evil which the rule was made to avoid; where, as here, the respondent has filed her own statement which, even if the appellant's statement were deficient, gives the court a clear bird's-eye view of the case, the purpose of a statement is subserved, and the motion to dismiss will be denied. Hyde v. Henman (Mo. App.) 256 S. W. 1088, 1090. Although a statement may contain some things that are not needed, such does not necessarily call for dismissal. If it performs its office, it may come under the maxim, "The useful is not vitiated by the useless." State ex rel. Nafziger Baking Co. v. Trimble (Mo. Sup.) 247 S. W. 146, 147. The motion to dismiss is overruled.

At the close of plaintiff's evidence, a demurrer was interposed which was overruled, and then defendant introduced its evidence, and afterwards, at the close of all the evidence, the defendant again demurred. Since the first demurrer was waived, we need notice only the last-mentioned demurrer, contained in defendant's refused instruction B.

The first point under this head is the contention that plaintiff's testimony is so glaringly conflicting, or inconsistent and contradictory, as to conclusively show she testified untruthfully one way or the other, and therefore it has no weight or probative force. This, and other points made and hereinafter considered, call for a somewhat detailed statement of her evidence.

Stated somewhat compactly, her evidence is:

That on September 4, 1929, she was driving a Chevrolet coupé, with two-wheel brakes, south on Warwick boulevard in Kansas City, Mo., between Thirty-Sixth and Thirty-Seventh streets. The boulevard runs north and south, and the said two streets are parallel to each other and run east and west. As plaintiff was driving south, defendant's motorbus was coming north on Warwick. (Plaintiff's half of the boulevard was therefore the west half thereof while the motorbus' line of travel was on the east half thereof.) She was just entering the 3600 block when she first saw the bus. At that time it "was just a little below" or south of Thirty-Seventh, coming north on Warwick boulevard. When she was "about one-third of the way down in the block, or perhaps, a little more than a third of the way, this bus coming north, passed and went around a Ford about the intersection of Thirty-Seventh Street." The Ford was "well out in the street several feet." The left or west side of the Ford "was well to the center of the street, more to the center of the street than it was to the east curb." The bus went around the Ford "sufficiently that it cleared it by several feet, throwing it well over on...