Page v. Hamilton

Decision Date09 November 1959
Docket NumberNo. 2,No. 47085,47085,2
Citation329 S.W.2d 758
PartiesDorothy Ruth PAGE, Appellant, v. Van Ray HAMILTON, Respondent, and Asa Breckenridge Crowe, Appellant
CourtMissouri Supreme Court

James F. Koester, St. Louis, for Page, Joseph W. Toeniskoetter, St. Louis, of counsel.

Evans & Dixon, John C. Shepherd, St. Louis, for Crowe.

STORCKMAN, Judge.

This is a personal injury action arising out of a collision of automobiles in which the jury returned a verdict in favor of the plaintiff and against both defendants in the sum of $26,500 and in favor of defendant Crowe for $3,500 on his cross-claim against the defendant Hamilton. The defendant Crowe filed a motion for judgment in accordance with his motion for a directed verdict or, in the alternative, for a new trial on plaintiff's cause of action. The defendant Hamilton filed no aftertrial motion. From a memorandum of the court, it appears that defendant Hamilton's insurance company went into receivership and his counsel withdrew. He is not represented in this court.

Within thirty days after verdict and judgment, the trial court overruled the motion of defendant Crowe for judgment but sustained his motion for new trial on the issue of liability on the ground that the finding for plaintiff against the defendant Crowe was inconsistent with the verdict in favor of defendant Crowe on his cross-claim against defendant Hamilton. On the court's own motion a new trial was ordered of defendant Hamilton's liability to plaintiff on her cause of action. Also on the court's own motion the verdict in favor of defendant Crowe on his cross-claim against defendant Hamilton was set aside and a new trial was ordered on the issue of liability. In each instance the finding of the jury on the issue of damages was not disturbed but was ordered held in abeyance pending a retrial of the liability issues.

The plaintiff and the defendant Crowe have both appealed. The plaintiff contends that the trial court erred in ordering a retrial of the liability issue of her action against the defendants Hamilton and Crowe because of the alleged inconsistency of the verdict. The defendant Crowe contends the court erred in the overruling of his motion for judgment in accordance with his motion for a directed verdict, in failing to grant a new trial upon the issue of plaintiff's damages as well as upon the issue of liability, and in failing to grant a new trial on the ground the verdict was excessive or in refusing to order a substantial remittitur. Defendant Crowe further contends that if the court should hold that the verdict is not inconsistent, as the plaintiff contends, then Crowe's judgment on his cross-claim against the defendant Hamilton should be reinstated.

The plaintiff has filed a motion to dismiss defendant Crowe's appeal. First she asserts that defendant Crowe did not file his transcript of the record on appeal within the time and manner provided for by Secs. 512.130 and 512.140 RSMo 1949, V.A.M.S., and S.Ct. Rule 3.26, 42 V.A.M.S., and that his appeal should be dismissed pursuant to Rule 1.30. The plaintiff and the defendant Crowe appealed on the same day and the transcript was filed in this court within the time as extended by the trial court on plaintiff's application. The plaintiff relies upon the fact that the transcript does not show that any extension of time was granted to the defendant. This contention is without merit.

Rule 1.04(c) provides: 'Where more than one appeal is taken from the same judgment a single transcript on appeal shall be prepared and each appellant shall pay his share of the cost.' Pursuant to this rule a single transcript was prepared and both parties shared the expense. The joint transcript was timely filed and it is immaterial that the defendant did not join in requesting an extension of time.

The plaintiff also alleges that the appeal should be dismissed because the defendant Crowe is not an aggrieved party within the meaning of the appeal statute, section 512.020. This results, the defendant says, because defendant's motion for a new trial was sustained in part and the order holding the finding on the issue of damages in abeyance does not constitute a final judgment.

The cases cited by plaintiff, holding that a defendant cannot appeal from the overruling of his motion for judgment in accordance with his motion for a directed verdict in cases where his motion for new trial is sustained, are not applicable. Nor is Schneider v. St. Louis Public Service Co., Mo., 238 S.W.2d 350, which the plaintiff cites, of any help; the ruling in the Schneider case was reviewed and corrected in Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77. The plaintiff has cited no case directly ruling the question she has raised. It appears, however, if her contention in this regard were correct, that her own appeal might be subject to the same infirmity.

Section 501.330 authorizes the grant of a new trial 'on all or part of the issues after trial by jury, court or referee.' Section 512.020 permits any party aggrieved by any judgment of a trial court in any civil action to appeal, inter alia, from any order granting a new trial or from any final judgment in the cause.

A party cannot appeal from a judgment wholly in his favor, one that gives him all he asks; but he can appeal from a judgment which gives him only a part of the relief he seeks. Scott v. Parkview Realty & Improvement Co., 241 Mo. 112, 145 S.W. 48, 50.

Where, on defendant's motion after an adverse verdict, the court grants a new trial on the issue of liability only or on the issue of damages only and overrules the motion in all other particulars, the new trial ordered is in effect on the court's own motion since it is one for which the defendant did not ask in his motion and one which the plaintiff did not seek, and the court's order constitutes an order granting a new trial under section 512.020 from which both the plaintiff and the defendant, as aggrieved parties, can appeal. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695, 34 A.L.R.2d 972.

Other contentions in the motion to dismiss, which relate to the scope of review rather than the validity of the appeal, will be disposed of as they arise in the course of the opinion. The plaintiff's motion to dismiss the appeal of defendant Crowe is overruled.

Defendant Crowe's contention that he was entitled to a directed verdict in his favor on plaintiff's cause of action requires an examination of the evidence in that respect. Since charges of negligence not submitted to the jury are deemed abandoned, our determination is limited to whether the plaintiff made a case against the defendant Crowe on the humanitarian theory of negligence on which the case was submitted. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323; Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 245; Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 785. More specifically defendant Crowe contends that the evidence is insufficient to establish that he could have avoided the collision with reasonable safety to himself and his passenger by slackening the speed of his automobile and swerving to his right after the plaintiff came into a position of imminent peril. Such evidence must be viewed in the light most favorable to the verdict. Allen v. Hayen, Mo., 320 S.W.2d 441, 442.

The automobile collision out of which the causes of action arose occurred February 17, 1957, about twelve miles south of Festus, Missouri, in Ste. Genevieve County, on U. S. Highway No. 61, a two-lane concrete pavement running generally in a north and south direction. The highway was quite level in that vicinity and without curves. The time was about 4:15 on a Sunday afternoon. The weather was clear and sunny, the visibility was good and the pavement was dry. The plaintiff was a passenger in an automobile owned by John Hamilton and being driven northwardly by his brother, the defendant Van Ray Hamilton. The owner John Hamilton was also a passenger in the car en route to St. Louis. The defendant Crowe was driving his automobile southwardly returning from St. Louis to his home in Charleston accompanied by his mother, Mrs. Harry Crowe. Just prior to the accident the Hamilton car was traveling at or near the rear of a line of northbound cars estimated to be from fifteen to twenty in number. The defendant Hamilton pulled out into the southbound lane in an effort to pass a car or cars ahead of him and the Hamilton and Crowe cars collided; the plaintiff and the defendant Crowe were among those injured. At least portions of the two cars were on the west shoulder of the highway when the impact occurred but their exact positions are disputed.

The plaintiff remembered none of the events bearing upon the question of liability. The evidence in this regard was furnished mainly by the defendants Crowe and Hamilton and a member of the Missouri State Highway Patrol. Defendant Hamilton testified in substance that he was traveling 50 to 55 miles per hour when he came upon the line of cars proceeding northward at about the same speed. He pulled out into the southbound lane intending to pass the car ahead of him increasing his speed as he did so. He could see a quarter of a mile down the road but did not see any southbound car. When he was completely in the southbound lane, a Studebaker automobile, the second car ahead of him in the line, also pulled out but almost immediately turned back into the northbound traffic lane. Then for the first time Hamilton saw the Crowe car coming south about 300 to 400 yards ahead of him in the southbound lane. He estimated the speed of the Crowe car to be between 60 and 70 miles per hour. Hamilton testified that he immediately applied his brakes but could not get back into the northbound line of traffic. When the automobiles were...

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