Phegley v. Graham

• Citation: 215 S.W.2d 499,358 Mo. 551
• Decision Date: 13 December 1948
• Docket Number: 40901
• Parties: Leo Phegley, Respondent, v. Robert Graham, Appellant, Haughton Elevator Company, a Corporation, Respondent
• Court: Missouri Supreme Court

215 S.W.2d 499

358 Mo. 551

Leo Phegley, Respondent, v. Robert Graham, Appellant, Haughton Elevator Company, a Corporation, Respondent

No. 40901

Supreme Court of Missouri

December 13, 1948

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed (subject to remittitur).

Moser Marsalek, Carpenter, Cleary & Carter and Lee M Carter for (defendant) appellant Robert Graham.

(1) The court erred in instructing the jury that the third-party defendant could be held liable only if it had so changed or negligently repaired the elevator mechanism as to cause the dangerous condition alleged to have resulted in the accident. Franklin v. Columbia Terminals Co., 150 F.2d 667; Orcutt v. Century Building Co., 201 Mo. 424, 99 S.W. 1062; Roettig v. Westinghouse Electric & Mfg. Co., 53 F.Supp. 588; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122. (2) The court erred in submitting to the jury instructions which were contradictory, inconsistent and confusing in that instructions numbered 4 and 5 given at the request of third-party defendant are in conflict with the instructions numbered 3 and 6 given at the request of plaintiff and this defendant. Two different declarations of the law were given to the jury, only one of which could be correct and the jury was thereby misled and confused. Fisher v. Ozark Milk Service, 201 S.W.2d 305; Kelley v. United Mutual Ins. Assn., 149 S.W.2d 905, 236 Mo.App. 748; Ward v. First Natl. Bank, 27 S.W.2d 1066, 224 Mo.App. 472; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1. (3) The erroneous and conflicting declarations of law to the jury affected and prejudiced the substantial rights of appellant, and by reason of this fact and for the further reason that the appellant is third-party plaintiff with respect to defendant, Haughton Elevator Company, appellant is entitled to relief notwithstanding the fact that plaintiff has not appealed from the judgment in favor of the elevator company. State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Civil Code of Missouri, Sec. 20. (4) Plaintiff was guilty of contributory negligence as a matter of law. Senseney v. Landay Real Estate Co., 345 Mo. 128, 131 S.W.2d 595; Cox v. Bondurant, 220 Mo.App. 948, 7 S.W.2d 403, on certiorari writ quashed; State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60; O'Dell v. Dean, 204 S.W.2d 248. (5) The verdict was excessive, not supported by plaintiff's own evidence as to his injury and damage, and so disproportionate to the evidence as to indicate bias and prejudice on the part of the jury. Morris v. Atlas Portland Cement Co., 19 S.W.2d 865, 323 Mo. 307; Reeves v. Thompson, 211 S.W.2d 23, (decided May 10, 1948); Turner v. Central Hardware Co., 186 S.W.2d 603, 353 Mo. 1182; Willis v. Atchison, T. & S.F. Railway Co., 178 S.W.2d 341, 352 Mo. 490; O'Brien v. Vandalia Bus Line, 173 S.W.2d 76, 351 Mo. 500; Osby v. Tarlton, 85 S.W.2d 27, 336 Mo. 1240.

Evans & Dixon, William W. Evans and John F. Evans for Haughton Elevator Company.

(1) The final judgment in favor of the defendant having disposed of all issues of liability with respect to plaintiff's claim, and there being no live issue of affirmative relief as between appellant and Haughton Elevator Company, the rights or liabilities of Haughton are not subject to review on appeal, and the court has no jurisdiction. Sec. 129, Civil Code (Sec. 847.129, Mo. R.S.A.); Supreme Court Rule 3.24; Reese v. St. Louis, 280 Mo. 123, 216 S.W. 315; Thalheim v. Suhren, 18 La. App. 46, 137 So. 874, 875; affirmed and followed in Pacific Fire Ins. Co. v. Employers' Liability Assur. Corp., 34 So.2d 796. (2) Appellant's sole interest in plaintiff's claim against Haughton Elevator Company was a contingent right of contribution in the event of a joint judgment, and this contingent right was extinguished by the final judgment in favor of Haughton. Appellant cannot complain on appeal that no joint judgment was rendered. Sec. 3658, R.S. 1939; State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559. (3) Appellant's complaints with respect to alleged errors in instructions given on behalf of the other defendant must be limited to the proposition that such alleged errors affected the question of appellant's liability to plaintiff, and he cannot complain that such alleged errors disposed of the rights or liabilities of Haughton Elevator Company. Barr v. Nafziger Baking Co., supra. (4) The substantive law with respect to the several rights or liabilities of the parties was not changed or affected by the third-party procedure created by Section 20 of the Civil Code. State ex rel. McClure v. Dinwiddie, supra; 13 Missouri Law Review, p. 223; Richmond v. Town of Largo, 127 F.2d 264. (5) Appellant's complaints of error as to Instructions 4 and 5 are unavailing as to Haughton Elevator Company for the additional reasons that: No submsisible case of liability was established against Haughton under the issue made by the pleadings and evidence; (6) The instructions are correct as to form and fairly hypothesize evidence which would completely absolve Haughton from liability on plaintiff's claim; (7) Any conflict with Instructions 3 and 6 results from erroneous declarations in the latter instructions.

Kramer & Chused and Everett Hullverson for (plaintiff) respondent; Forrest Boecker of counsel.

(1) Alleged errors in Instructions 4 and 5 and the alleged conflict between those instructions and Instructions 3 and 6 do not constitute any basis for reversal of this judgment for the reason that such alleged errors in instructions did not prejudice the rights of the appellant Robert Graham as against the respondent-plaintiff. Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898; Maher v. Donk Bros. Coal & Coke Co., 323 Mo. 799, 20 S.W.2d 888; Clark v. St. Louis & Suburban Ry. Co., 234 Mo. 396, 137 S.W. 583; Mollman v. St. Louis Pub. Serv. Co., 192 S.W.2d 618. (2) Instructions 4 and 5 were, in any event, not erroneous or prejudicial to appellant. See brief of Haughton Elevator Co., pp. 12 to 16. (3) The judgment as between plaintiff and defendant Haughton Elevator Company is final, and since defendant Graham did not submit to the jury any claim of defendant Graham against defendant Elevator Company, the judgment as between the two defendants should be held to be final under the Code of Civil Procedure, and appellant-defendant Graham should not be heard to complain of alleged errors affecting only the rights of the defendants inter se. Camden v. St. Louis Public Serv. Co., 206 S.W.2d 699; Code of Civil Procedure, Secs. 20, 77. (4) There was no evidence of contributory negligence, but nevertheless the question was properly submitted to the jury. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25; J.I. Case Threshing Machine Co. v. Buick Motor Co., 39 F.2d 305; Baldwin v. Hanley & Kinsella Coffee Co., 202 Mo.App. 650, 216 S.W. 998; Fox v. Missouri Jobbing House, 32 S.W.2d 130; Franklin v. Columbia Terminals Co., 150 F.2d 667; Katz v. North Kansas City Dev. Co., 223 Mo.App. 606, 14 S.W.2d 701; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226; Grote v. Hussmann, 204 Mo.App. 466, 223 S.W. 129; Heimer v. Stento, 270 A.D. 665, 63 N.Y.S. (2d) 29, S.C. 64 N.Y.S. (2d) 917; Hyde v. Maison Hortense, Inc., 132 Misc. 399, 229 N.Y.S. 666, affirmed 232 N.Y.S. 776, affirmed 252 N.Y. 534, 170 N.E. 133; Eggert v. Mut. Grocery Co., 111 N.J.L. 502, 168 A. 312; Lotspiech v. Continental Illinois Natl. Bk. & Trust Co., 316 Ill.App. 482, 45 N.E.2d 530; Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194; Smith v. Kedney Warehouse Co., 197 Minn. 558, 267 N.W. 478, S.C. 269 N.W. 633; Bender v. White, 199 Wash. 510, 92 P.2d 270. (5) The amount of the verdict is reasonable and not excessive and the judgment should not be disturbed on this account. Margulis v. National Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Potashnik v. Pearline, 43 S.W.2d 790; Gieseking v. L. & M. Railway Co., 344 Mo. 672, 127 S.W.2d 700; Easterly v. American Inst. of Steel Constr., 349 Mo. 604, 162 S.W.2d 825; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Joice v. M.K. & T.R. Co., 354 Mo. 439, 189 S.W.2d 568; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604; Simmons v. K.C. Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Cole v. Ulhmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; West v. Kurn, 48 S.W.2d 752; Badalamenti v. U.S., 160 F.2d 422; Carrano v. Red Star Transit Co., 58 F.Supp. 643; Kircher v. A.T. & S.F. Ry. Co., CCH Ins. Law Reports, 16 Negl. Cases 156 Sept. 8, 1948.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Leo Phegley recovered a judgment of $ 25,000 against Robert Graham, the owner of the Park Manor hotel, St. Louis Missouri, for injuries sustained when he lost his balance and fell down the passenger elevator shaft at said hotel. The Haughton Elevator Company, a corporation, was also a party defendant but was exonerated by the jury. Defendant Graham appealed. He makes no contention respecting his submitted actionable negligence in permitting the interlocking device on the hoistway door of the elevator shaft to become so worn as to permit of its opening while the car was not at the floor level. He contends plaintiff was guilty of contributory negligence as a matter of law; that he was prejudiced with regard to his liability to plaintiff by his codefendant's instructions, and that the verdict was excessive. The first and last contentions call...