Porter v. C.B. & Q. Railroad Co.

• Decision Date: 03 June 1930
• Docket Number: Nos. 27636-29848.,s. 27636-29848.
• Citation: 28 S.W.2d 1035
• Court: Missouri Supreme Court
• Parties: WILLIAM S. PORTER, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. MEDA PORTER, Administratrix of Estate of WILLIAM S. PORTER, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

28 S.W.2d 1035

WILLIAM S. PORTER, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. MEDA PORTER, Administratrix of Estate of WILLIAM S. PORTER, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

Nos. 27636-29848.

Supreme Court of Missouri, Division One.

June 3, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED (with directions).

Charles P. Noell and Foristel, Mudd, Blair & Habenicht for appellant.

(1) The effect of specifying, as required by statute, the reason for sustaining a motion for new trial, is to overrule all other grounds of the motion for new trial and create a presumption that they are without merit. State ex rel. v. Thomas, 245 Mo. 73; Dietrich v. Brewery & Ice Co., 315 Mo. 513; Manthey v. Contracting Co., 311 Mo. 156; Kersten v. Hines, 283 Mo. 634. (2) In considering an objection to an instruction all instructions relevant to the same phase of the case are to be read together as one instruction. City v. Hunze, 314 Mo. 468; Myers v. Wells, 273 S.W. 117. Under the statute all instructions, when given, are the court's instructions. Sec. 1417, R.S. 1919; Powell v. Railroad, 255 Mo. 457. (3) The words of the court's "reason" are to be construed with reference to the context and the spirit of the statute. Sec. 1454, R.S. 1919; Bartley v. Ry. Co., 148 Mo. 138. (4) Instruction 3 is a rescript of an instruction heretofore approved in all respects. Price v. Ry. Co., 220 Mo. 457; Bond v. Ry. Co., 315 Mo. 999; Powell v. Railroad, 255 Mo. 458. (5) Instruction 4 is sound in all respects under the decisions of this court. Powell v. Railroad, 255 Mo. 453; West v. Railroad, 187 Mo. 364; Waddell v. Railroad, 213 Mo. 20; Hicks v. Simonsen, 307 Mo. 334. (6) In any event, Instruction 6 asked by respondent and given by the court, forecloses all question on instructions 3 and 4 referred to in the court's reason. Powell v. Railroad, 255 Mo. 454; Hicks v. Simonsen, 307 Mo. 334. (7) The instructions mentioned in the court's "reason" are not open to criticism on any theory. Authorities supra. (8) Plaintiff was a passenger, and this is a res ipsa loquitur case. Price v. Railroad, 220 Mo. 435; Bond v. Ry., 315 Mo. 1002.

H.J. Nelson and Douglas W. Robert for respondent.

(1) The motion in arrest of judgment having been sustained unconditionally, and no appeal having been taken from the order, the case is moot and the appeal should be dismissed. State ex rel. Bond v. Fisher, 230 Mo. 325; Stid v. Railroad, 211 Mo. 414; Swift v. Fire Ins. Co., 202 Mo. App. 419, 279 Mo. 606; Segall v. Garlichs, 313 Mo. 406; Snoddy v. Pettis Co., 45 Mo. 361; Secs. 1457, 1469, R.S. 1919; 15 R.C.L. 684, sec. 134. (2) Appellant has not assigned as error, in the brief, the order sustaining the motion in arrest of judgment, nor has she presented it in any form therein; hence she has abandoned it and cannot complain of it, and the appeal should be dismissed. Kleinlein v. Foskin, 13 S.W. (2d) 648; Mahmet v. Radiator Co., 294 S.W. 1014; Gottschalk v. Wells, 274 S.W. 399; Backman v. Railroad, 274 S.W. 764; Heigold v. Railways, 308 Mo. 142; Stewart v. Stewart, 262 S.W. 1016; Littig v. Railways Co., 292 Mo. 226; Heimenz v. Harper, 275 Mo. 584; State v. Carothers, 214 S.W. 858; State ex rel. v. Drainage Dist., 269 Mo. 444; Midwest Bank v. Corn Co., 211 Mo. App. 413. (3) Instruction 3 was erroneous. It was an abstract proposition of law, not applied to the facts, as it did not require the jury to find any causal connection between the collision and plaintiff's injury, and placed the burden of proof upon the defendant without first requiring the jury to find that plaintiff was injured in the collision. Dinsmore v. Hartmann, 256 S.W. 1031; Van Bibber v. Swift, 286 Mo. 317; Kane v. Ry. Co., 251 Mo. 13; Harper v. Terminal Co., 187 Mo. 575; Fisher v. Lead Co., 156 Mo. 579; Bluedorn v. Ry. Co., 121 Mo. 258; Kelly v. Railroad, 75 Mo. 138; Glenn v. Foundry Co., 294 S.W. 1021; Hendry v. Judge, 211 Mo. App. 166; Cherry v. Railroad, 163 Mo. App. 53; Campbell v. Transit Co., 121 Mo. App. 406. (a) It ignores the principal issue in the case. Preston v. Railroad, 292 Mo. 442; Zeis v. Brewing Assn., 205 Mo. 638; Cytron v. Transit Co., 205 Mo. 692; Greer v. Parker, 85 Mo. 107; Turner v. Loler, 34 Mo. 461; Farmers Bank v. Trust Co., 203 S.W. 674; Albright v. Oil Co., 206 Mo. App. 412; Mallmann v. Harris, 65 Mo. App. 127; Kennedy v. Klein, 19 Mo. App. 15. (b) It really covered the whole of plaintiff's case, omitting a vital element of plaintiff's cause of action, that is, that the jury was not required to find that the injuries of plaintiff were proximately caused by the collision. Stoneman v. Ry. Co., 58 Mo. 503; Duvall v. Cooperage Co., 275 S.W. 586; Frank v. Meletio, 251 S.W. 95; Brimer v. Davis, 211 Mo. App. 47. (c) The cases of Price v. St. Ry., 220 Mo. 435, and Powell v. Railroad, 255 Mo. 420, from which Instruction 3 was copied, are distinguishable in that in those cases the injury in the accident was conceded, not contested, while here the question of injury in the accident was contested. In the case of Bond v. Railroad, 315 Mo. 97, the instruction did require the jury to first find that fact. See, also, Loftus v. Railroad, 220 Mo. 470. (4) Instruction 4 was erroneous in that it did not limit the recovery to injuries plaintiff sustained in the collision. It referred to injuries which the jury might find "from the evidence he received," when both plaintiff's and defendant's evidence showed that arthritis he alleged was received in the collision, he had suffered from for years. And the same is true as to the permanence. Heigold v. Rys. Co., 308 Mo. 142; State ex rel. v. Ellison, 270 Mo. 645; Hall v. Coke Co., 260 Mo. 351; McDonald v. Crider, 272 S.W. 980; Hendry v. Judge, 211 Mo. App. 166; Hoagland v. Rys. Co., 209 S.W. 569. Defendant's Instruction 6 did not cure the error in plaintiff's Instruction 4. Ross Lumber Co. v. Turner, 253 S.W. 119; Doty v. Railroad, 136 Mo. App. 254; Ross v. Street Ry. Co., 132 Mo. App. 472; Herbert v. Boot & Shoe Co., 90 Mo. App. 305. (5) The respondent is entitled to support the order granting a new trial on any other ground mentioned in the motion, than the one upon which the trial court grants the new trial. Berkemeir v. Reller, 296 S.W. 739; Dietrick v. Brewery Co., 315 Mo. 507; Manthey v. Contracting Co., 311 Mo. 147; Gaty v. Ry. Co., 286 Mo. 503; Thicle v. Ry. Co., 140 Mo. 319-335; Hewitt v. Steele, 118 Mo. 463. (6) The verdict is excessive. All the evidence showed that plaintiff had suffered for years from the complaints for which he sought recovery. He was sixty-one years old and died of disease eleven months after the accident. Of course as to excessive verdict "each case must be ruled on its own peculiar facts." Sallee v. Ry. Co., 12 S.W. (2d) 481; Kleinlein v. Foskin, 13 S.W. (2d) 659.

FRANK, J.

Action by plaintiff, William S. Porter, against respondent railroad, T.A. Briscoe and J.P. Murphy to recover damage for personal injuries. The verdict of the jury was in favor of defendants Briscoe and Murphy, and against defendant railroad in the sum of $10,000. In due time defendant railroad filed two motions, one for a new trial, the other in arrest of judgment. The trial court by order entered of record sustained both motions. Plaintiff appealed from the order and judgment of the court sustaining defendant's motion for new trial.

After the appeal was granted, plaintiff, William S. Porter, died, and the cause was revived in the name of Meda Porter, administratrix of the estate of William S. Porter, deceased, and she, as such administratrix, was substituted as party plaintiff. Thereafter plaintiff filed a motion in the Motion in Arrest trial court praying that the record of the Sustained: Appeal. trial court be corrected nunc pro tunc by expunging that part of the order and judgment of the trial court sustaining defendant's motion in arrest of judgment. A hearing was had and the trial court corrected the record in accordance with the prayer of plaintiff's motion and entered of record the order and judgment as corrected, showing the motion for new trial sustained, and the motion in arrest of judgment still pending and undetermined. Defendant appealed from the order correcting the judgment, and that appeal has been consolidated with plaintiff's appeal from the order sustaining defendant's motion for new trial.

In our view of the law, it is immaterial to a final and proper determination of this case, whether we accept the record of the trial court as corrected or as it was originally made. The result would be the same in either event. In this situation an extended opinion on the nunc pro tunc proceedings would serve no useful purpose.

Taking the record as corrected, it shows that the trial court sustained defendant's motion for new trial, but made no order on the motion in arrest of judgment. In that situation an appeal would lie from the action of the court on the motion for new trial, although the motion in arrest of judgment was still pending. [Stid v. Railroad, 211 Mo. 411, 109 S.W. 663.] Defendant insists, however, that we should reverse the action of the trial court in correcting the record and consider this appeal in the light of the record as originally made. For reasons already stated we will not lengthen this opinion with a discussion of the nunc pro tunc proceedings, but will say in passing that we have carefully examined the record and do not find any evidence which, in our judgment, would authorize the correction of the record. We, therefore, reverse the action of the trial court in that regard and will decide the case on the record as originally made and entered.

Taking the record as originally made it shows that the trial court sustained defendant's motion for new trial and motion in arrest of judgment and plaintiff appealed from the action of the court in sustaining the motion for new trial.

Defendant insists that the...