Quinn v. St. Louis Public Service Co.

• Decision Date: 08 December 1958
• Docket Number: No. 2,No. 46369,46369,2
• Citation: 318 S.W.2d 316
• Parties: Rush QUINN, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Sylvester Woolfolk, Appellants
• Court: Missouri Supreme Court

Page 316

318 S.W.2d 316

Rush QUINN, Respondent, v.ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Sylvester Woolfolk, Appellants.

No. 46369.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1958.

William J. Hormberg, St. Louis, Lloyd E. Boas, St. Louis, of counsel, for joint appellantsSt. Louis Public Service Co. and Sylvester Woolfolk.

William C. Martin, St. Louis, for respondent.

STORCKMAN, Presiding Judge.

Plaintiff sued for $25,000 as damages for personal injuries alleged to have been sustained while a passenger on a motorbus of the defendant, St. Louis Public Service Co., herein sometimes referred to as the transit company.The bus was being driven and operated by the defendantSylvester Woolfolk, an employee of the company.The plaintiff also joined as a defendant, Roy Ross, the driver of an automobile which collided with the motorbus at a street intersection in the City of St. Louis.The plaintiff dismissed with prejudice as to the defendant Ross at the close of plaintiff's case.The verdict and judgment were in favor of the plaintiff and against the transit company in the sum of $2,000, but in favor of the defendant Woolfolk.None of the parties filed a motion for new trial, but the transit company filed an after-trial motion for judgment notwithstanding the verdict and in accordance with its motion for a directed verdict.The trial court within thirty days after rendition of the judgment, of its own motion, granted all the parties a new trial and overruled the transit company's motion for judgment.The defendantSt. Louis Public Service Company and its driver, the defendant Woolfolk, have appealed.

Plaintiff's petition alleged specific negligence as to all of the defendants.It charged that the defendant transit company and the bus driver operated the bus at an excessive speed, failed to stop on the first appearance of danger, failed to maintain proper control of the bus, failed to maintain a proper lookout, failed to swerve the bus and thereby avoid the collision, and humanitarian negligence.With respect to the defendant Ross, the petition charged that he failed to maintain proper control of his automobile, failed to stop at the first appearance of danger, failed to maintain a proper lookout and failed to observe an intersectional stop sign.

At the close of plaintiff's case, after the dismissal of the defendant Ross, the defendant transit company and its driver filed their motion for a directed verdict which was overruled.Evidence was then introduced on behalf of these defendants.All of the evidence in the case tended to show there was a collision between the bus and the automobile after which the bus ran a distance of about 20 feet and struck a wooden utility pole against which it came to rest.

Plaintiff chose to submit his case to the jury on the hypothesis that the bus driver was negligent in failing to control the bus after the collision with the automobile and in permitting it to strike the utility pole.His instruction on liability (which is not to be taken as a model) is as follows:

'If you find from the evidence that in the collision between the bus and the car, the bus driver was not negligent; and if you further find from the evidence that subsequent to said collision the bus driver failed to exercise the highest degree of care to reep his bus under control and as a direct result thereof the bus struck the utility pole; and if you further find from the evidence that Rush Quinn was a passenger on the bus in question and as a direct result of the bus colliding with the utility pole in question, while in the exercise of due care for his own safety, was injured, then your verdict should be for the plaintiffRush Quinn and against the defendants.'(Emphasis added.)

On this appeal the defendant transit company and its driver present these contentions: (1)the plaintiff failed to prove a submissible case against either of the defendants on the issue submitted; (2)the court erred in granting plaintiff a new trial against the defendant Woolfolk, in that the court failed to specify the grounds for granting a new trial and failed to show cause for granting a new trial; (3)the court erred in overruling defendant transit company's motion for judgment because its liability was dependent solely on the doctrine respondeat superior and the verdict was in favor of the defendant servant; and (4)the court erred in granting a new trial because the order was made without notice to the parties and an opportunity to be heard.

The plaintiff-respondent did not see fit to file a brief in this court and make an oral argument.Ordinarily a respondent is not required to file a brief.As stated in Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286, 288: 'The law casts the laboring oar upon appellant, and respondent intrusts his oar (whether laboring or otherwise) to this court.'If the trial court grants a new trial without specifying of record the ground or grounds upon which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed upon the respondent and he may be required to prepare and file the original brief.Supreme Court Rule 1.10, 42 V.A.M.S.;Missouri Crooked River Backwater Levee Dist. of Ray County v. Merrifield, 358 Mo. 915, 218 S.W.2d 110.It has been the policy of this court to encourage briefs and oral argument by both parties.When a party does not do so, he foregoes an opportunity to aid the court in arriving at a proper decision.Seldom are cases which reach the appellate courts so one-sided that the respondent can afford not to brief it.This is especially true where, as here, the contention is made that the trial court failed to specify the grounds upon which the new trial was granted, and the case presents complex procedural problems and important substantive questions.

Where a trial court of its won initiative orders a new trial, the order granting the new trial must specify the grounds therefor.Section 510.370 RSMo 1949, V.A.M.S.; Supreme Court Rule 3.25.The order granting the new trial is as follows: 'Within thirty days after verdict and on court's own motion, plaintiff and defendants, also, are granted new trial under ruling of Supreme Court of Missouri in Atterbury v. Temple Stephens Company, et al181 S.W.2d 659.'Thereafter on the same day the clourt denied the motion of the transit company for judgment.

In the Atterbury case, a corporate defendant and its manager were sued for personal injuries.The verdict and judgment were for the plaintiff and against the corporate defendant, but in favor of the defendant manager.The corporate defendant and the plaintiff appealed.The corporate defendant contended that it was exonerated by the verdict and was entitled to have judgment because it would be liable only under the doctrine of respondeat superior and the exoneration of the servant, ipso facto, exonerated the master.The plaintiff contending for a new trial as to both defendants urged that two forms of verdict given the jury on the trial court's own motion constituted reversible error because they were tantamount to an instruction that the jury was authorized to find in favor of one defendant and against the other.The court held that it was reversible error to give the juty these two forms of verdict, 'absent request, consent or invitation, or absent evidence of negligence other than' by the store manager.181 S.W.2d 661 .The court held, however, that there was evidence from which the jury could find that plaintiff's injuries were caused by the negligence of a clerk who was not a party to the action and that the giving of these forms of verdict was not erroneous under the circumstances.

We assume that the trial court intended to specify the submission of the two forms of verdict, similar to those in the Atterbury case, as the grounds for a new trial.One of these permitted the jury to find in favor of the plaintiff and against the defendantSt. Louis Public Service Company, but in favor of the defendant Woolfolk; the other form was for use if the jury found in favor of the plaintiff and against defendant Woolfolk, but in favor of the defendantSt. Louis Public Service Company.However, we do not think the case falls within the rule announced in the Atterbury case because the record indicates that these forms of verdict were given to the jury without objection and by the 'consent or invitation' of the parties.In Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602, 604, the judgment was reversed and the cause remanded for error in the giving of such forms of verdict and the court stated: 'The giving, by the trial court, of this form of verdict was in effect, and tantamount to, an instruction that they were authorized to hake such finding and was apparently so understood by them and therefore misleading and prejudicial.'

In the Ruehling case, the plaintiff objected and excepted to giving the forms of verdict to the jury.This is in keeping with our practice; the complaining party should be required to make known at the time the verdict forms are given to the jury his objection to the court's action in order to preserve the question for review.SeeSec. 510.210;Sec. 512.160, subd. 1;Supreme Court Rule 3.23.The record shows no objection on that score.

Further it appears that these forms of verdicts were not inconsistent with instructions given on behalf of plaintiff and defendants.Therefore it may be said that the forms of verdict were given with consent or by invitation.The defendants' instruction No. 5, submitting sole cause, treats the liability of the two defendants as separable.It states that if plaintiff's injuries '* * * were not due to any negligence on the part of defendant, Sylvester Woolfolk, and defendant, St Louis Public Service Company, or either of them, as set out in Instruction Number One, then...