Rozen v. Grattan
| Decision Date | 16 July 1963 |
| Docket Number | No. 31270,31270 |
| Citation | 369 S.W.2d 882 |
| Parties | Saul ROZEN, Plaintiff-Respondent, v. Paul GRATTAN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Evans & Dixon, John C. Shepherd, Paul V. Gilbert, Edward F. Downey, St. Louis, for appellant.
Samuel A. Goldblatt, William L. Mason, Jr., James E. McDaniel, St. Louis, for respondent.
BRADY, Commissioner.
The parties will be referred to by their designation in the trial court. The jury returned a verdict for the defendant on his counterclaim and judgment was so entered. Plaintiff's timely motion for new trial was sustained by the trial court and defendant appeals. In view of the circumstances of this appeal, only a brief statement of the factual situation will be necessary.
Both plaintiff's cause of action and defendant's counterclaim arose out of an automobile accident which occurred on February 12, 1960, at the intersection of Hampton Avenue and Arsenal Street in the City of St. Louis, Missouri. Hampton Avenue runs north and south and Arsenal Street runs east and west. Hampton is six lanes wide and Arsenal is four lanes wide. There are electric traffic signals controlling traffic on both Hampton and Arsenal at this intersection. It was a sunny day and the streets were dry. Plaintiff was proceeding south on Hampton Avenue. Defendant was driving west on Arsenal Street. Defendant was driving at twenty to twenty-five miles per hour in the center lane for westbound traffic on Arsenal. As he approached the intersection, the light was in his favor, but as he was about three-fourths across the first northbound lane of Hampton, the light turned amber. His testimony was that he was seventy-five or one hundred feet from the intersection when he first saw the stop sign and that '* * * I looked straight ahead, a chauffeur always looks straight ahead' and that he never saw the plaintiff's automobile until he was 'turned around' by the force of the impact. He further testified that he proceeded at the same twenty to twenty-five mile per hour speed at all times. Defendant testified that the front end of his automobile was almost through Hampton when the impact occurred, with his automobile being struck at the front and rear doors on the right side.
Plaintiff's evidence was that as he approached the intersection of Hampton and Arsenal, the light was red and he came to a complete stop in the outside or most westward lane of southbound traffic. He was there about one and one-half minutes, being the first car at the light in his lane. There was an automobile in the lane to his left. He could see the lights both ways and both were working. He looked to his left and saw a car about sixty or seventy feet from him coming west on Arsenal at about twenty-five or thirty miles per hour and about fifty feet from the east curb line of Hampton. He saw no indication that defendant would not stop. He then looked to his right and straight ahead and did not again see the defendant until the impact occurred some ten feet out into Arsenal. He shifted to first gear as the signal changed to go (the automobile had a standard transmission) and started to move, going about five miles per hour. In plaintiff's own words: 'As I proceeded forward, the car left of my side was moving about the same direction, I couldn't saw (sic) what model or what type of car it was, because it was directly--it was moving the same general direction I was going, about the same speed, and all of a sudden, he stopped, and I tried to stop, and I stopped mine, naturally I went forward out a little bit more than he did, because I was watching him stopping first, then I stopped.' The point of impact on the plaintiff's automobile was at the left front fender. He heard no horn nor the sound of any brakes being applied and he testified that defendant did not swerve his automobile. The plaintiff produced the witness, Sommer, who testified he was stopped at the light, waiting to go north on Hampton and that he saw the defendant's car approaching; that when the defendant was about twenty-five feet from the intersection and going about thirty miles per hour, the signal changed; that he could tell the defendant was not going to stop and that the car to plaintiff's stopped after starting to cross the intersection.
The plaintiff submitted his case to the jury on two primary negligence instructions: Instruction No. 1 charging violation of the electric signal, and Instruction No. 2 charging failure to keep a lookout. Defendant's case was submitted to the jury on humanitarian negligence on plaintiff's failing to stop or slow his automobile. Neither party contends that the other failed to make a submissible case and, in fact, both admit the submissibility of the other's case. Both parties suffered personal injuries in addition to their property damage. In his answer, the defendant set forth the affirmative defense of contributory negligence. However, he did not offer an instruction on that issue and none was given.
The jury returned a verdict as follows:
'We, the jury in the above entitled cause, find in favor of the defendant and against the plaintiff on defendant's counterclaim and assess defendant's damages for the aggregate of the items in connection with his personal injuries the sum of Fifteen Hundred ($1,500.00) Dollars; and for the aggregate of the items of damages in connection with the injury to defendant's property, the sum of Five Hundred ($500.00) Dollars; aggregating the total sum of Two Thousand ($2,000.00) Dollars.
'E. W. Campbell, Foreman.'
This court has proceeded under Civil Rule 82.12(c), V.A.M.R., to secure the following additional information. There were two other verdict forms given the jury in this case. One of those provided for a verdict in favor of the defendant on plaintiff's cause of action and in favor of the plaintiff on defendant's counterclaim. The other verdict form provided for a verdict for the plaintiff on plaintiff's cause of action, the assessment of his damages, and further provided a finding in favor of the plaintiff on defendant's counterclaim. Both of these verdict forms were returned unmarked in any manner.
The transcript discloses that the jury was polled and there was no objection to the verdict forms as submitted or as returned by the jury. No judgment was ever entered for or against the plaintiff on his cause of action.
Thereafter plaintiff filed his timely after-trial motion which included as one of the allegations of error, paragraph 25, which reads as follows:
Again proceeding under Civil Rule 82.12(c), V.A.M.R., this court has had reference to the original files in the trial court. These disclose that on April 24th, four days after plaintiff filed his notice of appeal, defendant filed in the trial court a dismissal of his counterclaim without prejudice and at his costs. It further appears that on that same day the trial court ordered dismissal of defendant's counterclaim without prejudice and at defendant's costs. The records of this court disclose that on April 26th, six days after the filing of the notice of appeal and two days after the above dismissal in the trial court, the defendant filed the same dismissal with the Clerk of this court. In both instances, the dismissal was signed by the defendant and his attorney of record.
The trial court granted the plaintiff's motion for new trial on the ground contained in paragraph 25 of that motion as set out earlier herein. Defendant has perfected this appeal contending that the verdict in his favor on his counterclaim submitted on humanitarian negligence necessarily precludes the plaintiff from a recovery upon his cause of action submitted upon two assignments of primary negligence. He also contends that the plaintiff waived any error when he failed to object to the form of the verdict when it was given to the jury or returned by them.
The effect of defendant's attempted voluntary dismissal of his counterclaim without prejudice must first be determined. In Lavignon v. Dietzel, Mo., 34 S.W.2d 92, and in Stocker v. J. C. Penny Co., Mo.App., 338 S.W.2d 339, l. c. 344, it was held that a party could dismiss as to one of several claimed to be jointly liable even though the proceedings were then in the appellate court. We think that rule equally applicable to the case at bar. However, regardless of the stage the proceedings have reached, a party does not have an absolute right to dismiss. Smith v. Taylor, Mo.App., 289 S.W.2d 134, l. c. 140. The vital question is whether the dismissal will prejudicially affect the rights of other parties to the action. 27 C.J.S. Dismissal and Nonsuit Sec. 26, p. 355.
Civil Rule 67.04, V.A.M.R., Sec. 510.160, RSMo 1959, V.A.M.S., provides that the dismissal of any counterclaim shall be subject to the same rules as the dismissal of a plaintiff's cause of action. Civil Rule 67.01, V.A.M.R., Sec. 510.130, RSMo 1959, V.A.M.S., provides 'A plaintiff shall be allowed to dismiss his action without prejudice at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward. * * *' Civil Rule 67.03, V.A.M.R., Sec. 510.150, RSMo 1959, V.A.M.S., provides that '* * * Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal * * * shall be with prejudice * * *.' In the...
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