Staples v. Dent
| Decision Date | 17 May 1949 |
| Docket Number | 27612 |
| Citation | 220 S.W.2d 791 |
| Parties | STAPLES v. DENT |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Dearing & Matthes, Hillsboro, for defendant-appellant.
Robert A. McIlrath, Flat River, for plaintiff-respondent.
HUGHES
Plaintiff (respondent) brought suit for damages to his motor truck occasioned on July 15, 1947, by the negligence of the defendant (appellant). Defendant's answer denied any negligence on his part and alleged contributory negligence on the part of the driver of plaintiff's truck, and counterclaimed for damages to his automobile growing out of the same accident because of the negligence of the driver of plaintiff's truck. A trial before the judge and a jury resulted in plaintiff's favor for $ 800. Defendant appeals.
The plaintiff's evidence was to the effect that the defendant was driving his automobile south on State Highway 21, being followed by the plaintiff's truck. When the defendant reached a point on the highway opposite a driveway leading to his residence located on the west side of the highway in the town of Caledonia, Missouri, he drove his automobile to the left and over onto the east half of the highway and as plaintiff's truck approached and when in close proximity to the defendant's automobile the defendant suddenly and without warning turned his automobile sharply to the right and drove directly into the path of plaintiff's approaching truck. That the driver of plaintiff's truck in order to avoid a collision with defendant's automobile, swerved sharply to the right causing the truck to leave the highway and to overturn, as a result of which plaintiff's truck was damaged.
The defendant's evidence was to the effect that on the occasion in question he was driving in a southerly direction over Highway 21 intending to drive into his driveway on the west side of the highway. That before attempting to turn to the right he looked to the south or to the rear of his automobile and saw the plaintiff's truck three or four hundred feet away. That his automobile was moving between five and six miles an hour. That the front of his automobile had reached a point west of the black top or traveled part of the highway and was traveling almost due west when the driver of plaintiff's truck attempted to pass his automobile on the right-hand side thereof, and struck the right front fender of defendant's automobile causing it to be pushed toward the east and damaged.
The instructions, which are concededly proper, were to the effect that if the jury believed from the evidence that defendant's negligence was the direct and proximate cause of the accident and damages to plaintiff's truck the verdict should be for the plaintiff, unless plaintiff's driver was guilty of contributory negligence. Or, if the jury believed from the evidence that the direct and proximate cause of the accident was negligence of the driver of plaintiff's truck, in attempting to pass defendant's automobile to the right thereof, and defendant's automobile was damaged thereby, the verdict should be for the defendant on the counterclaim.
The case was submitted to the jury, who returned a verdict as follows: 'We the Jury, find the issues in favor of the plaintiff and against the defendant and assess his damages at $ 800.00.'
The only point assigned by appellant is that the verdict and not dispose of the counterclaim and therefore the judgment entered thereon is defective, and the cause should be remanded for a new trial.
The law is well settled that an appeal can only be taken from a final judgment, and that to be final and appealable the judgment must dispose of all parties and all issues in the case. Severs v. Williamson, Mo.App., 198 S.W.2d 368 and cases therein cited. And ordinarily, where there is a counterclaim plead and relied upon, the verdict, which is the basis for the judgment, should state the finding of the jury on the counterclaim; however, there is a well-recognized exception to this rule, as in those cases where the finding upon the plaintiff's cause of action necessarily carries along with it a finding upon defendant's counterclaim, in which event the judgment should be sustained even though it makes no mention of the counterclaim. City of St. Louis ex rel. and to Use of Sears v. Clark, Mo.App., 35 S.W.2d 986; Cosgrove v. Stange, 194 Mo.App. 14, 183 S.W. 691; Dement v. McNail, Mo.App., 4 S.W.2d 831; Ragsdale v. Young, Mo.App., 215 S.W.2d 514.
The rule is stated in 49 C.J.S., Judgments, § 43, p. 102, as follows: 'Ordinarily judgment should not be rendered without disposing of matters raised by defendant's pleadings, such as a counterclaim or cross complaint, unless the determination of the issue on which the judgment is based is necessarily decisive of the whole case or the actions have been separated under statutes or court rules permitting such practice.' (Italics ours).
And in 27 R.C.L., Verdict, p. 855, § 27, it is stated as follows: ...
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