State ex rel. Nevins v. Hughes

• Decision Date: 18 April 1941
• Docket Number: 37324
• Parties: State of Missouri at the relation of Natalie Nevins, Relator, v. William C. Hughes et al., Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

149 S.W.2d 836

347 Mo. 968

State of Missouri at the relation of Natalie Nevins, Relator, v. William C. Hughes et al., Judges of the St. Louis Court of Appeals

No. 37324

Supreme Court of Missouri

April 18, 1941

Writ quashed.

Alvin A. Wolff for relator; Orville Richardson of counsel.

(1) Solomon, on appeal, could not complain of the direction erroneous or otherwise, in conventional form of a verdict for Finn. Brickell v. Fleming, 281 S.W. 951; Barr v Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61 64 S.W.2d 617; Leighton v. Davis, 260 S.W. 986; Reese v. St. Louis, 280 Mo. 123, 216 S.W. 315; Maher v. Donk Bros. Coal Co., 323 Mo. 799, 20 S.W.2d 888; Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; McCamley v. Union E. L. & P. Co., 85 S.W.2d 200. (2) There was no "right of contribution" between Solomon and Finn before judgment against both, and Solomon on appeal could not complain of the erroneous direction of a verdict in favor of Finn on the ground that it prevented a joint judgment against both. State ex rel. Cunningham v Haid, 328 Mo. 208, 40 S.W.2d 1048; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Reese v. St. Louis, 280 Mo. 123, 216 S.W. 315. (3) Solomon could not complain of confusion or error occasioned by his own failure to request a clarifying instruction or to add a clarifying clause to his sole cause instruction. Simmons v. Wells, 323 Mo. 882, 20 S.W.2d 659; Burnham v. Chicago G. W. Ry. Co., 340 Mo. 25, 100 S.W.2d 858; Williams v. Guyot, 126 S.W.2d 1137; Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171. (4) Relator was not entitled to go to the jury against defendant Finn, since the only negligence proven against that defendant had not been pleaded. (a) On certiorari this court may examine plaintiff's petition contained in the abstract of record before the Court of Appeals, since such petition was incorporated in respondents' opinion by reference. State ex rel. Studebaker Corp. v. Trimble, 295 Mo. 667, 247 S.W. 119; State ex rel. K. C. v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. English v. Trimble, 320 Mo. 1113, 9 S.W.2d 624; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W.2d 826. (b) Relator's petition contained seven specific and two general charges of negligence against Finn, as well as Solomon. (c) The general charges were limited by the specific assignments of negligence. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21; Richardson v. K. C. Rys. Co., 288 Mo. 258, 231 S.W. 938.

Moser, Marsalek & Dearing for respondents.

(1) The opinion of the Court of Appeals, in holding that prejudical error as to defendant Solomon was committed by the giving of an improper instruction at the request of the codefendant Finn, which instruction affected the question of Solomon's liability to the plaintiff, does not conflict with any controlling opinion of this court. Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767; Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98. (2) The opinion of the Court of Appeals, in holding that the peremptory instruction given on behalf of defendant Finn at the close of all the evidence was improper, does not conflict with any controlling opinion of this court. (a) Under the evidence the question of the codefendant's negligence was for the jury to determine. Gilliland v. Bondurant, 332 Mo. 88, 59 S.W.2d 679. (b) Under the pleadings, the general allegations of negligence were sufficient to support a verdict against the codefendant. Kramer v. Power & Light Co., 311 Mo. 369, 279 S.W. 43; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893. (3) The opinion of the Court of Appeals, in holding that defendant Solomon was properly entitled to his "sole cause" instruction and that the giving of the conflicting peremptory instruction for Finn constituted reversible error, is not in conflict with any controlling opinion of that court. The "sole cause" instruction was in proper form and was properly given. Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Reiling v. Russell, 134 S.W.2d 33.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Certiorari to quash the record and opinion, by the St. Louis Court of Appeals, in Nevins v. Solomon et al., 139 S.W.2d 1109. We are concerned only with whether or not the opinion is in conflict with the last controlling decision of the Supreme Court. [State ex rel. Brotherhood of Locomotive Firemen & Enginemen v. Shain et al., 343 Mo. 666, 123 S.W.2d 1; State ex rel. Missouri Mut. Assn. v. Allen et al., 336 Mo. 352, 78 S.W.2d 862.] As to the facts, we are limited to such as appear in the opinion. [State ex rel. v. Shain et al., supra; State ex rel. Superior Mineral Co. v. Hostetter et al., 337 Mo. 718, 85 S.W.2d 743.]

The Nevins case was for damages for personal injuries sustained by the plaintiff while riding in an automobile driven by the defendant Solomon. The cause was commenced against Solomon, Great Eastern Oil Company, United Service Car Company, Sam and Goldy Finn, but dismissal was had as to all defendants, except Solomon and Sam Finn. At the close of the whole case both Solomon and Finn offered demurrers to the evidence. Solomon's was refused; Finn's was given. The jury, as directed, found for Finn, and returned a verdict for plaintiff for $ 7500 against Solomon and he appealed to the St. Louis Court of Appeals. That court reversed the judgment and remanded the cause and plaintiff Nevins petitioned for and was granted certiorari.

From the opinion: "According to the evidence of plaintiff and Solomon, as the automobile in which they were riding was traveling eastwardly on Lindell Boulevard and approaching Lake Avenue, in the City of St. Louis, the service car operated by Finn, passed it on the left and then suddenly turned to the right and cut in front of Solomon's automobile. Solomon's automobile was moving between 25 and 30 miles an hour in about the middle of the south half of Lindell Boulevard when it was passed by Finn's service car, which at that time was being driven at a speed of between 35 and 40 miles an hour. The evidence of plaintiff and Solomon further was to the effect that after Finn's car passed Solomon's car it turned sharply to the right and was brought to an abrupt stop at the curb; that when it stopped it was not parallel with the south curb of Lindell Boulevard, but was standing at an angle, the rear of the service car being farther from the curb than its front. No warning was given by Finn of his intention to stop. Solomon testified that in suddenly turning in front of him, Finn's automobile missed him by just a few feet and as soon as he saw the service car in the act of stopping he immediately applied his brakes, but before he could bring his automobile to a stop the right front end of it struck the left rear corner of the service car. Plaintiff's testimony was to the effect that after the service car cut in front of the Solomon automobile and when it came to a sudden stop, Solomon was trying to wrap a bathing suit, which was lying on the front seat, with one hand, and from her testimony it could be inferred that Solomon, because his attention was fixed on the bathing suit, did not seasonably notice the sudden stop of the service car. Finn's testimony was to the effect that he had not passed the Solomon automobile and that he stopped at the place of the collision to discharge a passenger and in so driving and stopping he did not cut in front of any automobile or do anything else unusual."

The peremptory direction to find for Finn was as follows: "At the close of the whole case the court instructs the jury that under the law and the evidence you must find for the defendant, Sam Finn, and against the plaintiff, Natalie Nevins."

A sole cause instruction, given at the request of Solomon, was to the effect that "if the jury believe that Finn turned his automobile into the path of the automobile of defendant Solomon, and stopped the same when the automobile of defendant Solomon was so close that a collision was likely to occur and that such act was negligent and was the sole cause of the collision, and that Solomon was not guilty of any negligence causing or contributing to cause the collision, that the verdict must be in favor of defendant Solomon."

After stating the facts the Court of Appeals said (139 S.W.2d l. c. 1111): "We have the anomalous situation of the court telling the jury, in effect, that if the collision was solely caused by Finn's negligence they must find in favor of Solomon, but that Finn was not negligent. Therefore, one of two conclusions is inescapable, either Finn was not entitled to his peremptory instruction or Solomon was not entitled to his sole cause instruction, the one is diametrically opposed to the other." And the Court of Appeals said that the question of major importance before them was whether Solomon had any right to complain on the giving of the peremptory direction to find for Finn, and held that he did have such right. The question here is whether such ruling conflicts with the last controlling decision by the Supreme Court.

In Clark v. St. Louis & Suburban Railway Company and the Union Iron Company (banc), 234 Mo. 396, 137 S.W. 583, alleged joint tort-feasors, plaintiff got a verdict against the railroad company for $ 20,000, but the jury...