State v. Hughes

• Decision Date: 13 March 1941
• Docket Number: No. 37324.,37324.
• Parties: STATE ex rel. NEVINS v. HUGHES et al., Judges of St. Louis Court of Appeals.
• Court: Missouri Supreme Court

149 S.W.2d 836

STATE ex rel. NEVINS v. HUGHES et al., Judges of St. Louis Court of Appeals.

No. 37324.

Supreme Court of Missouri, Division No. 1.

March 13, 1941.

Rehearing Denied April 18, 1841.

Certiorari proceeding by the State of Missouri, on the relation of Natalie Nevins, against William C. Hughes and others, Judges of the St. Louis Court of Appeals, to quash the record and opinion by the St. Louis Court of Appeals in Nevins against Solomon and others, 139 S.W.2d 1109.

Writ of certiorari quashed.

Alvin A. Wolff, of St. Louis (Orville Richardson, of St. Louis, of counsel), for relator.

Moser, Marsalek & Dearing, of St. Louis, for respondents.

BRADLEY, Commissioner.

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. Ass'n 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. Brotherhood of L. F. & E. 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 $7,500 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 parrallel 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 loc. cit. 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 found for the iron company. Both the plaintiff and the railway company appealed. The trial court gave an instruction (No. 4) on behalf of the iron company, of which the railway company complained. In ruling the assignment on the instruction, the court said [234 Mo. loc. cit. 424, 137 S.W. loc. cit. 591,]: "The third answer to appellant's assault upon said instruction No. 4 is that it was not given at the request of the respondent [plaintiff], but at the instance of the defendant iron and foundry company. The law in this state is well settled that the respondent cannot be affected by instructions asked or given between defendants", citing Taylor v. Grand Avenue Ry. Co. et al., Div. 1, 137 Mo. 363, loc. cit. 368, 39 S.W. 88; O'Rourke v. Lindell Railway Co. et al., Div. 1, 142 Mo. 342, loc. cit. 353, 44 S.W. 254; Beave v. St. Louis Transit Co., Div. 2, 212 Mo. 331, loc. cit. 355, 111 S.W. 52.

The Beave case was commenced against the St. Louis Transit Company, the United Railways Company, and the Missouri Pacific Railway Company for personal injuries. The cause was dismissed as to the United Railways Company. The jury found for plaintiff for $7,500 against the transit company, but found for the Missouri Pacific Railway Company. The transit company appealed, and among the assignments was one on an instruction given at the request of the Missouri Pacific. In ruling this assignment, the court said [212 Mo. loc. cit. 355, 111 S.W. loc. cit. 59]: "The respondent is not responsible for errors committed by the court in giving or refusing instructions declaring the rights of the defendants among themselves. He took no part in that, and could not have prevented the action of the court in that regard. If error it was in giving said instruction, plaintiff, adopting the quotation as made in the brief of counsel for respondent, could but sit `like patience on a monument, smiling at grief.'"

Maher v. Donk Bros. Coal & Coke Co. et al., Div. 1, 323 Mo. 799, 20 S.W.2d 888, for personal injuries, was commenced against the coal company, Hauser, Maritz, Bernard and Bessie Susman. At the close of plaintiff's evidence the cause was dismissed as to Bernard Susman and Hauser. The jury found in favor of plaintiff and against the coal company for $20,000, and found for Maritz and Bessie Susman. The coal company appealed. Error was assigned on an instruction given at the request of Bessie Susman. In ruling the assignment the court said [20 S.W.2d loc. cit. 894]:

"In ruling the demurrer we held the direction of Mrs. Susman to the driver not to dump the coal on the lawn was no evidence of an intention to change the contract for a delivery in the basement. * * * Defendant company challenges an instruction given at the request of Mrs. Susman, for the reason the instruction amounted to a directed verdict against the company in so far as its defense that Mrs. Susman changed the contract by directing the driver not to dump the coal on the lawn. The instruction directed a verdict for defendant Bessie Susman if the jury found that she ordered the coal from defendant company to be delivered in her basement, then until the coal was so delivered she had no supervision or control over the same. If erroneous, the defendant company cannot avail itself of the error, for the instruction defines the rights of a codefendant", citing the Clark, O'Rourke, and Beave cases, supra, and Wiggin v. St. Louis, Div. 1, 135 Mo. 558, 37 S.W. 528.

Story v. People's Motorbus Company, Div. 2, 327 Mo. 719, 37 S.W.2d 898 was an action for personal injuries and was brought against the Peoples Motorbus Company and the National Refining Company. The jury returned a verdict for plaintiff against the bus company for $18,500, but found for the refining company. The bus company...