Taylor v. Slider

• Citation: 185 Ky. 756,215 S.W. 827
• Parties: TAYLOR v. SLIDER ET AL.
• Decision Date: 21 November 1919
• Court: Court of Appeals of Kentucky

215 S.W. 827

185 Ky. 756

TAYLOR v. SLIDER ET AL.

Court of Appeals of Kentucky.

November 21, 1919

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Suit by James T. Taylor against E. T. Slider and another. Judgment dismissing case for want of prosecution, and plaintiff appeals. Affirmed.

O'Doherty & Yonts, of Louisville, for appellant.

Elmer C. Underwood, of Louisville, for appellees.

THOMAS J.

This suit was brought in the Jefferson circuit court to recover damages for personal injuries alleged to have been sustained by appellant, who was plaintiff below, against the appellees E. T. and C. C. Slider, members composing the firm of E. T Slider & Son.

The plaintiff alleged in his petition that about dark on the evening of September 23, 1916, he was traveling east on the River road outside of the city of Louisville, in Jefferson county; that when he was a short distance from the Country Club, to which place he had been with his wagon, a large automobile belonging to the defendants collided with his team and wagon, killing his horse and smashing the wagon and injuring him on different parts of his body. For the damages thus sustained he asked a judgment against the de--fendants in the sum of $15,000. The negligent acts alleged were that defendants were driving their automobile at a high, reckless and dangerous rate of speed, and without lights.

The answer denied the specific acts of negligence alleged in the petition, and further denied that the injuries sued for were sustained by reason of any negligence on the part of the defendants. It also contained a plea of contributory negligence, which was denied by a reply. Upon trial there was a verdict and judgment in favor of plaintiff for the sum of $2,500, but it was afterward set aside, upon a motion for a new trial filed by defendants, upon the ground that the court in its instructions to the jury submitted other issues of negligence than those alleged in the petition. Objections and exceptions were taken to the order sustaining the motion, and in due time a bill of exceptions was filed containing all the evidence heard, as well as the instructions offered and given at the trial. Subsequently the plaintiff entered motion to set aside the order granting a new trial, which was continued from time to time for a period of more than 60 days from the time it was made, and the court then overruled it upon the ground that he had lost jurisdiction to entertain it, since action upon it should have been taken within the sixty days. Plaintiff reserved exceptions to this ruling of the court, and, when the case was called for a second trial, he made a motion to be permitted to read the testimony of three of his witnesses heard upon the former trial. The court overruled the motion, to which the plaintiff excepted, and the transcript shows this order:

"This action having been called for trial, came plaintiff by counsel and declined to introduce any testimony in his behalf herein.

It is ordered by the court that this action be and the same is dismissed for want of prosecution, to which the plaintiff excepts." It is the above judgment dismissing the case for want of prosecution which plaintiff seeks to reverse by this appeal He has brought before us the full transcript of the first trial, and asks that we not only reverse the judgment dismissing the case, but that the trial court be directed to set aside the order granting the new trial and to reinstate the judgment for $2,500 in his favor.

Briefs of counsel discuss in an interesting and learned manner many questions which they conceive to be presented and pertinent to this hearing, but in which we think they are mistaken, for the reason which we will hereafter consider. The questions discussed are: (1) The propriety of the order granting the new trial; (2) the sufficiency of the petition to authorize a recovery for any negligence except that specifically alleged; (3) the effect of the answer, as well as the admission of evidence without objection, to cure the omission in the petition and allow plaintiff to recover on any other negligence than that which he alleged, upon the ground that the omission was cured by the answer and the verdict; (4) the order of the court overruling plaintiff's motion to set aside the order granting the new trial; and (5) the alleged error of the court in overruling plaintiff's motion made on the day for the second trial to read the transcript of testimony of the three witnesses which he mentioned in his motion.

Incidentally, and growing out of the above questions, counsel also discuss the finality of the judgment appealed from; but, as stated above, a decisive preliminary question, which seems to have been overlooked by counsel for both sides, renders it unnecessary, according to our view, to discuss any of the questions enumerated above. That preliminary question is the right of the plaintiff, under the facts disclosed by the record, to prosecute this appeal.

The universal rule regulating the right of appeal is that it will not lie in favor of one unless there has been an involuntary adverse judgment against him. If the judgment appealed, from was rendered at his instance, upon his motion, or by his consent, he will not be allowed to complain of it on appeal, and, when it is rendered by the court because of some voluntary conduct on the part of the complaining litigant necessitating the judgment, it has the same effect in this respect as if it had been rendered upon his motion. The rule is thus stated in 3 Corpus Juris, pages 500, 501:

"As a general rule, in the absence of a statute, an appeal or writ of error will not lie at plaintiff's instance, either at law or in equity, from a judgment, order, or decree of dismissal or discontinuance entered at his request or with his consent, or from a voluntary nonsuit, as he is estopped by his consent. It has also been held that a nonsuit is voluntary within this rule, and no appeal will lie therefrom, although plaintiff consented or submitted to the same because of an adverse ruling of the court

...