Teague v. Plaza Exp. Co.

• Citation: 205 S.W.2d 563,356 Mo. 1186
• Decision Date: 10 November 1947
• Docket Number: 40319
• Parties: Clyde Teague v. Plaza Express Company, a Corporation, Carl Collier and Alice Louise Teague, Appellants
• Court: United States State Supreme Court of Missouri

205 S.W.2d 563

356 Mo. 1186

Clyde Teague v. Plaza Express Company, a Corporation, Carl Collier and Alice Louise Teague, Appellants

No. 40319

Supreme Court of Missouri

November 10, 1947

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

R F. Baynes and Jones & Jones for appellants.

(1) Respondent's motion for new trial was not at the time the court sustained the motion then pending before the court. Respondent's motion for new trial had become automatically overruled at least by April 1, 1945. Secs. 3, 118, New Code for Civil Procedure, pp. 357, 389, Laws of Mo 1943. (2) No appeal was taken by respondent and the time for taking an appeal by respondent had expired long before the court sustained the motion for new trial on February 10, 1947. Secs. 129, 130, New Code, pp. 390, 391, Laws of Mo., 1943. (3) Appellants' requested Instruction 7D was a correct instruction, and an instruction to which appellants were entitled under the evidence. The court therefore erroneously sustained respondent's motion for new trial on the assigned error that Instruction 7D was erroneous. Doherty v. St. L. Butter Co., 98 S.W.2d 742, 339 Mo. 996; Borgstedde v. Waldbauer, 88 S.W.2d 373, 337 Mo. 1205; Causey v. Wittig, 11 S.W.2d 11; Kimbrough v. Chervitz, 186 S.W.2d 461, 353 Mo. 1154; Dipaoli v. Langemann, 192 S.W.2d 35; Billingsley v. K.C. Pub. Serv. Co., 191 S.W.2d 331, 353 Mo. 1234; Lankford v. Thompson, 189 S.W.2d 217, 354 Mo. 220. (4) Instruction 10D was a correct instruction; and especially is this true when Instruction 10D is viewed and considered in the light of all of the other instructions given in the case. Instructions in a case are construed as a whole, and the jury could not have been misled or confused by Instruction 10D given by the court. The court therefore erred in sustaining respondent's motion for new trial upon the specified ground that Instruction 10D was error. Engleman v. Railway Express Agency, 100 S.W.2d 540, 340 Mo. 360; Connole v. East St. Louis & S. Ry. Co., 102 S.W.2d 581, 340 Mo. 690; Shelton v. McHaney, 92 S.W.2d 173, 338 Mo. 749; Young v. Sinclair Refining Co., 92 S.W.2d 995; Sollars v. Railway Co., 187 S.W.2d 513; State ex rel. v. Bank of Lewis County, 102 S.W.2d 774; Collins v. Leahy, 102 S.W.2d 801.

Ward & Reeves and Hal H. McHaney for respondent.

(1) The motion for new trial was filed prior to the effective date of the new civil code. It was, therefore, discretionary with the trial court to apply the old rules of civil procedure to respondent's motion, and where a motion for new trial is sustained more than ninety days after it has been filed and where the motion was filed prior to January 1, 1945, it is conclusively presumed by the appellate court that the trial court in its discretion determined that the old rules of civil procedure should be applied. Davis v. Lynn, 354 Mo. 1118, 193 S.W.2d 609; R.S. Mo. 1939, Sec. 847.3. (2) On appeal from an order of the trial court in sustaining a motion for new trial, the action of the trial court will be sustained, if errors have been committed, even though such errors be insufficient to reverse the judgment. Taylor v. Farmers Bank of Chariton County, 161 S.W.2d 343; Thompson v. St. Joseph Ry. Co., 131 S.W.2d 574; Bunyan v. Citizens' Ry. Co., 127 Mo. 12, 29 S.W. 842; Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S.W. 257; Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1110; Stafford v. Ryan, 276 S.W. 636; Wolfson v. Cohen, 55 S.W. 2d 677. (3) The trial court properly ruled upon defendants' Instruction 7-D and properly granted plaintiff a new trial because of the giving of such erroneous instruction. There were no evidentiary facts upon which to base said instruction. White v. Teague, 177 S.W.2d 517; White v. Teague, 182 S.W.2d 288; White v. Plaza Express Co., 188 S.W.2d 847; Teague v. Plaza Express Co., 190 S.W.2d 254; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Stanich v. Western Union Teleg. Co., 348 Mo. 188, 153 S.W.2d 54; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Boyce v. Donnellan, 237 Mo.App. 63, 168 S.W.2d 120. (4) The hypothesized items of negligence standing separately were insufficient to authorize a finding that the alleged negligence of the third party, Alice Teague, in said particulars, was the sole cause of plaintiff's injuries. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Grady v. St. L.-S.F.R. Co., 329 Mo. 459, 44 S.W.2d 634; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Stanich v. Western Union Teleg. Co., 348 Mo. 188, 153 S.W.2d 54; Boyce v. Donnellan, 237 Mo.App. 63, 168 S.W.2d 120. (5) It is not negligence per se to fail to stop at a stop sign, if the same is observable. Hartley v. McKee, 86 S.W.2d 359; Roberts v. Wilson, 33 S.W.2d 169. (6) The instruction makes no requirement that Alice Teague be on watch for cars ahead in her path or approaching her path. The instruction, therefore, does not require a finding of all the essential facts upon which a jury's finding could have been properly based. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Greer v. St. Louis Pub. Serv. Co., 87 S.W.2d 240; Nash v. Peoples Motor Bus Co. of St. Louis, 20 S.W.2d 570. (7) The third hypothesized state of facts contained in this instruction, i.e., that Alice Teague negligently ran her car toward and into the intersection at a high, unsafe and dangerous rate of speed, likewise does not hypothesize sufficient facts to authorize a finding of sole cause negligence. Sec. 8383, R.S. 1939. (8) The effect of Instruction 7-D was to direct a verdict in favor of the defendants upon either of the three asserted causes of negligence of Alice Teague. Such being true, the omission from said instruction of all the elements necessary to constitute such charges of negligence cannot be cured by other instructions in the case. State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Schultz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Thompson v. Quincy, O. & K.C.R. Co., 18 S.W.2d 401. (9) The first paragraph of Instruction 10-D is unintelligible and not understandable. Said instruction is, therefore, confusing and erroneous. Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587, 45 S.W. 634; Greer v. St. L., I.M. & S. Ry. Co., 80 Mo. 555; State v. Day, 47 S.W.2d 147; James v. Mo. Pac. Ry. Co., 107 Mo. 480, 18 S.W. 31. (10) The first paragraph of this instruction is self-contradictory and inconsistent with plaintiff's theory of the case. Said paragraph asserts that plaintiff seeks to recover damages on the theory plaintiff was in place of peril and oblivious thereto in time, by the exercise of ordinary care thereafter to avoid striking the vehicle driven by defendant. Larey v. M., K. & T.R. Co., 333 Mo. 949, 64 S.W.2d 681; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742. (11) By the second paragraph of Instruction 10-D the plaintiff was required to prove that the said Carl Collier saw or by the exercise of the highest degree of care could have seen the occupants of the Teague car in a place of imminent, immediate and inescapable peril and that the driver of the Teague car was oblivious thereto. (12) It placed too great a burden upon the plaintiff, is in conflict with plaintiff's instructions, submits a physical impossibility, is self-contradictory, and too narrowly restricts the zone of peril. State ex rel. K.C. Pub. Serv. Co. v. Bland, 191 S.W.2d 660; Banks v. Morris & Co., 302 Mo. 254, 257 S.W.2d 482; White v K.C. Pub. Serv. Co., 193 S.W.2d 60; Bresler v. K.C. Pub. Serv. Co., 186 S.W.2d 524; Prater v. Rausch, 344 Mo. 888, 129 S.W.2d 910; Collins v. Beckman, 79 S.W.2d 1052; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142.

OPINION

Hyde, J.

This action is for $ 15,000 damages for personal injuries, sustained in a collision between an automobile, in which plaintiff was riding, driven by her daughter, defendant Alice Louise Teague, and a truck owned by defendant Plaza Express Company and driven by defendant Collier. The jury's verdict was for the Express Company and Collier; but they found for plaintiff against her daughter. However, the trial court sustained plaintiff's motion for new trial and also the motion of defendant Alice Teague. The Express Company and Collier have appealed from the order granting a new trial against them.

The collision occurred at the junction of Pemiscot County Route U (upon which Alice Teague was driving west about 50 miles per hour) with United States Highway 61 (upon which Collier was driving north about 35 miles per hour); it was dark and both had their lights on. There was a junction sign, a warning sign and a stop sign on Route U east of the junction and also curving approaches to take traffic into Highway 61 both north and south of the right angle intersection. The weather was clear and dry and the surrounding country was flat so the car lights could be seen for more than a mile. Alice Teague was unfamiliar with the road, did not know she was approaching the intersection, did not see any of the signs and did not see the truck. She never slackened speed and did not realize there would be a collision until it occurred. Collier had been over the road frequently and was familiar with the intersection. There have been three cases in the appellate courts for damages for deaths or injuries caused by this collision. They are White v. Teague (Mo. App.), 177 S.W.2d 517 and White v. Teague, 353 Mo. 247, 182 S.W.2d 288 (same case); White v. Plaza Express Co. (Mo App.), 188 S.W.2d 847; Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254. Reference is made to these opinions for...