Teague v. Plaza Express Co., 40319.

• Decision Date: 10 November 1947
• Docket Number: No. 40319.,40319.
• Parties: CLYDE TEAGUE v. PLAZA EXPRESS COMPANY, a Corporation, CARL COLLIER and ALICE LOUISE TEAGUE, Appellants.
• Court: Missouri Supreme Court

205 S.W.2d 563 CLYDE TEAGUE
v.
PLAZA EXPRESS COMPANY, a Corporation, CARL COLLIER and ALICE LOUISE TEAGUE, Appellants. No. 40319. Supreme Court of Missouri. Division One, November 10, 1947.

[205 S.W.2d 564]

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...