Tunget v. Cook

• Decision Date: 24 June 1935
• Docket Number: No. 18348.,18348.
• Citation: 84 S.W.2d 970
• Court: Missouri Court of Appeals
• Parties: TUNGET v. COOK.

84 S.W.2d 970

TUNGET v. COOK.

No. 18348.

Kansas City Court of Appeals. Missouri.

June 24, 1935.

Rehearing Denied July 15, 1935.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Christle Tunget against F. L. Cook, who filed a counterclaim. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

John F. Thice, of Independence, and Hook & Sprinkle, of Kansas City, for appellant.

Wyman Wickersham and Price Wickersham, both of Kansas City, for respondent.

SHAIN, Presiding Judge.

In this action the respondent, hereinafter designated as plaintiff, seeks to recover damages from the appellant, hereinafter designated as defendant, for alleged injuries received in an automobile collision had with defendant's car. The defendant embraces in his answer a counterclaim wherein he seeks to recover damages against the plaintiff for alleged injury to his car and for alleged personal injuries.

The scene of the collision was on Van Horn road, an east and west highway four slabs wide, between Kansas City and Independence, at its intersection with Claremont street, about a half mile west of the city limits of Independence. Claremont street North is about 40 or 50 feet east of Claremont street South.

The plaintiff was driving eastwardly on Van Horn road on October 4, 1932, about 1:30 p. m., in the second lane from the south side of the road, and defendant, appellant here, was driving west on Van Horn road, with his car astraddle the center line of the two north slabs of Van Horn road.

The allegation of the plaintiff's petition included the following charges of primary negligence:

"Defendant negligently and carelessly failed and omitted to operate and drive his automobile in a careful and prudent manner and at a rate of speed as not to endanger plaintiff;

"Negligently and carelessly ran and operated same at a high, excessive, negligent, careless and dangerous rate of speed;

"Negligently and carelessly failed and omitted to have and keep the same under reasonable control;

"Negligently and carelessly failed and omitted to keep a reasonably careful and sufficient lookout ahead;

"Negligently failed to sound a reasonably sufficient, timely or any warning of his approach;

"Negligently failed and omitted to slacken the speed of his automobile as it approached said intersection."

There was also an allegation under the humanitarian doctrine in that, though plaintiff was in a position of imminent peril from the approaching automobile operated by defendant, and oblivious thereof until too late to extricate herself by due care, of which peril defendant knew or could have known by due care, in time to have stopped said automobile, or slackened the speed thereof, or given timely warning of its approach, or to have turned aside, and prevented the injury, which he failed to do.

The printed record in this case contains a copy of the verdict of the jury, which shows that the jury verdict was for the plaintiff on her suit for damages and against the defendant on his counterclaim. The printed record, however, nowhere gives the record of the judgment of the court.

By resorting to the record proper, we find it contains the verdict of the jury in conformity with the showing in the printed record. The judgment, as set forth in the record proper is as follows: "Wherefore, it is Ordered and Adjudged by the court that plaintiff do have and recover of and from the defendant the sum of Four Thousand Five Hundred ($4,500.00) Dollars, together with the costs herein incurred and have therefor execution."

The appellant in his application for appeal prays for an appeal from the order and judgment of the court heretofore rendered. As the only judgment shown by the record on file in this court is the judgment as above set forth, the matter of defendant's counterclaim is not before us for review. We assume that a judgment was duly rendered by the court on the counterclaim, and that the defendant has not appealed therefrom. However this may be, the matter of the counterclaim is not before us for review and we refrain from including evidence pertinent alone to the counterclaim.

The judgment before us for review is the judgment in favor of the plaintiff. The defendant has duly appealed from this judgment. The defendant makes but one claim of error as follows, to wit:

"Assignment of error: The court erred in giving plaintiff's instructions No. 1 and No. 2 because said instructions, respectively submitting plaintiff's case under primary negligence and the humanitarian doctrine, did so under two inconsistent and irreconcilable theories."

Opinion.

It is to be observed of instruction No. 1 that plaintiff abandoned the charges of failure to warn and failure to slacken speed, contained in the petition. The elements of reasonable lookout, excessive speed, failure to drive at a safe speed, failure to have and keep his car under control, set out in the petition, are retained and hypothesized in the instruction.

It is to be observed that for the jury to follow instruction No. 1, the jury is permitted to find from the evidence that the defendant had not control of the car and find in plaintiff's favor on prime negligence.

It is to be observed further that to follow instruction No. 2, the jury is permitted to find from the same evidence that defendant did have control of his car and find for plaintiff under the humanitarian...