Weathers v. Falstaff Brewing Corp.

• Decision Date: 17 May 1966
• Docket Number: No. 32327,32327
• Citation: 403 S.W.2d 663
• Parties: Herman L. WEATHERS, Plaintiff-Respondent, v. FALSTAFF BREWING CORPORATION, a Corporation, and Clarence Edward Bauer, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 663

403 S.W.2d 663

Herman L. WEATHERS, Plaintiff-Respondent, v. FALSTAFF BREWING CORPORATION, a Corporation, and Clarence

Edward Bauer, Defendants-Appellants.

No. 32327.

St. Louis Court of Appeals, Missouri.

May 17, 1966.

Heneghan, Roberts & Cole, Joel D. Monson, St. Louis, for defendants-appellants.

Samuel A. Goldblatt, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff sought by this action to recover the sum of $10,000 for personal injuries alleged to have been sustained when the car in which he was a passenger collided with one owned by defendant Falstaff Brewing Corporation and driven by its employee, defendant Bauer. Upon a trial to a jury a verdict signed by nine jurors was returned in favor of defendants. Plaintiff thereafter filed his motion for a new trial in due time, which the court sustained on the ground that the verdict was against the weight of the evidence. Defendants' appeal duly followed.

All that appears under the heading of 'Statement of Facts' in defendants' brief is a digest or re sume of the testimony of named witnesses. As our appellate courts have repeatedly pointed out, this is not a compliance with Civil Rule 83.05, V.A.M.R., which provides in paragraph (a) that the appellant's brief shall contain '* * * (2) A fair and concise statement of the facts without argument * * *,' and in paragraph (c) that the '* * * statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * *' Domijan v. Harp, Mo., 340 S.W.2d 728; Swope v. Emerson Elec. Mfg. Co., Mo., 303 S.W.2d 35; Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109. If desired, the statement in narrative form may be followed by a statement of testimony of the witness relevant to the points raised on appeal, Civil Rule 83.05(c), V.A.M.R., but the statement is required. The reasons for observing the rules have often been stated, Ambrose v. M.F.A. Co-Operative Ass'n of St. Elizabeth, Mo., 266 S.W.2d 647; Jacobs v. Stone, Mo., 299 S.W.2d 438, and it may not be amiss to again point out that a failure to comply with them is just grounds for a dismissal of the appeal. Ambrose v. M.F.A. Co-Operative Ass'n of St. Elizabeth, supra; Jacobs v. Stone, supra; Tidwell v. Gulledge, Mo.App., 349 S.W.2d 404. We are cognizant of the fact that such a dismissal is a drastic action, and because of its effect on the appealing litigant and our anxiety to dispose of a case on its merits we have been lenient (perhaps overly so) in our enforcement of the rules. It should not be assumed, however, that counsel may persist in ignoring the rules with impunity or that we will continue to countenance their violation.

The first of defendants' two points is that the plaintiff failed to make a submissible case against the defendants. They take issue with plaintiff as to the standard to be followed in reviewing the evidence in the determination of that question, and contend in their reply brief that we must view the evidence in the light most favorable to defendants since the verdict was in their favor. That is not the law, and the cases of La Fata v. Busalaki, Mo., 291 S.W.2d 151 and Brooks v. St. Louis Public Service Co., Mo., 275 S.W.2d 252, cited in support of their argument do not so hold. The issue in La Fata was whether there was sufficient evidence to justify the giving of an instruction on plaintiff's contributory negligence, and all that the court there held was that in deciding that question it would state the evidence in the light most favorable to defendant, on whose behalf the instruction was given. In Brooks the point for determination was whether there was evidence to support the hypothesis submitted in a sole cause instruction given by the defendant bus company, and the court likewise said that in deciding that issue it would consider the evidence in the light most favorable to defendant. The rule followed in determining whether there was sufficient evidence to justify the giving of an instruction is not applicable, of course, to the manner in which the evidence is to be viewed when a defendant contends that the plaintiff did not make a submissible case. In such a situation the correct rule is that in making that determination we review the evidence from a standpoint favorable to plaintiff, give him the benefit of any part of defendant's evidence favorable to him, and not contrary to his fundamental theory of recovery, give him the benefit of all reasonable inferences from all the evidence, and disregard defendant's evidence unfavorable to him. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Fenneren v. Smith, Mo., 316 S.W.2d 602; Peterson v. Tiona, Mo., 292 S.W.2d 581.

Plaintiff's petition contains eight allegations of primary negligence and one on the humanitarian doctrine, but his sole submission was on the alleged failure of Bauer to keep a proper lookout. We agree with defendants that our inquiry with respect to the sufficiency of the evidence should be limited to the only issue of negligence submitted. Herr v. Ruprecht, Mo., 331 S.W.2d 642; Karr v. Chicago, R.I. & P.R. Co., 341 Mo. 536, 108 S.W.2d 44; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938. Viewing the evidence in the light stated, the jury reasonably could have found the facts to be as stated herein. The collision involved in this litigation occurred on September 25, 1963, about 5:00 P.M., d.s.t., at the intersection of Klemm, a north-south street, with Blaine, an east-west street, in the City of St. Louis. The weather was clear and the paved streets were dry. Plaintiff, employed as a welder at the American Car and Foundry Company plant, had been offered and had accepted a ride home by one Sanders, a fellow-employee, in the latter's 1953 Nash Rambler. Sanders was driving northwardly on Klemm. Defendant Bauer, a sales representative for defendant Falstaff, had made a business call at a tavern at Blaine and Tower Grove, and was driving eastwardly on Blaine, on his way home. He was using a 1963 Chevrolet Impala four door sedan, owned and furnished to him by the brewery. Plaintiff testified, both at the trial and in his deposition (read in part by defendants) that when the front of Sanders' Nash was 5 feet south of the south curb line of Blaine he saw the defendants' Chevrolet, which was then 10 feet west of the west curb line of Klemm. He stated that about 100 feet south of the intersection Sanders had reduced his speed from 25 m.p.h. to 20, at which rate he was traveling as he entered the intersection. Plaintiff estimated the speed of defendants' car at the time he saw it at 35 m.p.h., and testified that he yelled 'Look out' and that the impact occurred immediately thereafter. He stated that he did not see the actual collision of the two vehicles.

The burden of defendants' defense was that a church on raised ground, surrounded by a hedge, located on the southwest corner of the intersection prevented Bauer from seeing far enough south on Klemm to see Sanders' approaching car. Bauer testified that he drove into the intersection at a speed of 20 miles per hour, and that when the front of his car was even with the west curb line of Klemm he looked to his right but could not see farther south than 30 feet because the hedge obstructed his view. He saw no vehicle on Klemm within that distance. He did not actually see Sanders' car, he related, until the front of his Chevrolet had traveled 18 feet, 3 feet past the center line of Klemm, at which time...