Williams v. Kaestner, 30315
| Decision Date | 16 February 1960 |
| Docket Number | No. 30315,30315 |
| Citation | 332 S.W.2d 21 |
| Parties | George M. WILLIAMS (Plaintiff), Respondent, v. Ronald KAESTNER (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Evans & Dixon, John P. Montrey, Elmer V. A. Bayer, St. Louis, for appellant.
Cleo V. Barnhart, Barnhart & Sommers, St. Louis, for respondent.
BRADY, Commissioner.
The collision in evidence in this cause occurred February 14, 1957, between a taxicab owned by respondent and driven by one Warren Daum, and an automobile driven by the appellant. The evidence was that this collision occurred on U. S. Highway 67, Lemay Ferry Road, which at that place runs generally north and south in St. Louis County. Daum had received a call to go to 'Charlie's Bunk House' to pick up a passenger. He drove to that place, located on the west side of the highway, and desiring to head north and being headed south, he entered upon the highway, turning eastwardly and northwardly, making a U turn to the left. The appellant was proceeding northwardly on Lemay Ferry Road and collided with the taxi when it had made the left turn. The evidence on behalf of respondent as to appellant's speed was given by the driver of a car proceeding in the same direction as appellant and whom appellant passed about one-fourth mile back from the scene of the collision. Another witness was riding with him. They both saw the accident. The driver placed appellant's speed at about 80-85 mph when appellant passed him, and his passenger stated that appellant passed them about 200 or 300 feet from where the accident happened, and was then going at a rate of about 80 mph. On cross-examination the passenger said his estimate could vary as much as 5 mph and the driver said he couldn't recall whether or not he had placed the appellant's speed at 50 mph in a statement he gave about a month after the accident. The appellant also passed another car prior to the collision, and a passenger in that car estimated appellant's speed at over 70 mph but not over 90 mph at a point about 400 feet from the place the collision occurred. The driver of the car estimated appellant's speed at between 70 and 80 mph when appellant passed him, at a time when he was about one-fourth to one-half mile from the scene. Respondent's evidence also was that after picking up his passenger, Daum drove up toward the highway until he reached a point about 2 feet west of the west curb, and then stopped and looked left, or northwardly, on the highway for approaching traffic. He let two southbound cars go by, and then, seeing no more, looked south for northbound traffic. Daum could see about one mile to the south, as the highway at that point is flat and level. He saw the headlights of a northbound car about one-fourth mile away (when he later measured, it was about three-tenths of a mile.) He then entered the highway going eastwardly at first and straightening out toward the northbound lane into the northbound lane closest to the center line. No part of his authomobile ever got into the northbound lane next to the shoulder of the highway until after the collision. When he saw the headlights of the car to the south of him, he could tell the car was moving, but never formed any opinion as to how fast it was moving. He started from zero and had accelerated to 30 mph when the impact occurred from the rear of his cab. Daum last saw the lights coming from the south when he had made his swing toward the north, and they had then come one-half of the distance between his cab and where he first saw them He had gone about 200 feet after his entrance into the northbound lane before thimpact took place.
The appellant's evidence tended to show that appellant was proceeding northwardly at a speed in the low 70's or between 70-75 mph. He first saw respondent's taxi when it was at the right 'very edge' of the highway, and just starting to come onto the highway about 300 feet from him. He was then in the outside northbound lane. The taxi entered the highway when appellant's car was about 150-300 ft. away. The taxi angled into both northbound lanes. Appellant applied his brakes as soon as he saw respondent's taxi and swerved from the outer lane to the inner northbound lane to pass Daum on the left. Appellant sounded his horn, but the collision followed.
On July 31, 1957, two actions were filed in the circuit court of the City of St. Louis against the appellant, one by Daum for personal injuries, and one by respondent for property damage in the amount of $2,000. The Daum suit was tried in January, 1958, and resulted in a verdict for Daum, and while the amount of the judgment does not appear in the record, it was agreed by counsel at oral argument that the judgment was for $10,000. This judgment was fully satisfied. The record discloses that Daum's case was submitted to the jury under three separate verdict directing instructions. One was based upon primary negligence for excessive speed; another was based upon primary negligence for failure to keep a vigilant watch and lookout; and the third was based upon humanitarian negligence in failing to slacken speed or in failure to slacken speed and swerve.
On May 1, 1958, the appellant filed his counterclaim in this action for $7,500, for personal injuries. On the 8th day of May, the respondent filed his first amended petition alleging property damages in the amount of $3,005 (amended during trial to $2,905) and more fully setting forth how such a sum was arrived at. On May 23rd, the appellant filed his answer to the amended petition, and on October 8, 1958, respondent filed his amended reply to the appellant's counterclaim in which respondent states:
'For further reply and defense plaintiff states that the cause of action alleged by the defendant in his counterclaim arose out of the transactions and occurrence which were the subject of an action instituted against the defendant by Warren Daum in the St. Louis Circuit Court in the City of St. Louis being cause number 2765-E; that said Warren Daum was the agent of plaintiff for whose actions defendant seeks to hold the plaintiff secondary liable under the respondeat superior doctrine; that the defendant Ronald Kaestner should have asserted his cause of action, which is the subject of his counterclaim herein, in a counterclaim in the previous law suit brought by Warren Daum pursuant to the provisions of Section 509.420 V.A.M.S., 1949, but failed to do so; that the aforesaid St. Louis Circuit Court action, number 2765-E, wherein Warren Daum was plaintiff and Ronald Kaestner was defendant was tried to a conclusion in Division Number 7 of the St. Louis Circuit Court and resulted in a verdict in favor of the plaintiff Warren Daum and against the defenant Ronald Kaestner upon which verdict judgment was entered which is final; that the defendant's cause of action against the person primarily responsible therefor was therefore precluded as a matter of law and therefore the defendant cannot assert the same cause of action by way of a counterclaim against the plaintiff herein who could only be secondary liable therefor.'
When the case came on for trial, before the jury was empanelled and in the trial judge's chambers, the counsel for appellant admitted all the facts pleaded in paragraph 5 of the amended reply except that appellant should have asserted his counterclaim in the Daum action and that the failure to do so, and the judgment in the Daum action, precluded the assertion of that counterclaim in this action. Counsel for respondent moved for dismissal of the counterclaim and the trial court sustained the motion and ordered dismissal. Trial was held on respondent's petition, with the result that the jury unanimously found in favor of appellant. The submission in the instant case was under the humanitarian doctrine by Instruction No. 1 on a disjunctive submission of failure to slacken speed or failure to slacken speed and swerve.
Each of the parties moved for new trial. The respondent's motion was based upon three grounds: that the verdict was against the weight of the evidence; that it was error to fail to sustain respondent's challenges for cause as to two jurors who disclosed on voir dire that they were policyholders with the appellant's liability insuror, and because Instruction No. 3 was erroneous. The appellant's motion for new trial asked for a new trial on the counterclaim only and asserted the dismissal thereof by the court, on respondent's oral motion, was erroneous. The trial court overruled appellant's motion, and sustained respondent's motion for new trial on the basis of error in failing to sustain the respondent's challenge for cause. Appellant perfected his appeal from the court's order granting respondent a new trial on his petition and denying appellant a new trial on his counterclaim. The appellant's position is that the verdict in his favor on respondent's petition should be reinstated, and he should be allowed to try his counterclaim. Respondent contends that the dismissal of the counterclaim should be affirmed and he be allowed the new trial on his petition granted him by the trial court.
This court has jurisdiction, since the counterclaim and the petition are in their nature mutually repugnant and verdicts for each could not be allowed to stand. The amount in dispute thus becomes the largest of the two claims, the $7,500 prayed for in the counterclaim, and that is within the jurisdictional limits of this court. Hamilton Fire Ins. Co. v. Cervantes, Mo.App., 278 S.W.2d 20; Smith v. Rodick, Mo.App., 286 S.W.2d 73.
Between the date of the trial court's ruling on the motion for new trial and the hearing on this appeal, the Supreme Court, in Kendall v. Prudential Ins. Co. of America, Mo., 327 S.W. 2d 174, reversed the decision of the Kansas City Court of Appeals upon which the trial court relied, (see Kendall v. Prudential Ins. Co. of America, Mo.App., 319 S.W.2d 1) and has set at rest the matter of whether or not the two veniremen...
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