89 S.W.2d 659 | Mo. | 1936
Lead Opinion
Action on plaintiff's petition and defendant's counterclaim for damages arising out of a collision between automobiles owned by plaintiff and defendant. The jury returned a $500 verdict for plaintiff and a $500 verdict for defendant. The trial court, upon motion, granted plaintiff a new trial for error in giving defendant's Instruction No. 5, submitting defendant's counterclaim on the "humanitarian" or "last chance" doctrine.
[1] Defendant assigns error in the sustaining of said motion on the ground said instruction was proper and maintains he is entitled to the reinstatement of his judgment against plaintiff. Plaintiff contends the instruction was improper and assigns further error on the part of the trial court in informing the jury that plaintiff had withdrawn his claim for damage to his car, placed at $1056.30 in the petition. Our review of the issues are thus limited under Section 1060, Revised Statutes 1929 (Mo. Stat. Ann., p. 1341), and our Rule 18.
This court is one of limited appellate jurisdiction [Stuart v. Stuart,
[2] However, appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted. [Little River Drainage Dist. v. Houck (en banc),
[3] Plaintiff's petition was in two counts — the first for personal injuries placed at $10,000, and the second for damages to his automobile. Plaintiff's motion for new trial assigned as one of the grounds therefor that the damages assessed in favor of plaintiff were inadequate. That issue has neither been briefed nor argued here.
Speaking to a constitutional issue, this court, en banc, through GRAVES, J., in Little River Drainage Dist. v. Houck, supra, held: "Before the jurisdiction can be divested it must appear to this court (1) that the constitutional question is merely colorable, or (2) that, although at one time substantial, it has been previously passed upon by this court, and is therefore no longer a live question." And further: "Appellant does not brief nor urge his constitutional point in the brief here. From that we can, and do, conclude that his *229
alleged constitutional question is merely colorable and not substantial." [Reference to the original opinion discloses that the word "not" between the words "and" and "substantial" has been omitted from the official publication (282 Mo. l.c. 461).] "By this we pass upon the constitutional question, and find it without substance, and by reason of that fact transfer the cause, but do not agree that either party can by either acts of commission or omission waive our jurisdiction." That case overruled the reasoning in State ex rel. Crow v. Carothers, 214 S.W. 857, and Scott v. Dickinson, 217 S.W. 270, indicating "that the mere abandonment of the constitutional question in this court (although a live one when our jurisdiction obtained) would transfer the case to the Court of Appeals." Notwithstanding statements somewhat similar to the expressions used in the State ex rel. Crow and Scott cases, supra, are to be found in divisional opinions subsequent to the Little River Drainage District case (Cooper County Bank v. Bank of Bunceton,
In Vanderberg v. Kansas City, Mo., Gas Co.,
Under the authorities supra any inadequacy of plaintiff's damages is not presented for review; and from counsel's failure to reason *230 said issue here, we may, and do, conclude it to be no issue to reason — an issue of color only and not of substance — and insufficient to vest appellate jurisdiction in this court.
The cause is transferred to the Kansas City Court of Appeals.Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.