Collins v. LeahyCollins v. Leahy
*1 purpose of substantially false for impression an used create is the conduct defend- gravamen of this case deception. readily situation perceive unfair. We can ants made sale which sold premises to be would a lease on the the announcement of where be might foreclosure sale properly made at a appropriate and deciding bidding. We are increase, decrease, rather than used under the circum- only of the defendants this case the conduct this sale unfair. results here involved made stances and may not to stand. the sale be allowed view of conclusion remanded directions is reversed the cause set sale and cancel the trustee’s deed aside the foreclosure defendant Brandon. All concur.
Verlyn Grigg infant, Collins, her next Collins, Ethelrine Leahy. friend, Appellant, John S. W. 609. January One,
Division 1941. *2 appellant. for Everett Hullverson respondent. for Leahy, <&Meeker Wm. Walther O’Merin resulting to injuries $20,000 personal for BRADLEY, for C. Action automobile, Louis, by defendant’s by being struck At the chauffeur. Compton, his colored Ernest at the time driven given to case plaintiff’s close involuntary thereupon nonsuit took Thereafter, motion to set leave to set aside. move to overruled, third appealed. This is the aside she Leahy (Mo. v. appellate court. Collins this cause be in an [See Leahy, (2d) App.), 102 S. W. and Collins in favor W. After the 874.] *3 a court, Compton was made by reversed and the cause remanded this cause to him before the party dismissal was made but as again tried. the for defendant was based on to make submissible theory, understand, did a plaintiff as that not we Compton was on a mission question as to whether issue the on defendant at was struck. the speed, negligence alleged, petition, was in an amended excessive swerve, to warn, down, stop or
negligent to slow or or failure to near side, to drive as keep proper ahead to failure watch the doctrine. right curb, and humanitarian practicable as to the hand the contributory general denial, plea a Defendant answered and a negligence. that,
Plaintiff’s case is bottomed contention at on the the time of injury, Compton was on way College, his to Chaminade County, get Louis to defendant’s son who was a student at this college. length appeal The evidence was considered at the on first court, following language (125 to and the used S. W.
882-3) : “Upon map (of Louis) examination of it the Greater St. nigh inconceivable, is well ready or at least difficult- explanation, could, Compton how have plaintiff, at the time the struck automobile ' College. shown, been en route . Enough to Chaminade . . is think, probability to indicate a reasonable that can adduce evidence, other and further trial, bearing not in record the of this upon the essential elements of his of action. cause Whether a full presentation evidence, the retrial, available on a would make out a ’ ’ submissible case we cannot of now course determine. says
In the brief plaintiff that the trial only court “could have (giving arrived at decision peremptory direction) its the by com- disregarding pletely plaintiff’s all of the evidence speculating might in as to what order to evidence sustain the (about This demurrer as the trial did. . . . statement court evidently upon the framework in map) Supreme opinion Court sustaining the demurrer ruling in which the trial court its below based of this trial In the plaintiff’s to the case. the close of evidence any map in (the trial) yet introduced last not been ease there had otherwise, or any route, purported evidence which direct to show there held that third trial but in this the court jury.” yet enough not evidence to submit to evidence trial, his but present was not at the last trial, first by plaintiff prior was read from deposition taken a the record of the exceptions from bill of the abstract of made, under showing proper trial. was not Defendant contends that a Ann., 1714, 1780, pp. Secs. R. Mo. Stat. in evidence evidence authorize admission that say going detail, it is sufficient sources stated. Without into stated, showing we think From the was made. sources sufficient whether he Compton’s evidence, question as pertinent on the may be injury,, mission for at time defendant “My Compton. stated, name Ernest composite, in the follows: as 1225a, Vandeventer, North plaintiff’s injury I At the time of resided lives Leahy, who Louis, St. I chauffeur for Mr. and at that time was at 4944 had been his chauffeur Boulevard, Lindell Louis. I St. Leahy’s year was Mr. immediately prior plaintiff’s injury. It The acci driving car I it at the time. and was struck Finney o’clock dent Avenue at about happened in 3700 block on General gone the afternoon. I to the had from defendant’s house Avenue, get tire Washington two Company Channing Tire Company Tire (for shown). From General covers whom is not *4 Louis Denny road, College, I headed out on west to Chaminade going I when County, get Leahy’s Mr. That is was son. where Company, going Tire happened. this accident from the General Avenue, Washington Avenue, I Grand and drove west on north on my Finney. permitted to use the car own turned west on I was not my duty purposes. Leahy town, but it was Mr. Mrs. were out of and go obey (in home) told me to the nurse defendant’s and she after (italics ours). the son” wit- of The trial had before it the evidence court also things, he among ness, Kleinecke, testified, who other that Earle him driving passed Finney, Compton and that was his car west on injured; that point plaintiff was short east where distance Compton negro were in the seat that time there two women Compton kissing of women. Compton and one these that saw he plaintiff any him when denied was in the car with that one about, fifty feet after car in stopped struck. that he He testified and car- got picked up struck; out, back, he went that 137 ear, back got ried lier to the and that negro when he two ear standing there,” Avomen “got “were and he that those two Avomen (rear of get ear) in there seat got and hold her until.I hospital.” map not in trial, plaintiff: Avas evidencie at the last and
contends the trial not, that court could and that consider we cannot determining it in Compton was, where with reference to defendant’s and plaintiff’s injury. home Chaminade at the On hand, other defendant map part contends that since the was a prior may record of appeal properly to this court it con sidered, although not introduced the trial which comes the present appeal. Defendant’s contention based that on the rule judicial Avewill take of our own notice records. may
If properly map, consider this Aveascertain that Chaminade College is home; about six miles west of defendant’s that the General Tire.Company, went, leaving Avhere after defendant’s home, is twelve blocks east and two blocks north of defendant’s home; place plaintiff’s injury that ten blocks about east home, four or blocks five north of defendant’s and about six plus miles ten blocks east four or five blocks north of Chaminade College, and about two and half blocks from home. that, though
Defendant further properly contends even we cannot we, consider map, nevertheless, judicial can and should take notice of the location streets concerned and their relation to run, each other and the they Avhieh and the location of College, citing Stealey City, 400, v. Kansas 179 Mo. 407, 599; 78 W. Ruth, S. State v. 14 App. 226; Mo. v. Fitz State porter, 282; 16 App. Roach, Mo. App. 413; Laughter State v. 64 Mo. McLain, & v. 280, Fisher 229 Fed. jurisdictions. and cases from other map, Compton’s If the prior plaintiff’s injury, movements way his get statement that son, he Avas his defendant’s he eliminated, what said about prima nurse be made a case, facie showing and this because aon that Compton was defend regularly employed chauffeur, driving ant’s and that he Avas defend ant’s car at the time presumption was struck raised the Compton Avas, time, that at the employment, within the course of his is, Holmes, mission for defendant. [Guthrie 854; Mo. 198 W. Steinbruegge S. ex rel. al., State v. Hostetter et 802; Mo. 335 W. (2d) Dairy Co., Ross v. St. Louis (2d), 717, 98 S. W. l. may judicially c. if But Ave 721.] map know what the home, shows as to the location concerned, etc., map part *5 the streets because the is a of record the in prior appeal court, may the or if judicially to we the know home, relative location of concerned, the streets and independent map, contends, of the as defendant the presumption destroyed nothing would be and would left be time, the being, on the issue
support submission of be it prior appeal, unless defendant, held on the as we mission for have omitted italicized, supra. We Compton’s conclusions by the excluded properly conclusion because one evidence of (City may be a considered situations conclusion court. In some 942, 939, c. 184 W. l. (Mo. App.), S. McCully Co. St. Louis v. Const. conclusions where such cited), but ease and we no cases there any probative value. considered as here have been court appeal to this prior record of the map part The the is a judicial records, it we take of our own and of part and is therefore al., v. Chiles et (W. notice A. Ross Construction Co. cited), and addition l. c. and cases there in (2d) 130 W. S. remanded, opinion, appears prior from our this, cause was as the could, strengthen case, her if give plaintiff opportunity an she Compton, or not time of on issue of whether did not do. injury, for and this was on mission she judicial can necessary whether we take will not be It determine etc., streets, defendant contends. notice as dismissal, overruling after the motion to The entered involuntary nonsuit, it so aside the should affirmed and set Hyde Dalton, 0(7., concur. ordered. foregoing opinion by C.,
PER CURIAM: The Bradley, All opinion judges court. adopted as the concur. Rehearing. On Motion for BRADLEY, opinion cause, stated that the C. In we on give appeal here, was remanded "to opportunity case, could, if strenthen she the issue of whether or not Compton, plaintiff’s injury, at the time of was on a mission for de fendant, (this prior (125 did not do.” opinion she 883) enough W. stated that was shown to indicate a probability produce reasonable could sufficient evidence question mentioned, to make a on the case submissible such remanding chapter the cause. sole reason could have then, but, justice, been closed in the interest of re the cause was give plaintiff manded a chance to make out her case if she could. Counsel, however, made strengthen no effort to the case on the court, issue, mission and the trial in view of situation, the whole justified giving was' direction. rehearing should be motion and is overruled. same
Hyde Dalton, GC., concur. foregoing PER opinion Bradley, C., CURIAM: -The is adopted opinion as the judges the court. All concur.