Epple v. Western Auto Supply Co.
557 S.W.2d 253
Mo.
1977
Check Treatment

*1 253 in 222.160.5 is contained § from 548.191 § and the time within is no conflict

There may of this state act governor the

which 1, Article IV of proviso the of §

under 222.160, Fur- has ended without action.

§

thermore, that provides 4 of Article IV § appellant custody to the of Kan-

delivery of may denied “on the

sas authorities not be authority the executive of the

ground that

sending affirmatively state has not consent- There is delivery.” to or ordered such no

ed appellant’s to or merit in last

substance

contention. is the case judgment

The reversed and is for review in

remanded accord with

McQueen Wyrick, supra. v.

All concur. EPPLE, Jr.,

Lawrence K. et

al., Respondents,

v.

WESTERN AUTO SUPPLY COMPANY al., Appellants.

et

No. 59683. Louis, Brown, appellants. for Paul St. S. Louis, Kimbrell, Jerome W. Alan G. St. Supreme Missouri, Court of Mexico, respondents. for Seigfried, En Banc. Milholland, Harrisonville, Missou- John C. 14, Nov. 1977. Assn, Attys., amicus curiae. ri of Trial Welliver, Columbia, Warren D. State Companies, amicus curiae. Farm Mut. Ins. Sherman, Babcock, Robert A. Joseph A. Baker, City, Westmo Thomas 0. Kansas Assn., Lawyers amicus curiae. Defense Wade, Nashville, Tenn., John W. amicus curiae. IV, 1, is, pertinent governor sending may disap- of in the of the state

5. Article 222.160 § § “ * * * provided prove custody part, request temporary further for or as follows: the thirty days availability, upon period a of after either his own motion or that there shall be upon prisoner.” receipt by appropriate before motion of the the authorities honored, period request be within which the *2 254

RENDLEN, Judge. present adopt comparative we should not negligence by judicial decision and this principal appeal The issues on of this cause ordered remanded is for retrial in 14, by opinion cause were decided of March with the opinion accordance court’s of 1977, now in reported (Mo. 548 S.W.2d 535 14, March 1977. 1977). banc Because of instructional error judgment the was reversed and the cause MORGAN, J.,C. and HENLEY and remand, remanded for retrial. Prior to FINCH, JJ., concur. however, the case was docketed for further briefing argument and at September, the DONNELLY, J., sep- concurs in result in 1977, session of this court to determine opinion arate filed. comparative negli- whether some form of BARDGETT, J., dissents. gence applicable should be declared to such in Missouri and actions utilized on resub- SEILER, J., dissents in separate dissent- mission of this case in the trial court. ing opinion filed. party urged Neither had consideration of comparative negligence, adoption but its in DONNELLY, Judge, concurring in result. having suggested some form been from my opinion, In the by appel- briefs filed time, time to the court appro- concluded it respondents lants and demonstrate that priate question to consider the in this case. comparative negligence should not be To end that amici briefs were invited. The However, adopted particular in this case. I subject ably by parties, was briefed the as believe this Court should deal with the sub- curiae, well as several array amici and an of ject comparative negligence appro- of in an contrasting plans suggested. The ap- court priate case. preciates by the service rendered all in- only in the result. Accordingly, I concur arguments volved and the briefs and oral immeasurably assisted in the court’s consid- SEILER, dissenting. Judge,

eration of the issue. My present is that we should inclination While we maintain the view expressed in adopt a fair reasonable form of com- and the concurring opinion of Anderson v. Ca- parative negligence I believe the and hill, 742, 528 (Mo. 1975), S.W.2d 749 banc present humanitarian would have case been general principles that negligence, of con- appropriate an purpose, vehicle for the al- tributory negligence concepts and related though possi- it must be conceded that the are court made and may abrogated be or bility sponte by was raised sua the court. changed court, by this we have concluded not to adopt any form of comparative negli- Perhaps present a future case will the gence at this time. subject The is complex endeavor, directly. plaintiff issue a Should variety and takes a of forms in the several injuries for under example, for to recover a states where it is in use. The fact that standard, comparative negligence as a system conversion to such a new involves petition, a negligence second count of a many policy may decisions be the reason court’s of that count would disposition trial why most states adopted which have the appeal permit by the issue to be raised on form, doctrine in some have by done so parties. the legislative action. In this connection we

note during past years that the four the Assembly

General has considered on at least

six occasions proposed acts which included comparative negligence.

some form of The legislative

issue seems suited for action.

Accordingly, we conclude that for the