*1 539 рart ninety-eight as a bounds or otherwise than metes and ridge,” sufficiently but even the evidence a “kind of so acres on and that it was land described in the what land was flooded showed grounds disposed byof we petition. of the demurrer are what Other above. have said carefully contentions made have considered the
We opinion prejudicial there is no error in the are of the shown C., Westhues, judgment of the circuit court is аffirmed. record. sitting; Fitzsimmons, C., concurs. foregoing opinion by Cooley, C., PER adopted CURIAM:—The judges court. All concur. J. Bolt, Appellant. Gabelman v. R. (2d) S. W. 171. Fred Two, 5,
Division March 1935. *2 Clyde appellant. Welch J. Linde for Hackney <& Bogers, & Sullwam, Wolfe, Bell Mosmam, *3 Arthur B. James B. Bogers for Clay respondent. G. Buzará *4 below, WESTHUES, plaintiff against filed suit Respondent, C.
appellant, an Frank employee Company, the Sinclair Oil damages resulting Company defendants, and Sinclair for Oil as personal injuries from in a at the sustained collision automobiles of Brush Creek аnd Rock Hill boulevards in Kansas intersection OR City, No the Sinclair Com- Missouri. service was obtained on pany it case as to was dismissed. At close of favor Frank case in Bonner. the trial court sustained a demurrer R. against Bolt, The proceeded appellant, trial then J. as sole juryA verdict in the sum of plaintiff defendant. returned a for court, overruling $8888.88. The for a motion trial condition required trial, plaintiff $3888.88. a remittitur of new to enter judgment сomplied Plaintiff was entered this condition granted City Court appeal An was to the Kansas $5000. by majority opinion, and remanded Appeals. That reversed judges dissented and asked that case for new trial. One of the The case be this court for final determination. certified to though is, therefore, ap- it had been here the merits the same as on dissent, ground pealed instance. The to this court the first The dis- judges, upon merits of the сase. one judge which the senting opinion point upon was of the review. majority preserved remanded the case had not been (2d) in 68 909. Appeals will be S. W. of the Court of found question place stated, occurrence took As above Brush Creek Creek Rock Hill boulevards. intersection of Brush signals stop street. the intersection is an east west Niear required before enter- stop traffic placed, been ing which strеet Rock was a street and intersection. Hill north south signs. figured thoroughfare stop Three cars was a without traveling riding was south in which accident. ear Hill was at a the time of the accident standstill on Rock and at the north- Creek near short distance north of the north line of Brush defendants, west corner of the intersection. one At the time traveling east in a Brush Creek. Ford car on *5 Hill Rock of point he had a east of the center line accident reached traveling Willys-Knight his ear in contact with Bolt’s where came occurred two ears of latter Rock Hill. The collision north on center quarter and near the intersection within the of the southeast 544
line bumper car, of Brush Creek. The rear fender and of Bolt’s bumper traveling north, which in contact the front was came with of car and Bonner’s car. Bolt’s northwest col- then reeled and were seatеd. plaintiff lided with the Essex in which others injured. great its occupants Essex struck with force and was evidence, stopped defendant at According plaintiff’s Bonner at a stop sign proceeded then across intersection rate eight speed per hour. of from five to miles Plaintiff's witnesses of that when entered the intersection Bolt’s further testified Bonner fifty sixty car was at or feet of the inter- a distance of least south forty fifty a traveling speed section north at of miles rate of about just per hour; passed car in front Bonner’s car after Bolt’s of that of Rock Hill Bonner’s ear crossed the center line Boulevard slacking speed that it veered to the northwest struck without will complete A of case be found Essex. statement more Appeals. in the Court of court sustained a demurrer to the evidence as to
The trial directed the plaintiff’s defendant Bonner at the close of case and jury Appeals, in The Court of its to find verdict his favor. chief make a opinion, plaintiff’s that in did not case held evidence entering jury. they In think Without this we were correct. quote into a conclud approval discussion of the we evidence ing question: part disposing Appeals opinion Court of of this says, city that ordinance “It will be observed Section ‘ right way right proceed shall when two or more mean the approximately the same time.’ vehicles reach such at intersection If out in stopped sign was stop Bonner at the thereafter 80 to 100 feet intersection when Bolt was from south still thereof, way his proceed it would seem that latter could not right asserting he did supposed way, his for the reason that reach the the or- intersection be entitled thereto under time to dinance, that and, thеrefore, plaintiff’s did not show evidence chief time.” guilty negligence at in di assigned trial court the action of the
Appellant as error recting a law to be verdict for concedes the Bonner. of error ordinarily complain case cannot defendant in a tort It is con during committed the trial in favor of codefendant. tended, however, case that under the circumstances in this posi prejudiced by Appellant’s the action of the trial court. in give peremptory tion is fact that the trial court did not only struction but informed at the close of the evi all given such an close of instruction would be dence, until the case given fact not and that the instruction was in admitted fact argued was closed. it was an It is also that since in the victim the accident case that was an innocent effect negligence one or guilty the other of the dеfendants *6 545 jury that the direction was to tell the court’s of negligence canse negligent and that was the party appellant’s the the agreed with Appeals appellant of of the wreck. The Court case. given the peremptory was not until at close of the instruction for Bolt a case undisputed It is that the evidence of defendant made against Bonner. In it consisted of evidence the as substance the when which show that reached intersection tended to traveling at a sign stop Bonner was at the and that Bonner was and twenty-five thirty per hour speed rate of of about or miles (2d) 914 68 S. c. negligently appellant’s ran car. W. l. into [See close of Therefore, had the informed the jury, court (2).] against Bonner evidence, all the evidence offered that there was no r of such action have been and under circumstances would еrro codefendant, prejudicial have to the case the error would been negligence of appellant here, because his main defense was law plaintiff’s injuries. cause a of Bonner was the sole of Such rule authority. justice good right supported by is based Louis, 37 Story People’s 719, v. St. 327 Mo. Motorbus Co. of [See Nafziger Baking (2d) 898, (9, 11); Co., W. 901 328 S. l. c. Barr v. (2d) 423, 563,
Mo. 41 S. W. l. c. 559, (9).] just therefore, go ¥e ac- must, record and determine what tion the with trial сourt took reference to Bonner’s demurrer when such was taken. some between action There was disagreement ad- Respondent filed an counsel as what the record showed. motion
ditional of the record in this court. filed a abstract ground strike from therefor this abstract the files assigning respondent During the oral comply failure of with our rules. argument controversy the case the same arose between cоunsel agreed respective parties to the record and it was reference bill of typewritten between them to transmit to this court the full exceptions "Wewill prepared by reporter. record as the court guide ignore take this record additional typewritten for our it files. abstract the record and motion to strike from the bill his exceptions plaintiff when first rested shows that attorney ease the for Bonner an instruction the nature offered controversy directed verdict his client. After some between hearing jury, at- attorneys and the out of torney for plaintiff permission reopen purpose asked questioning permission granted further certain witness. This plaintiff finally and thereafter his ease. The record then rested following: discloses the requested Gentlemen, Bonner has the defendant “The Court: an evi- pleadings instruction and under and the Plаintiff’s dence, plaintiff is not entitled to recover from the defend- Bonner, ant and the court ‘Given.’ has marked that instruction showing liability any part on the
There in this case is no evidence your Bonner, case it will become so at the close of this of defendant you issues regardless how decide the between duty, your duty to Bolt, it will become case and the defendant no evi- because there is return a verdict for the defendant *7 rеgard- liability any part, his and that is showing whatever on dence entirely plaintiff as the and the defendant less of the issues between under Bolt. That immaterial. You have to determine those will all the evidence. course, all the defendant Bolt ob- To of which “Mr. Linde:
jects excepts. and by “(To ruling the Bolt counsel which court defendant his duly excepts.) excepted then there at the time and still Plaintiff Let the record also show that dismisses “The Court: leaving Company, question now the as to defendant Sinclair Oil sole you finally case, at the end of the between to decide the issues plaintiff Bolt, you which hear- and defendant are to decide after ing all the and the instructions of the court. evidence exception. (To ruling Show our which of the Linde: “Mr. by duly Defendant then and excepted Bolt his counsel there at the ’’ excepts.) time and still instruction read follows: plaintiff’s “The Court that at the close of the instructs according your case, to the law and the evidence verdict be should ” (Given.) Frank Bonner. for the defendant, showing entry follows an that defendant Bolt an in- Then offered plaintiff’s which struction the nature of demurrer to evidence by Thereafter, following was refused the trial court. order appears: 1932,
“THEREUPON!, day, February viz., Thursday, on said 18, day being regular January, 1932, the 33rd of the term same following entry by said court the was made and entered the court: “ ‘Now, again parties, this come the same the same day, jury, by resumed, trial R. cause is defendant J. Bolt separate herein, leave files amended answer and at the close of evidence on plaintiff, behalf of defendant offers a de- evidence, murrer said which said demurrer is the court sus- plaintiff Frank tained as to the said defendant volun- tarily Company, dismisses this suit as to the defendаnt Sinclair Oil ” proceeds and the J. R. Bolt.’ trial as to the defendant his exceptions bill of discloses that defendant Bonner and attorney part took no further in the trial case. At close requested of the Avholecase the court peremptory read the instruction kept Bonner with the be other instructions the case. It must in mind that this instruction read: case, according law and
“At to the close of Frank Bonner.” defendant your be for the evidence verdict should (Italics ours.) clearly court foregoing
From the that the trial record it appears case, return a ver- .plaintiff’s directed the at the close of jury, plaintiff dict in make a case Bonner’s favor because failed to jury. put This action trial court Bonner out of the Attorney interpreted as a defendant. Bolt' so the action re- respondent the court. asked The record disсloses that when attorney objection which open case, appellant’s made thereto part read as follows: “Mb. Well, now, Linde: here the has announced it has closed its case. Why, Mr. Linde— “Mb. Sullivan: objection. Linde (interrupting): my One of Let me finish
“Mb. asked, it, I de- defendants has and as well as understand defendants, murrer sustained, of one of has been de- disappeared longer has fendant and is no in the court room.” *8 against If the failed make a Bonner it to case was the duty give permit of the trial court to the instruction asked and drop This, irrespective Bonner to out of the case as defendant. that
of the fact his eodefendant was less fortunate. If court the trial ruling taking ruling was correct in so and this action how can such a by subsequent happening during become error the of events the jury trial? The could have then and trial court there directed the sign to return and a verdict for Bonner but to it was not error permit the verdict to be returned at the end of the case. Neither postponement returning did such of in the the verdict leave Bonner lays case as a upon argues defendant. much stress this and that Bonner was in until the case the end of the trial. If he was right had he in participate the to the the trial of the case and trial right court had the jury to submit case and the to the authorize against a verdict him. done, that could been after the That not have court had taken by the above, indicated the record seems too action plain argument.
Appellant was of course show, by evidence, entitled that to Bonner was the man at negligence fault and that his was the sole cause of plaintiff’s injuries. Appellant was also entitled have the case jury by submitted to authorizing the instructions a vеrdict in his if jury favor the found from negligence the evidence that Bonner’s was the sole cause of the accident. So far as the record discloses gave appellant the trial court him in- permitted free hand and troduce whatever tending evidence he to exonerate himself and place the blame ap- on Bonner. The jury, court instructed at the pellant’s request, determining that in the respondent issues betweеn appellant they entirely disregard should the the action of court directing fully in a verdict for The Bonner. court also instructed right rights having by jury appellant way the on the of as to of
the required, stop because that Bonner was of reason of the fact entering before sign, bring his car to a standstill intersection. believed jury they if found and Again the instructed that court negligence was the sole cause of negligent such was and that thеy appellant, “not- return a verdict the accident then should your shall withstanding the instruction of the that verdict by instructions, re- in favor said Bonner.” The court its also, be of negligent was quired jury and that such to find that of, injury plaintiff’s negligence to, or was the cause contributed against jury were authorized find Mm. before statement, by at jury made to the court The oral trial case, nothing than a close was more statement au of the instruction and а direction that verdict the substance by jury returned when instruction should be thorized . together closed. This statement statement why taking prejudicial reason this action was not court was rights J., 96; Goyette Louis- p. 94, to the of Bolt. C. sec. v. St. [64 Ry. (2d) 552, l. c. 555 (Mo.), San Francisco Co. S. W. (3).] rulings in trial court its on the admission evidence fully we, rule protected appellant its therefore, instructions assignment against appellant. of error an argument made
Respondent’s the basis assignment part complained error. of reads as follows: I now, trying
“As behind fact that say, Mr. Linde is to hide way Bonner was at and for reason possibly Mr. fault some go case, court heard the his client should but the Scot-free gentle- put you evidence that was in here this case and has told you Mr. who was men, tells in these instructions fault, there, driving eastwardly that Ford across *9 ruling that he let this lawsuit. That is the court’s should be out of you that, pass on the fact whether up and he leaves it to to as to on somebody negligent, negligent. not man was Now, or this other was injured. Mr. The or Gabelman not court tells would have been negligent. you by car was not that the east bound driven Bonner Therefore, negligent in this case. That this man is the driver ruling them the We have all could. We sued court’s here. done we in did not put both. We all the evidence we could. We let said of case. But the court ruled on the evidence out has ” that Bonner was not . at fault. . . argument. objection exceptions No was saved the above made or to object that position right the that he no to to takes had argument the harmony it in of because was the instructions Appeals, opinion, Court of as we learned from the took court. The argument like It in that was con- opinion view. is stated the the agree. sistent with the- court’s we instructiоns. To this cannot argument contrary in our was the instructions highly subject improper. objec- It unwarranted was objection had an by tion and been made thereto overruled prejudicial trial court error would have resulted. The trial court did not rule that Bolt’s evidence not was sufficient to convict Bonner, negligence. contrary On by the trial in court instructions plain language and unmistakable jury submitted the case to the on theory they that could find for on Bolt his evidence that Bonner negligent injuries. party was the responsible plaintiff’s rule, plaintiff’s case, court did at the close that evi- negligence, dence failed to convict Bonner of but that did not au- respondent’s argue thorize counsel to that under all the evidence court object exonerated Bonner from blame. Since did not argument right it when was made he waived whatever question preservеd he had and the for our review.
Appellant’s following assignment brief contains the of error: ruling in stating “The court erred and in jury plain that deposition transcript testimony tiff’s of witness Peterson’s on companion the trial in a case should any way by not be considered in against Bonner.” defendant exceptions The bill of shows that Bonner was not notified of taking deposition. assigned by This was the reason the court ruling against the evidence should not be considered as testimony Bonner. Peterson’s the trial of another case was offered during the purpose impeachment. cross-examination Ob- jection by attorney made, the case which impeaching given against evidence had been dismissed Bon- ner. The court ruled that such evidence should not be considered against Bonner. We have searched the motion for new trial and mentioned, failed pоints wherein either of the were two to^find trouble, hence, they are not here for review. We have taken the however, to read the evidence transcript offered from given and also that witness Peterson another lawsuit. The particles plaintiff’s deposition read from evidence offered were during impeach theory cross-examination him on the he had deposition testified to different state in the of facts from that given on the trial of case. The evidence of Peterson at another impeach trial was A offered to Peterson as comparison a witness. alleged impeaching given evidence with that at the trial any
the two witnesses does not material variance. disclose Had points preserved been for our review error of the trial court say would have been to have declared harmless. We еrror because party always to a impeach lawsuit is entitled to a witness of his *10 adversary by showing that such witness made statements testified or to a state of given facts inconsistent with the evidence at trial
550
adversary
party
need not
been a
this
have
case. To do
of the
contradictory
statement.
the witness made
case wherein
to the
845
(3 Ed.),
Evidence
Cyc.
(d);
2687
Jones on
secs.
847.]
[40
stand, if
ashed, while on the
he
witness
Respondеnt
P.
Dr.
attorney
appellant,
go to
Harold
requested,
to
by
been
in
as
extent of his
being examined
to the
purpose
Kuhn for the
requested and
juries.
he had
so
Respondent answered that
been
a
by Dr.
Dr. Kuhn was not called as
had been examined
Kuhn.
subject of
by
fact was made
comment
appellant
witness
and this
argument
jury.
attorney
during
The ob
by
respondent
his
to
jection
argument
by the
by
this
was overruled
made
to
respond
ruling
extent of
assigned
as error. The
court. This
has
injuries
an
case.
made
ent’s
issue in the
found,
Dr. Kuhn had
point here
verdict was excessive. If
that the
injuries
not
through an
his
were
respondent,
examination of
can
to
it
be reason
respondent’s
prove,
as serious as
evidence tended
ably presumed
Dr.
have
called as witness.
Kuhn would
been
adversary
call a witness who
Commenting
the failure
an
to
proper
possesses knowledge of-
to
was held
facts material
the issue
224,
Co., 323
Krey Packing
this court
banc in
Mo.
en
Bobos v.
(2d)
19
630,
(6).
also,
S. W.
l. c. 634
v.
[See,
Shields
American
(Mo.
&
293
78
Foundry
77,
(1,
Car
Co.
S. W.
l. c.
App.),
2).]
go
question
necessary
it
We do not deem
detail on
into
A
judgment.
respondent
awarded
excessiveness
$8888.88.
requiring
enter
The trial
after
a remit
gave
titur,
judgment
Dr.
respondent
$5000.
The evidence of
Lapp,
respondent,
respondent’s
ribs were
who attended
shows
way
seriously injured.
fractured in
back wаs
Re
such
that his
spondent
was in bed for
three weeks and under
doctor’s
about
nearly
years. During
up
care for
all of
two
this time
respondent
pain
time of the
back where
trial
suffered
his side and
pain,
the ribs
Respondent,
were torn loose.
on account of constant
sleep,
will,
evidence,
suffered
loss of
under
continue
do so. His back was
time
trial.
In view of
normal
ruling
Co.,
our
v. St.
the cases
Zichler
Louis Public Service
(2d)
Co.,
Ry.
654,
Carpenter
Mo.
S. W.
v. Wabash
902,
(2d)
PER foregoing CURIAM:—The Westhues, adopted judges All the court. concur.