512 S.W.2d 423 | Mo. Ct. App. | 1974
Plaintiffs appeal from the trial court’s action in sustaining the motions to dismiss of defendants Herlocker and Crites.
Plaintiffs’ Amended Petition in the trial court alléges that an accident occurred on Interstate 44 between the vehicles driven by defendant Herlocker and defendant Crites, resulting from the negligence of both drivers. Shortly thereafter, plaintiff was driving along the north service road of the highway and noticed the accident. He parked his car, climbed a fence separating the two roads, and went to offer aid. Recognizing that medical attention was required, he went back over the fence and asked a traffic watchman on duty nearby to call an ambulance. Plaintiff then returned to the scene of the accident until the ambulance arrived. He thereupon returned to the service road where he was struck by a car driven by defendant Essel-man, who was observing the confusion at the scene of the accident.
Plaintiff sued Esselman, and later joined Herlocker and Crites as parties defendant. The latter two then filed motions to dimiss for failure to state a cause of action which were sustained by the Court.
While none of the parties has raised the issue, we are first obliged to determine whether the order appealed from is a final judgment. Beuttenmuller v. Vess Bottling Company of St. Louis, 395 S.W.2d 204 (Mo.1965) [1], Separate trials were not ordered and the order appealed from was not designated as final by the trial court. Rule 81.06, V.A.M.R. The record does not disclose that any disposition of the plaintiff’s case against Esselman has been made. The order appealed from does not dispose of all the parties and all the issues and is not a final judgment for purposes of appeal within the meaning of Rule 74.01. Cooper v. Barr, 413 S.W.2d 219 (Mo.1967) ; State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487; S. S. Kresge v. Shankman, 194 S.W.2d 716 (Mo.App.1946). Appeal dismissed.
