269 S.W.2d 161 | Mo. Ct. App. | 1954
This is an original proceeding in prohibition wherein relator, Roy Day, defendant in the case of Lovegreen v. Day, now pending in the Hannibal Court of Common Pleas before respondent, Honorable Roy B. Meri-wether, Judge of the 10th Judicial Circuit, seeks to have respondent prohibited from entering judgment in conformity with a directed verdict for Lovegreen on relator’s counterclaim which, at the trial of the case, respondent gave to the jury at the close of all of the evidence, but which the jury failed to follow.
Relator not having denied the aver-ments of the return, but having filed a motion for judgment on the pleadings, we take as true the undenied facts well pleaded in the petition and return, State ex rel. Drainage Dist. No. 8 of Pemiscot County v. Duncan, 334 Mo. 733, 68 S.W.2d 679, from which we learn the following: Lovegreen sued Day for personal injuries and property damage arising out of .a collision between two automobiles, one of which was driven by Day and the other of which was driven by Lovegreen. Lovegreen in his petition sought to recover damages from Day on account of the latter’s negligence in several respects. Day by his answer to the petition denied the charges of negligence leveled at him, and alleged several respects in which Lovegreen was guilty of contributory negligence. Day also filed a counterclaim in
We have determined that in entering the contemplated judgment respondent would be acting in excess of his jurisdiction, in view of the state of the record.
This case involves a “defensive” counterclaim. The proof .of plaintiff’s, claims under his petition would disprove the defense of Day and disprove his counterclaim. Contrariwise, the proof of Day’s claims under his counterclaim would • disprove plaintiff’s claims. The petition and counterclaim are intermingled, inseparable, and “inextricably bound up and interwoven” in such a manner that they must be tried together and cannot be tried piecemeal. Any attempt to separate them and settle the issues on the counterclaim by a directed verdict in one trial, and submit the issues on the petition to a different jury at a subsequent trial would be to invite inconsistent verdicts, require the impossible in the admission and exclusion of evidence, set the stage for different evidence on amended pleadings, and inevitably result in injustice. See Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, and cases cited. In the case of claim and defensive counterclaim, both based upon negligence and both arising out of the same automobile collision, the declaration of a mistrial on any issue of negligence remaining after a previously directed verdict on other issues of .negligence effects a mistrial as to all issues of negligence in the case, and operates to set aside the ruling on the motion for a directed verdict. To enter judgment now in accordance with the court’s direction to the jury, in the wake of the declaration of a mistrial, would be to act in excess of the jurisdiction of the court, and in contravention óf the orderly processes of law.
We have not overlooked the fact that in the instant case a release was pleaded and that there was no pleading' in avoidance of the release. And we: have noted the suggestions in respondent’s brief that the action of the trial court was based upon the fact that at the close of the evidence the release remained unimpeached. The difficulty lies in the fact that these facts do not appear in the record before us. The motion for a directed verdict and the. instruction directing the verdict for Love-green on Day’s counterclaim were both gen- ' eral. There was no effort to limit the .scope of the trial court’s ruling to the effect of the release on Day’s counterclaim. Respondent in his return alleges that he sustained the motion for a directed verdict for the reason that “under the pleadings, the law and the evidence theretofore adduced in said cause the defendant Roy Day was not entitled as a matter of law and under any view, of the evidence to recover judgment against the plaintiff Elmer D. Lovegreen . upon the cause of action and counterclaim of said Roy Day.” ' (Italics ours.) ' So far as the record discloses,- therefore, respondent was directing the verdict upon all.issues of negligence which were or could have been litigated on the counterclaim, and was not undertaking, to rule on the limited issue of the effect of the release. . ,
The preliminary rule should be made absolute.
PER CURIAM.■
The foregoing opinion of HOUSER, C., is adopted as the opinion of the Court.
It is, accordingly, ordered that-the preliminary rule be made absolute.