Opinion
March 16, 1933.
1. NEW TRIAL: Appeal. A party who recovers judgment may appeal from an order of the trial court granting a new trial. [Sec. 1018, R.S. 1929.]
2. NEW TRIAL: Joint Parties: Defendants. Where plaintiff obtained a verdict for damages and judgment against three defendants, the motion of one defendant for a new trial was sustained and a motion of another defendant for a new trial was overruled and it appealed, the third defendant whose motion for a new trial was overruled might appeal.
3. JUDGMENT: Joint Parties: Defendant. A judgment which does not dispose of the whole case is erroneous, if not void. A judgment against three defendants, where a motion of one defendant for a new trial was sustained and of another overruled, did not dispose of the whole case.
4. JUDGMENT: Appeals. Appeal lies only from a final judgment and the Supreme Court cannot examine or pass upon errors complained of in an appeal from a judgment which is not final in that it does not dispose of the whole case as to all the issues and all the parties.
5. APPEAL AND ERROR: Jurisdiction. A final judgment cannot properly be rendered until after the motion for a new trial or in arrest of judgment is acted on or the time for filing the same has expired; and if a new trial is granted, not until the new trial is had or the case finally disposed of; a judgment rendered before a disposition of a motion for a new trial is merely interlocutory and from it no appeal will lie.
6. APPEAL AND ERROR: Jurisdiction. The Supreme Court has no jurisdiction of an attempted appeal from a judgment for forty-five hundred dollars where no constitutional question was raised except in the motion and arrest of judgment which was not filed within four days after the trial.
Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.
TRANSFERRED TO THE ST. LOUIS COURT OF APPEALS.
Ely Ely for appellants.
(1) The court erred in admitting incompetent, irrelevant and immaterial testimony offered by the plaintiff over the objection and exception of the defendant at the time. Bennett v. Punton Sanitarium Assn., 249 S.W. 666; Powell v. Union Pac. Ry. Co., 164 S.W. 628; Thomas v. Met. St. Ry., 100 S.W. 1121. (2) The court erred in refusing and overruling this defendant's instruction in the nature of a demurrer at the close of the whole case, over its objection and exception at the time. Snyder v. Murray, 17 S.W.2d 643; Miller v. Wilson, 288 S.W. 997; Daneschocky v. Sieben, 193 S.W. 966; De Moss v. Kansas City Rys. Co., 246 S.W. 566; Wren v. Suburban Motor Transfer Co., 241 S.W. 464; Kidd v. Chicago, R.I. P. Ry. Co., 274 S.W. 1079. The facts were not sufficient to permit this case to be submitted to the jury under the humanitarian theory. Bibb v. Grady, 231 S.W. 1022; Grief v. National Lead Co., 274 S.W. 86; Nilson v. Washington Flour Mills, 245 S.W. 206. (3) The court erred in excluding competent, relevant and material testimony offered by the defendant over its objection and exception at the time. Jackson v. Kansas City, 79 S.W. 1174; Francis v. West Plains, 216 S.W. 808. (4) The court erred in giving and reading to the jury each and every instruction offered by the plaintiff and given by the court over the objection and exception of this defendant at the time. Bibb v. Grady, 231 S.W. 1022; Grief v. National Lead Co., 274 S.W. 86; Nilson v. Washington Flour Mills, 245 S.W. 206. (5) The verdict is excessive. Partello v. Mo. Pac. Ry. Co., 117 S.W. 1141; Sallee v. Ry. Co., 12 S.W.2d 481; Young v. St. Paul Ry. Co., 170 S.W. 845. (6) The court erred in that it granted a new trial to defendant city of St. Louis, Missouri, and overruled this defendant's motion for a new trial, over the objection and exception of this defendant at the time. Miller v. United Rys. of St. Louis, 134 S.W. 1045, 155 Mo. App. 528; Knox v. M.K. T. Ry. Co., 203 S.W. 225, 199 Mo. App. 64; Beane v. St. Joseph, 240 S.W. 840, 211 Mo. App. 200; Neal v. Curtis Co. Mfg. Co., 41 S.W.2d 543; Mulderig v. Railroad Co., 94 S.W. 801, 116 Mo. App. 655; Holborn v. Naughton, 60 Mo. App. 100; Albright v. McTigue, 49 F. 817. (7) By overruling this defendant's motion for a new trial and at the same time sustaining the motion of the defendant city of St. Louis and in rendering judgment against this defendant and in favor of the defendant city of St. Louis, the court erred in depriving this defendant of its rights under Article II, Section 30, of the Constitution of the State of Missouri. Cunningham v. Franke, 18 S.W.2d 106; Glass Co. v. Peper, 70 S.W. 910; Ford v. Ford, 24 S.W.2d 990; R.S. 1929, sec. 1070; Meierhoffer v. Hansell, 243 S.W. 131. (8) By overruling this defendant's motion for a new trial and at the same time sustaining the motion of the defendant city of St. Louis and in rendering judgment against this defendant and in favor of the defendant city of of St. Louis, the court erred in depriving this defendant of its rights under Article V of the Amendments to the Constitution of the United States. State v. Julow, 31 S.W. 781; Ex parte Nelson, 157 S.W. 794.
Strubinger Strubinger and Frank Coffman for respondent.
(1) Even if the court had committed error (which it did not) in failing to strike Dr. Murray's answer to the hypothetical question, appellant cannot complain, because its motion for a new trial contained no such assignment of error and same cannot now be raised on appeal. Salmon v. Railroad, 271 Mo. 402. (a) Appellant not having objected to the question the incompetency, if any, was waived. Robertson v. Construction Co., 294 S.W. 428. (b) And having waived such incompetency (if any), the motion to strike was too late. State v. Marcks, 140 Mo. 669; Mann v. Balfour, 187 Mo. 304; Birmingham v. Railroad, 266 Mo. 71; Thomas v. Railway Co., 125 Mo. App. 135. (c) The facts which appellant contended should have been included in the hypothetical question were not essential or necessary for the doctor's opinion. (2) The court did not err in overruling appellant's demurrer offered at the close of the whole case. (a) Appellant cannot escape liability to plaintiff by showing merely the negligence of Geraci. Taylor v. Railway, 137 Mo. 363; Neal v. Curtis Mfg. Co., 41 S.W.2d 550. (b) Ordinarily proximate cause is a question for the jury and is not a question of science or of legal knowledge. Kidd v. Railroad, 274 S.W. 1087; Gilman v. Fleming, 265 S.W. 104. (c) Plaintiff is not required to show with absolute certainty what caused the accident where he shows the dangerous surroundings and circumstances from which the jury may infer the cause. Berkbigler v. Milling Co., 275 S.W. 599; Smith v. Mederacke, 259 S.W. 83; Lenz v. Seibert, 259 S.W. 829; Stanley v. Helm, 223 S.W. 125. (3) No error was committed by submitting the case to the jury under the last-chance doctrine, because: (a) Plaintiff made a last-chance case against this appellant whether its driver saw the Geraci truck in a position of peril or not. Griggs v. Railways, 228 S.W. 511. (b) Plaintiff counted on general negligence. Any specific negligence was provable. He also proved a case of primary negligence. By asking Instruction 1 he imposed upon himself an unnecessary burden, of which this appellant cannot complain. Wolfe v. Pane, 241 S.W. 919; Troutman v. Cotton Oil Co., 224 S.W. 1016; Barker v. Lumber Co., 217 S.W. 588; Rigg v. Railroad, 212 S.W. 878; Chambers v. Hines, 233 S.W. 949. (c) And it will be presumed that the jury's verdict was based on the negligence pleaded and proved. Spencer v. Railways, 297 S.W. 353. (4) Appellant cannot complain of the trial court's action in sustaining the city's motion for a new trial, because: (a) If the three defendants were joint tortfeasors, they would be as to the plaintiff only. They were not wrongdoers among themselves. The city was primarily liable to plaintiff, if it failed to furnish him a safe place to work, but that would not give appellant the right to demand contribution. It is the other way. If the city had paid the judgment it could have demanded all from appellant. Because, as between the city and appellant, the liability was primary and secondary. Killroy v. St. Louis, 242 Mo. 84; Telephone Co. v. City, 268 Mo. 497; City v. Malo, 217 S.W. 629; Applebee v. Ross, 48 S.W.2d 902. (b) Even if it were an error of which the appellant could complain, this court could only remand the case for reinstatement of the judgment against the city, which could not affect the plaintiff's right as against this appellant. Wiggin v. City, 135 Mo. 570; Killroy v. City, 242 Mo. 84.
This is a suit for personal injuries and illustrates the difficulties in which a plaintiff is likely to become involved when suing and insisting on a judgment for damages against two or more joint tort-feasors. In this case the plaintiff brought his suit for $15,000 damages against three defendants, the Frank L. Schaab Stove and Furniture Company, a business corporation, the city of St. Louis, a municipal corporation, and Gustav Geraci, an individual, charging them with joint and several negligence producing or contributing to his personal injuries. The petition specified the acts of negligence of which each was alleged to be guilty. Each of the defendants filed a separate answer denying negligence and liability, and each defended by separate attorneys. The case was tried to a jury and resulted in the plaintiff recovering a verdict for $4,500 against each and all the defendants. Thereupon each defendant filed its separate motion for new trial alleging divers and somewhat different errors. The trial court, or probably the clerk without being so directed, without waiting for any ruling on the motions for new trial, entered of record a judgment in plaintiff's favor for the amount of the verdict against the three defendants. The trial court, on considering these motions for new trial severally, overruled the motion of the defendant Stove and Furniture Company and of the individual defendant Geraci, but sustained the motion of the city of St. Louis and granted it a new trial. The effect of sustaining this motion for new trial was to annul the judgment as against the city of St. Louis, and, as we shall see, the effect should have been to prevent any judgment being rendered on the verdict until another trial was had against the City or the case disposed of in some way as to such defendant. [1, 2] The plaintiff, by force of our statute, Section 1018, Revised Statutes 1929, had a right to appeal from the order granting the City a new trial, which he did do, or could await without prejudice a final judgment disposing of the entire case and then appeal.
As stated, the plaintiff took an appeal from the order sustaining the motion of the City for a new trial, but that is not the appeal we are now considering. That appeal has been abandoned and dismissed by plaintiff in this court. The appeal which we are considering is by defendant Schaab Stove and Furniture Company, which company, treating the judgment entered on the verdict against all three defendants as a final judgment against it (its motion for new trial having been overruled), took and was granted an appeal to this court. The other defendant Geraci, whose motion for new trial was also overruled, did not appeal, but, as we shall see, he may yet do so.
As we have stated, the only judgment of record in this case is one against all three defendants for the amount of the verdict entered before the motions for new trial were acted on or disposed of When the court granted a new trial to the defendant city of St. Louis, that of necessity annulled the judgment as to the City and left the judgment as one not disposing of the case as to that defendant. It is yet pending. This defendant is therefore correct in urging that this judgment, if regarded as a final judgment against the other two defendants, does not finally dispose of the case as against the defendant City since it was granted a new trial, and a final judgment is erroneous, if not void, which does not dispose of the whole case as to all the parties. [Sec. 1070, R.S. 1929; Baker v. St. Louis, 189 Mo. 375, 378, 88 S.W. 74; Rock Island Implement Co. v. Marr, 168 Mo. 252, 67 S.W. 586; Pittsburg Plate Glass Co. v. Peper, 96 Mo. App. 595, 70 S.W. 910; Costello v. Kansas City, 209 Mo. App. 155, 161, 232 S.W. 165; Holland v. Marshall (Mo. App.), 181 S.W. 124.]
The contention of the appealing defendant, Schaab Stove and Furniture Company, does not, however, lead to the result it contends for in having this court reverse and remand the case for new trial as to it on account of that and other errors complained of, but rather cuts from under it the basis of its own appeal and makes it impossible for us to examine or pass on the other errors complained of. This is true for the reason that an appeal (other than one from the order granting a new trial to defendant City, which has been abandoned here) only lies from a final judgment, and a final judgment is one which disposes of the whole case as to all the parties. [Deck v. Wright, 135 Mo. App. 536, 539, 116 S.W. 31.] If, as this defendant contends, the judgment entered against the defendants before the motions for new trial were acted on is fatally defective because, on sustaining the City's motion for new trial, it left the case still pending and undisposed of as to the defendant City, then it is not a final judgment from which an appeal will lie.
This court has frequently and consistently ruled not only that there can be only one final judgment in a case (Russell v. Railroad, 154 Mo. 428, 55 S.W. 454; Seay v. Sanders, 88 Mo. App. 478), which must dispose of all the issues and all the parties, but also that such final judgment cannot properly be, and in legal contemplation never is, rendered or entered until after the motion for new trial or in arrest of judgment is acted on or the time for filing same expired; and if a new trial is granted, not till the new trial is had or the case finally disposed of. [Holland v. Marshall (Mo. App.), 181 S.W. 124; Scott v. Scott, 44 Mo. App. 600; Cramer v. Barmon, 193 Mo. 327, 91 S.W. 1038.] In legal contemplation the date of the judgment is the date when the motion for new trial is overruled. Walter v. Scofield, 167 Mo. 537, 67 S.W. 276; Scott v. Realty Co., 241 Mo. 112, 122, 145 S.W. 48, where it is said: "In theory the judgment follows the order overruling the motion, though in practice it precedes it." And if such motion is granted the case is left pending and no final judgment is entered till the new trial is had or some equivalent action taken. If a judgment final in form is entered without awaiting the filing or disposal of the motion for new trial or in arrest of judgment, such judgment is in fact merely interlocutory, from which no appeal will lie. [Costello v. Kansas City, 209 Mo. App. 155, 232 S.W. 165.]
We cannot overlook the point that as the judgment attempted to be appealed from is for only $4,500, this court has no appellate jurisdiction. It is suggested that a constitutional question is raised, but we find that no constitutional question is even suggested except in the motion in arrest of judgment, which was not filed as required by statute within four days after the trial. [Sec. 1005, R.S. 1929.] That is too late and any matter so raised cannot be considered. [State ex rel. Waggoner v. Lichtman, 184 Mo. App. 225, 227, 168 S.W. 367; Schwettman v. Sander (Mo. App.), 7 S.W.2d 301.] However, there is no constitutional question in the case and the amount in controversy, $4,500, places the jurisdiction on appeal in the Court of Appeals.
It is therefore ordered that this cause be transferred to the St. Louis Court of Appeals. Ferguson and Hyde, CC., concur.
The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All of the judges concur, except Hays, J., not voting, because not a member of the court at the time cause was submitted.