Opinion
No. 28291.
February 19, 1952. Rehearing Denied March 14, 1952.
Henry Balkenbush, Linn, James Buffington, Mexico, and E. E. Thompson, F. L. Thompson, and Sam Mandell, all of Kansas City, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel, for appellants.
Allen Woolsey and Smith Williams, all of Springfield, for respondents.
This is a suit for damages growing out of a collision which occurred on Highway 66 at a point about 40 miles southwest of St. Louis, Missouri, involving three trucks. The view we have taken of the case makes a detailed statement of the facts unnecessary. It is sufficient to briefly state the events immediately preceding the collision.
Defendant Dill was driving a tractor-trailer owned by defendant Grellner. Shortly before the occurrence in question he stopped at a filling station. Just after he had again driven on to the highway his vehicle came to an abrupt stop. Upon investigation he discovered that a truck driven by defendant Borgmeyer had run into the rear of his trailer, damaging his brakes in such a way that they had locked. These two defendants proceeded to obtain flares from the tool box of the trailer operated by Dill, but before they were set out the truck owned by plaintiff, Sur-Way Lines, Inc., and operated by plaintiff Nickels, crashed into the rear of the Borgmeyer truck.
In due time plaintiffs instituted this suit, in which plaintiff Nickels sought a recovery of $15,000 for personal injuries and plaintiff Sur-Way Lines prayed for a judgment of $7111.90 for damages to its tractor-trailer and load. Defendant Grellner, in addition to filing an answer, counterclaimed for a $1,000 judgment against both plaintiffs for damage to his equipment. Defendant Borgmeyer likewise filed a counterclaim for damages in the sum of $3,000.
A jury trial resulted in a verdict and judgment for both plaintiffs against all the defendants, the recovery of plaintiff Nickels being for $2500 and of plaintiff Sur-Way Lines in the sum of $2650. The finding was against defendants Grellner and Borgmeyer on their respective counterclaims.
The defendants have duly appealed. The relief they seek in this court is clearly stated in the following excerpt from the conclusion of their brief, "For these reasons we respectfully urge that plaintiffs' judgments below be reversed outright and that the judgments against defendants Grellner and Borgmeyer on their counterclaims be set aside because of the errors in the instructions, and that this cause be remanded for new trial of their counterclaims."
At the outset, we are confronted with the question of the jurisdiction of this court as determined on a monetary basis. If the "amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars" the Supreme Court has exclusive jurisdiction. If not, the case is properly before us. Art. V, Sections 3, 13, Constitution, 1945, 2 Vernon's Ann.Mo. Statutes, pages 31, 264. The amount in dispute is the actual amount in controversy at the time of appeal, subject to determination by the appellate court. While not always so, this is generally the amount of the judgment if one has been obtained or the amount prayed for in the pleading if judgment has been denied the appellant. Where defendant has filed a counterclaim and the judgment is for plaintiff on his petition and against defendant on his counterclaim the jurisdictional amount on defendants' appeal is, in some cases at least, the sum total of the plaintiff's judgment and the amount prayed for in defendants' counterclaim. Dawson v. Scott, 330 Mo. 185, 49 S.W.2d 87.
It seems clear that in this case for the purpose of ascertaining the jurisdictional amount the judgments of plaintiffs should be added together and likewise the amounts prayed for in the counterclaims of defendants should be totaled. City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726; Kitchen v. City of Clinton, 320 Mo. 569, 8 S.W.2d 602, and Aufderheide v. Polar Wave Ice Fuel Co., 319 Mo. 337, 4 S.W.2d 776. The case therefore involves judgments for plaintiffs totaling $5150 and counterclaims amounting to $4,000. The more troublesome question for our determination is whether we should go a step further and total the amount of the judgments and counterclaims, thus arriving at the sum of $9150, which would place the jurisdiction of this appeal in the Supreme Court.
The prohibition case of State ex rel. Federal Lead Co., v. Reynolds, 245 Mo. 698, 151 S.W. 85, determining the question of appellate jurisdiction of an accounting suit is of interest. It appears that the case involved a petition and counterclaim and that the referee recommended a judgment for defendant in the sum of $2656.68. Plaintiff filed exceptions which were sustained and the trial court entered a judgment for plaintiff in the amount of $6817.48. The Supreme Court held that the Court of Appeals did not have jurisdiction of defendant's appeal, since he was complaining of the error of the trial court in setting aside the recommendation of the referee that he receive judgment for $2656.68 and in granting the plaintiff a judgment for $6817.48. Since defendant sought to cut away plaintiff's judgment and re-establish the finding of the referee the jurisdictional amount was said to be the total of the two items.
Dawson v. Scott, supra, also appears to be in point. There, plaintiff obtained a judgment on a mechanic's lien claim for $1548.05. The defendant had filed a counterclaim seeking damages in the sum of $6,000 alleged to have resulted from faulty construction by plaintiff. The judgment on the counterclaim was against defendant. The Supreme Court held it had jurisdiction of defendant's appeal (writ of error), the opinion stating, "In this case, Cora Lee Scott claimed defendant in error owed her $6,000 and that she did not owe defendant in error anything. Defendant in error, on the other hand, claimed plaintiff in error owed him $1,548.05 and that he did not owe plaintiff in error anything. The amount in dispute, between the parties, was and is $7,548.05. Hence the jurisdiction in this court." [330 Mo. 185, 49 S.W.2d 88.] For other cases on the same general subject see Wilson v. Russler, 162 Mo. 565, 63 S.W. 370; State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W.2d 760, and Schmidt v. Morival Farms, Mo.App., 232 S.W.2d 215. See also 4 C.J.S., Appeal and Error, § 77 (a), p. 167 for the following general statement, "where there is a judgment against defendant on plaintiff's cause of action and also against him on his counterclaim, the aggregate of the judgment and the counterclaim determines the jurisdiction of an appeal by defendant".
For all practical purposes we can see no distinction between the case at bar and the two cases heretofore discussed. In this case the defendants ask us to rule that plaintiffs are entitled to recover nothing and that the cause be remanded to enable them to seek judgments totaling $4,000 upon another trial of their counterclaims. If we should grant the relief they seek and if they should recover the $4,000 upon a re-trial of their counterclaims it is obvious that defendants would have received a financial advantage amounting to $9150 by reason of their decision to appeal from the judgments herein. By the same token plaintiffs would have sustained a detriment totaling $9150 as a result of our assumed decision.
It has been suggested that we cannot add the judgments of plaintiffs and the amount of defendants' counterclaims in determining the jurisdictional amount because this is a negligence action and only plaintiffs or defendants can recover, but not both. In other words, proof that plaintiffs are entitled to recover on their cause of action necessarily disproves their liability to defendants on the counterclaims and vice versa. Therefore, it might be argued that the most that could be in dispute would be either the total amount of plaintiffs' judgments or the total prayed for in the counterclaims. Similar reasoning was applied by this court in Hoefel v. Hammel, Mo. App., 228 S.W.2d 402, in determining an entirely different question. We have seriously considered this argument and have concluded that it would not make any difference in this case. Regardless of the fact that only one side may eventually recover herein the conclusion is inescapable that defendants by this appeal seek to obliterate plaintiffs' judgments totaling $5150 and obtain another opportunity to recover $4,000 on the counterclaims.
Considering this situation in the light of the aforementioned authorities we think it likely that the Supreme Court has jurisdiction of this appeal. At any rate, since there is serious doubt as to our jurisdiction we feel constrained to follow the policy announced long ago by this court in Reichenbach v. The United Masonic Ben. Ass'n, 47 Mo.App. 77, 78, as follows, "We consider it our duty, in case of doubt, to transfer the cause to the Supreme Court, which is the proper tribunal to set the question at rest by retaining or remanding the cause."
This cause should be transferred to the Supreme Court. It is so ordered.
ANDERSON, J., concurs.
BENNICK, P. J., dissents upon the ground that jurisdiction is in this court under the authority of Hoefel v. Hammel, Mo.App., 228 S.W.2d 402.