Opinion
No. 53128.
January 22, 1968. Rehearing Denied February 12, 1968.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS; DAVID A. McMULLAN, JUDGE.
Gerritzen Gerritzen, by Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
Robert H. Burns, Clayton, for respondent, Green.
F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary Jaeckel, St. Louis, for respondent, Fruehauf Trailer Co.
This action for personal injuries arises out of the same automobile collision as did the case of Bell v. Green and Fruehauf Trailer Company, Mo., 423 S.W.2d 724, and the same parties are defendants. Our opinion in that case is filed concurrently with this opinion. The collision was between a car operated by one Becker and a tractor-trailer of defendant Fruehauf; for all practical purposes the car was owned by Green, who was a rear seat passenger. Both Green and Becker were minors.
This case was tried one week after the Bell case, in the Circuit Court of the City of St. Louis, but in a different division. The jury, as in the prior case, returned a verdict against Green ($10,000) but in favor of defendant Fruehauf. The trial court set aside the judgment against Green and entered judgment in his favor, upon the theory that no case had been made against that minor defendant; it overruled plaintiff's motion for judgment or for a new trial against Fruehauf. Plaintiff appealed. The St. Louis Court of Appeals affirmed, and we subsequently transferred this case and the Bell case to this Court for review. As in the Bell case, plaintiff's application for transfer asked only that we transfer her appeal "as to Defendant Gordon Green to the Supreme Court of Missouri * * *." We rule, as we did in the Bell case, that the plaintiff has thus affirmatively abandoned her appeal as to Fruehauf.
The two cases were argued here at the same time. We have examined the present transcript in full, and find no substantial differences between the evidence in this case and that in the Bell case. The facts were fully related in that opinion and the issues between plaintiff and defendant Green were stated, discussed and determined. Our rulings and our opinion there govern this case in all particulars.
For the reasons stated in the opinion in Bell v. Green and Fruehauf Trailer Company, a corporation, the judgment in favor of defendant Gordon Green is reversed and the cause as to him is remanded. The judgment in favor of defendant Fruehauf Trailer Company is affirmed, but it should be held in abeyance pending a final disposition of the case against defendant Green. The costs of this appeal are taxed equally against the plaintiff and defendant Green.
All concur except SEILER, J., who concurs in result for reasons appearing in concurring opinion filed in Cause No. 53129.
On Rehearing
For the reasons stated in a per curiam filed this day in Bell v. Green et al., Mo., 423 S.W.2d 724, the motion of Plaintiff-Appellant for the adoption of the concurring opinion of SEILER, J., or for a rehearing is overruled, and the motion of Defendant-Respondent Green for a rehearing is overruled.