
    Charles Jameson and Raymond D. Silkey, Respondent, v. William M. Fox, Appellant,
    No. 43341
    260 S. W. (2d) 507.
    Division Two,
    September 14, 1953.
    
      Lincoln, Lincoln, Haseltine <& Forehand, Harold T. Lincoln, Horace 8. Haseltine and Edmund G. Forehand for appellant.
    
      ■ Farrington ■& Curtis, E. C. Curtis and Boy C. Miller for respondents.
   LEEDY, P. J.

Charles Jameson and Raymond D. Silkey brought this action as plaintiffs to recover damages occasioned by the alleged negligence of defendant Fox in. so operating his passenger car as to cause it to collide with Jameson’s milk truck which was being driven by his agent, Silkey. Jameson claimed $'500 on account of damages to his truck, and Silkey $5000 for personal injuries. Fox filed an answer, and also a counterclaim (in two counts) by which he sought to recover $15,000 for the wrongful death of his wife and $5926.50 actual damages, (plus $5000 punitive damages) for personal injuries and property loss, all. allegedly sustained by him as a result of plaintiffs ’ negligence in ¡the operation of, the milk truck at the time and place in question. The collision occurred in Webster County about 10 A. M., on November 10, 1949, at the intersection of an east-west gravel road (oh which Silkey was driving'east) and a north-south black top road (on which Fox was driving north). Plaintiffs’ claims were submitted under instructions hypothesizing negligence under the humanitarian doctrine and primary negligence in that defendant failed to exercise the highest degree of care in the operation of his motor Vehicle- — in particulars'which are counterparts of those under which defendant’s counterclaim was submitted. Both counts of defendant’s counterclaim were submitted under a single instruction hypothesizing primary negligence on Silkey’s part in having “failed to use the highest degree of care in that he failed, carelessly and negligently, to keep a vigilant and diligent lookout both laterally and ahead on said highway, or tha,t he carelessly and negligently failed to keep said truck under proper control so that the same could be slowed down, turned or stopped as the occasion might require. ’ ’ Upon such submissions, the jury found separate verdicts for each plaintiff for $500, and also found for them and against defendant on the latter’s counterclaim. Judgment was rendered accordingly, and defendant appealed to the Springfield Court of Appeals, where appellant subsequently filed a motion to transfer the appeal, alleging jurisdiction to be in this court.“because-of the* amount involved in the counterclaim.” The motion was sustained (without opinion), and it was adjudged that the cause “be-transferred to the Supreme Court under authority of Davis et al. v. Hauschild, (Mo. Sup.) 243 S.W. 2d 956.”

The jurisdictional statement does nothing more than, state the -mere conclusion that “the amount in dispute, exclusive of costs, exceeds the sum of $7500.” The intent and purpose of S. Ct. rule 1.08 (a) (1) is that the record facts affecting jurisdiction shall be sufficiently developed to demonstrate the existence of the asserted jurisdiction. But in the absence of such a statement, we have searched the record and found the' facts controlling the, question to be as stated above, and from them we have reached- the conclusion that the “amount in dispute”

dóes not exceed $7500. Theamounts recovered by plaintiffs on tbeir respective claims aggregate the 'siim of $1000;--which figuré (and not the ainbunt demanded in the counterclaim) is the ‘ * amount in dispute ’ ’ for the purpose'of determining appellate jurisdiction under the facts of-this'partieulur ease. This is not a case where plaintiffs’ claims and defendant’s counterclaim can coexist in law.- -Proof off one necessarily dispróvés the '-other; so that there can be-no-such eventuality as both recovering, or, ;on this appeal,' affirming the judgment on plaintiffs’' claims aiid reversing -it as'to MefehdantAcounterelaim.. And in this Situation, we approve and adopt the'reasoning of'Judge Bennick in the analogous case of Hoefel v. Hammel, (Mo. App.) 228 S.W. 2d 402, 405.

There Hoefel sued Hammel for $10,801.26 damages ■ for personal injuries sustained in ah automobile collision. The defendant counterclaimed for $11',809¡ Finding and judgment want'for' defendant on plaintiff’s cause of'-action, and for the defendant and against plaintiff on defendant’s counterclaim in the sum■ of :$5,000." Plaintiff filed a motion for "new-trial, iff was sustained, and defendant appealed. 'In disposing of the jurisdictional question, the court said: “Só here we have a situation where,- if we view the' record solely from the standpoint of the 'setting asidé óf defendant’s Verdict'for. $5,000 on his counterclaim, appellate jurisdiction is in 'this court, but where, if we view the order granting the new trial as hávin'ghad- the' -independent effect of also restoring plaintiff’s cause of action to the-status - of a pending claim for $10,801.26, appellate jurisdiction would on that ground alone be in the Supreme Court. Indeed, if the two causes of action could exist independently so that there could be both a plaintiff’s verdict on plaintiff’s..cause olfaction and a defendamos, verdict- on. defendant’s counterclaim, the.amount-now in dispute, .wquld comprise the amount sued for on plaintiff’s cause of actiqn plus-the-.amount recovered by defendant on his counterclaim, and appellate jurisdiction would be all the more clearly in the Supreme Court. Wilson v. Russler, 162 Mo. 565, 63 S. W. 370.

“The solution of our problem lies in the fact that owing to the nature of this case a plaintiff’s verdict on plaintiff’s cause of action and a defendant’s verdict on defendant’s counterclaim could not exist together. By his cause of-action, plaintiff sought, to impose complete responsibility/for the collision upqn defendant, While defendant, by his counterclaim, sought to impose.-complete responsibility for the collision upon plaintiff. In other words, the situation is one where defendant’s counterclaim was not only a counterclaim in the sense that it asked for affirmative relief, but also where the facts upon which the counterclaim was based., if established, constituted a complete defense to plaintiff’s cause of Action. Bramblett v. Harlow, Mo. App., 75 S.W. 2d 626, 623. Upon the qúestiompf ’liability for the. accident the proof of either cause of action would at the same" time disprove the other. In this situation the issues arising both on plaintiff’s cause of action and on defendant’s counterclaim were merged, in and resolved by the verdict in.-defendant^ favoy. on-,his .counterclaim, and the only real question in dispute on this appeal is whether that verdict shall be reinstated. It follows that since-such verdict-is for $5,000, appellate jurisdiction is in this -court. ’ ’ And so it is in the case at bar. The issues arising under both the .petition and counterclaim have been merged in and resolved by- the .$1000. judgment of whiph.defendant compiains on this -appeal, -and the question is whether that judgment shall be affirmed or reversed. -! In- either event, the sum demanded in the counterclaim does not represent the “amount in dispute,” but on the contrary the latter is fixed by the amount of plaintiffs’ judgment, to-wit, $1000.

The case of Davis v. Hauschild, supra,- while properly decided-.on the facts there in judgment, is nevertheless not. in point for this reason: There, plaintiffs’ claim and the defendants’ counterclaim were of such a nature as to have independent existence, and hence came within the -following general rule: “"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.’’ 4 C.J.S., Appeal and Error, § 77, p. 167.

For the reasons noted,-, the-cause is retransferred to the Springfield Court of Appeals.

Ellison, J., concurs; Tipton, J., concurs in result.  