Beuttenmuller v. Vess Bottling Company of St. Louis

395 S.W.2d 204 (1965)

Patricia Rose BEUTTENMULLER, an Infant, by Paul A. Beuttenmuller, Next Friend, and Paul A. Beuttenmuller, Appellants, v. VESS BOTTLING COMPANY OF ST. LOUIS, Defendant, the Great Atlantic and Pacific Tea Company, Inc., a Corporation, Respondent.

No. 51435.

Supreme Court of Missouri, Division No. 1.

November 8, 1965.

*205 J. C. Jaeckel, Moser Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for appellants.

HIGGINS, Commissioner.

Patricia Rose Beuttenmuller, a minor, and her father, Paul A. Beuttenmuller, sued Vess Bottling Company of St. Louis (Vess) and The Great Atlantic and Pacific Tea Company, Inc., a corporation (A & P), for $25,000 for personal injuries to Patricia (Count I) and for $2,000 for medical expenses expended by her father (Count II). The action is alleged to arise from injuries sustained by Patricia when a bottle manufactured by Vess exploded in a store operated by A & P.

Defendant A & P filed a separate motion to dismiss on the ground that the petition does not state claims upon which relief can be granted against it. This motion to dismiss was sustained and a subsequent motion to set aside the order sustaining the motion to dismiss was overruled.

Defendant Vess filed a separate answer and also has filed a separate motion to dismiss or, in the alternative, for a more definite statement. The transcript on appeal does not show any disposition of the motion to dismiss or the case in chief as to defendant Vess, and the reply to our direct inquiry of the Clerk of the Circuit Court of the City of St. Louis states that the Vess motion "has not been ruled on and is still pending in this court."

Plaintiffs' appeal is from the order dismissing their petition against defendant A & P, and although the issue has not been raised, it is our duty to determine whether there is a final appealable judgment disposing of all parties and issues in this cause. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 [1-3].

The motion to dismiss of defendant A & P was concerned only with whether the petition stated a claim as to that particular defendant, and the ruling on the motion was no broader. Such an order of dismissal did not affect the action as against defendant Vess who had also filed a motion to dismiss and an answer. The cause was thus at issue, pending and undisposed of as to defendant Vess; and there being no judgment disposing of all parties and issues, there is no final judgment and the appeal is premature. Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., Mo., 215 S.W.2d 444, 445 [1, 2]; State ex rel. *206 Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489 [1,2].

The appeal is dismissed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.