Adler v. Ewing

• Decision Date: 13 June 1961
• Docket Number: No. 30655,30655
• Citation: Adler v. Ewing, 347 S.W.2d 396 (Mo. App. 1961)
• Parties: Lawrence ADLER, Plaintiff-Respondent, v. Bertram F. EWING and St. Louis Cab Company, Defendants, St. Louis Cab Company, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 396

347 S.W.2d 396

Lawrence ADLER, Plaintiff-Respondent, v. Bertram F. EWING and St. Louis Cab Company, Defendants, St Louis Cab Company, Defendant-Appellant.

No. 30655.

St. Louis Court of Appeals, Missouri.

June 13, 1961.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 11, 1961.

Alphonse G. Lynch, St. Louis, for defendant Ewing.

Librach, Heller & Byrne, William P. Byrne, St. Louis, for appellant.

James F. Koester, Frank R. Smillie, St. Louis, Joseph W. Toeniskoetter, St. Louis, of counsel, for respondent.

BRADY, Commissioner.

This is a suit for damages arising out of personal injuries sustained by the respondent when he was assaulted by the defendant Ewing, who was employed by the appellant. Judgment against the appellant and Ewing was awarded in the amount of $3,500, from which only the St. Louis Cab Company appeals.

Taking the facts in the light most favorable to respondent, as we are required to do, it appears that respondent was employed by West End Motors Company as a service manager, and in such capacity made an estimate on a repair job involving a new set of piston rings in a 1953 Dodge which had 'St. Louis Cab Company' on both sides of it; that the automobile was brought back to the shop several times thereafter because Ewing was not satisfied with the job; that as a result of continual dissatisfaction with the piston ring job, the respondent finally agreed to install a new motor, giving Ewing credit for the amount of the ring job on the new motor job; that when this new motor was installed and the job completed, Ewing was notified and called for the cab and asked if he could test drive it; that the respondent agreed provided he could go along because the engine had not been paid for; that Ewing had agreed to pay 'C.O.D.' for the job; that after driving around for awhile they reached a point about a half block from West End Motors Company where he was told to get out of the car; that he refused until the bill was paid or the car returned to the shop; that thereafter they drove around for some time during which respondent pulled the keys out of the ignition (Ewing had another set), tried to attract the attention of a policeman and to persuade some pedestrians to call the police or his company, all in an effort to get the car back to the shop; that Ewing pulled up behind a lumber yard at Shreve and Palm, parked the car, took out the keys and told him, 'Now you get out of this cab or I'm going to throw you out', and respondent replied, 'You're going to have to do it because I'm not going to get out of this cab until you bring it back and square away on this bill'; that Ewing got out, walked around to the passenger side, opened the door, grabbed the respondent by the upper arm, pulled him out of his cab and injured his left knee in doing so.

Further testimony on behalf of plaintiff on this point was given by the witness Heuer. Taking that testimony in the light required of us, it shows that Heuer was the bookkeeper for West End Motors Company and he identified the original repair order for the ring job. He was also permitted to testify, over objection, that the check for this work in the amount of $127.65 was shown on the deposit slip of West End Motors, accompanying their bank deposit, as being a check of St. Louis Cab Company, Incorporated. However, upon cross-examination he testified that this deposit slip did not show whether it was their check made payable to West End Motors, or to some other party and endorsed to them.

Taking the evidence offered on behalf of the appellant which aids the respondent, the witness Triplett testified that he was the president of St. Louis Cab Company at the time this incident occurred, and that in 1957 the company was sold lock, stock and barrel to the Marcella Cab Company; that Ewing had purchased the taxicab from him, paying about $1,300 which was financed by the St. Clair Finance Company but that the title remained in the appellant. He was asked whether or not the appellant derived more benefit from a cab in operation than one tied up in a garage but an objection to this question was sustained.

One Joseph Losos testified that he was the vice-president of St. Clair Automobile Finance Company, and although subpoenaed to bring his records pertaining to an automobile sold to Ewing by appellant could not comply as he had found no such records; that they ordinarily kept such two to four years; that a search was made of the file of one of the attorneys for the St. Clair Automobile Finance Company also, but no records were found; third, that it was their practice to retain title to a car until the terms of the contract with respect to payment had been complied with.

Ewing's testimony upon the point, viewed in the light required of us, was that the check given for the original repair job was not his own check but he could not say whether it was a check of appellant's or not. In any event, it was given him by an officer of appellant as a loan. His further testimony was that he paid appellant 'Seventy-five dollars for the use of the cab, twenty-five dollars for the use of the radio * * *' monthly; that they exercised control over his activities as a driver with respect to where he went, what pickups he made, etc.; that he was an employee at least before and after this incident occurred; that he never signed any papers which set out that he was to make payment for the motor installation; that he didn't know whether the title to the automobile was ever transferred to him or not, he never received it, but he did buy the cab for $1,300; that he financed such purchase through the St. Clair Finance Company, making his payments to them and contacting them when it was necessary to purchase license plates. He further testified that he left the cab on the lot of the Marcella Cab Company when he quit driving and that was all he knew of what happened to it, except that the St. Clair Finance Company later billed him for $127, but he didn't know for what.

Appellant contends that the trial court prejudicially erred in overruling its motion for directed verdict filed at the close of respondent's case and assigns several reasons for its position. We need not rule upon them. The trial court did not specifically rule upon this motion for a directed verdict at the time it was offered so far as the transcript discloses and appellant did not insist upon any ruling. Moreover, when objections to the instructions were dictated into the record, counsel for the appellant stated that his objection to the instructions should show also that he objected to the trial court's action in overruling its motion for directed verdict '* * * at the close of plaintiff's case and the entire case.' It is evident then that appellant took its earlier motion as overruled. Appellant proceeded to offer evidence on its own behalf. By doing so, it waived its right to complain of the trial court's action. Daniels v. Smith, Mo., 323 S.W.2d 705; Sides v. Mannino, Mo.App., 347 S.W.2d 391.

Appellant then contends that the trial court prejudicially erred in overruling its motion for a directed verdict filed at the close of all the evidence. Again, the transcript fails to disclose any specific ruling upon the motion nor any insistence by counsel for a ruling, but the statement of appellant's counsel above quoted shows clearly either that the trial court did so overrule the motion or that counsel understood it was overruled. The question presented by this assignment of error is whether or not, under all the evidence viewed in the light required of us, the respondent made a submissible case against this appellant.

In the case of Tockstein v. P. J. Hamill Transfer Co., Mo.App., 291 S.W.2d 624, this court held that before one assaulted by the servant may hold the master liable, there must be proof that the assault was made to promote or further the master's business. In determining whether or not such proof exists in this record, we are to give the respondent, who received the jury's verdict, the benefit of all favorable inferences from the evidence viewed in the light most favorable to him, unless it is in conflict with his own theory of the case. Tockstein v. P. J. Hamill Transfer Co., supra; Missouri Digest, Appeal and Error, k930. We are to disregard the appellant's evidence unless it aids respondent's case. Thaller v. Skinner & Kennedy Company, Mo., 315 S.W.2d 124. The answer is in the affirmative. It was the appellant's automobile, Section 301.210 RSMo 1949, V.A.M.S., and as a result of Ewing's action, appellant got it out of the garage. They recovered their property, even if their income from it, $100 a month, was not shown to have been changed by that recovery. The appellant received its property back and without the action of Ewing would not have done so, so far as this record discloses, unless someone paid the garage bill. That this constitutes an act which was in the furtherance of its business and from which it derived benefit, albeit that benefit was not shown by this record to have been in terms of a difference in monthly income derived from the automobile, cannot be denied. It follows that the trial court did not err in overruling the appellant's motion to dismiss.

The appellant's contention that the trial court prejudicially erred in overruling the motion for a dismissal because the decision in a magistrate court case filed against Ewing by the West End Motors Company for the amount of repair to the automobile and also for damages to its servant, the respondent, is without merit. Appellant cites no authority for such a contention, and we believe there can be none. In order to have estoppel by former judgment, there must be identity of the thing sued for, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality of the person for or against whom the claim is made. Missouri Digest, Judgment, k634. In this action the parties...