Alexander v. Starchronicle Publishing Company
| Decision Date | 06 November 1917 |
| Citation | 198 S.W. 467,197 Mo.App. 601 |
| Parties | CATHERINE ALEXANDER, ADMINISTRATRIX OF THE ESTATE OF CHARLES F. ALEXANDER, DECEASED, Respondent, v. STARCHRONICLE PUBLISHING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted October 4, 1917
Appeal from the Circuit Court of the City of St. Louis--Hon. Kent. K. Koerner, Judge.
AFFIRMED.
Judgment affirmed.
Fred L English and W. Christy Bryan for appellant.
(1) To recover against a corporation for personal injuries the plaintiff must allege and prove that the act causing the injury was committed by an agent or servant of the defendant in the scope of his employment and in the course of business. Snyder v. Railroad, 60 Mo. 143; Glassman v Harry, 182 Mo.App. 304. (2) A master is not liable for injuries resulting from acts of a servant while under the control of a third person or independent contractor. It is not the actual exercise of control which is regarded, but the right to exercise such control, and the contract with an independent contractor who employs such servants governs. 26 Cyc., 1522; Healy v. Range Co., 161 Mo.App. 483; Garven v. Railway Co., 100 Mo.App. 617; O'Hara v. Gas Light Co., 244 Mo. 395, 408 and 409; Fink v. Furnace Co., 82 Mo. 276, 284; Kipp v. Oyster, 133 Mo.App. 711, 716; Wills v Railroad, 133 Mo.App. 625, 634; Long v. Moon, 107 Mo. 334; Foster v. Wadsworth, 168 Ill. 514; Wood v. Cobb, 13 Allen (Mass.) 258; Gale v. Deroit Journal Co., 158 N.W. 36; Press Brick Co. p. Campbell, 116 Ill.App. 322; Cole v. Gas Co., 121 La. 771; Hillsdorf v. St. Louis, 45 Mo. 98; Smith v. R. R., 85 Mo. 418, 432; Delory v. Blodgett, 185 Mass. 126, 64 L. R. A. 114. (3) An instruction which tells the jury to assess damages at such sum as the jury may believe and from the evidence to be a reasonable compensation for pain, loss of wages, expenses, etc., suffered and to be suffered from plaintiff's injuries is error unless the instruction is modified by other instructions stating that the jury must find that such injuries are due to the negligence or fault of the defendant. Powell v. Railroad, 255 Mo. 420; Eversole v. Railroad, 249 Mo. 523; McDonald v. Construction Co., 183 Mo.App. 415; Davis v. Street Ry. Co., 188 Mo.App. 128; Menhardt v. Midland Ice & C. Co., 163 Mo.App. 278. (4) An instruction which tells the jury to assess damages at such sum as the jury may believe and find from the evidence to be a reasonable compensation for pain, loss of wages, expenses, etc., suffered and to be suffered from plaintiff's injuries, unless modified by other instructions, irrespective of whether such injuries are due to the negligence or fault of the defendant, is tantamount to directing the jury to find in favor of the plaintiff simply because he was injured. Powell v. Railroad, 255 Mo. 420; Eversole v. Railroad, 249 Mo. 523; McDonald v. Construction Co., 183 Mo.App. 415; Davis v. Street Ry. Co., 188 Mo.App. 128; Menhardt v. Midland Ice & C. Co., 163 Mo.App. 278. (5) An instruction which tells the jury that the burden of proof is on the plaintiff to establish the facts necessary to a verdict in his favor under these instructions impliedly tells the jury that the burden of proof is not upon the plaintiff as to facts not covered by such instructions, and if the other instructions omit to charge upon the main issues involved in the case the instructions as a whole are erroneous. Powell v. Railroad, 255 Mo. 420; Eversole v. Railroad, 249 Mo. 523; McDonald v. Construction Co., 183 Mo.App. 415; Davis v. Street Ry. Co., 188 Mo.App. 128; Menhardt v. Midland Ice & C. Co., 163 Mo.App. 278. (6) It is error to give an instruction allowing the jury to include in its verdict damages for inability to earn wages in the future unless the petition has alleged that plaintiff will be unable to earn such wages in the future and unless proof is submitted as to what plaintiff is earning at the time of the injury. In the absence of such proof loss of future earnings is mere speculation. Wallack v. St. Louis Transfer Co., 123 Mo.App. 160, 167; Paquin v. St. Louis & Suburban Ry. Co., 90 Mo.App. 118; Leach v. Railroad, 137 Mo.App. 300. (7) The court should have given defendant's peremptory instruction asked at the close of plaintiff's case. Kipp v. Oyster, 133 Mo.App. 711; Wood v. Cobb, 13 Allen (Mass.) 58; Gall v. Detroit Journal Co., 158 N.W. (Michigan Sup. Ct.) 36.
John C. Robertson and Phil H. Sheridan for respondent.
(1) It was a question for the jury under the evidence to say whose servant Albert Sattele was. Gayle v. Mo. Car & Fdy. Co., 177 Mo. 427; Kipp v. Oyster, 133 Mo.App. 711; O'Neil v. Blase, 94 Mo.App. 648; Waters v. Fuel Co., 52 Minn. 474; Muelich v. Braker, 119 Mo.App. 332; Coal & Iron Co. v. Barrie, 179 F. 50, 54; The Estrathallan, 184 F. 474; Standard Oil Co. v. Anderson, 212 U.S. 215; Flori v. Dolph, 192 S.W. 949 (Mo. Sup. Ct., Feb. 20, 1917; Sempier v. Goemann, 161 N.W. 354; Heywood v. Ogasapian, 224 Mass. 203; Stagg v. Taylor's Adm., 89 S. E. (Va.) 237; Katz v. Lutz, 163 N.Y.S. 562; Konelitsky v. Mathews, 118 N.Y.S. 366; Cain v. Hugh Bawn, 202 Mass. 237; Baldwin v. Abrahams, 57 Appellate Div. 67 (affd.), 171 N.Y. 677; Peele v. Bright, 89 S.E. 238. (2) It is not error to under-in-struct the jury. Section 1987 of the Revised Statutes of 1909; Browning v. Railroad Co., 124 Mo. 55; Dukan v. Merc. Co., 197 Mo. 238; Powell v. Railroad Co., 255 Mo. 420; Davis v. Street R. R. Co., 188 Mo.App. 130; Hufford v. Insurance Co., 130 Mo.App. 638; Parman v. Kansas City, 105 Mo.App. 691; Wilson v. Railroad Co., 122 Mo.App. 667. (3) If defendant desired a more specfiic charge on the measure of damages it must ask it. Hufford v. Insurance Co., 130 Mo.App. 638; Rattan v. Railroad Co., 120 Mo.App. 270; Powell v. Railroad Co., 255 Mo. 420. (4) Defendant submitted the question of independent contractor to the jury and cannot now complain because it found against it. Barston v. Cable Co., 144 Mo. 220; Scarf v. Fries, 77 Mo.App. 360; Water Co. v. City of Neosho, 136 Mo. 508; Hartman v. Railway, 48 Mo.App. 624; Seiter v. Bischoff, 63 Mo.App. 157.
Charles F. Alexander, as plaintiff, by his amended petition in the case, charges that in the conduct of its business, the defendant, Star-Chronicle Publishing Company, a corporation, engaged in the publication and circulation of a newspaper in the city of St. Louis, known as the St. Louis Star, employs automobile trucks to deliver large bundles of newspapers to the various dealers in the city of St. Louis; that these trucks are operated and managed by the agents and servants of the defendant and are operated over the streets of the city at a fast and highly dangerous speed; that on October 12, 1914, one of these automobile trucks, while in charge of the agents and servants of the defendant, and while being operated at a speed in excess of twenty-five miles an hour, in violation of the statute, and when at or about the intersection of two streets, the agent and servant of the defendant in the automobile threw a heavy bundle of papers from a fast moving automobile to the sidewalk and hit plaintiff; that the agent and servant of the defendant threw this bundle of papers from a fast moving automobile in utter disregard of the presence of pedestrians lawfully upon the street and without warning; that the throwing of the bundle and the fast and dangerous rate of speed at which the automobile was operated was negligence and directly caused plaintiff's injuries; that he was thrown to the ground by the force of the blow from the bundle of papers, hurt about his head, arms and legs, and body, and has sustained internal injuries, from all of which he was unable to follow his usual occupation; that he suffered great pain of body and distress of mind, and will so suffer for a long time; that his injuries are permanent; that he employed a physician to attend to his injuries, for whose services he must pay not to exceed $ 200. Judgment is demanded for $ 5000.
The answer was a general denial.
The cause was tried before the court and a jury and resulted in a verdict in favor of plaintiff in the sum of $ 2300, judgment following. Interposing a motion for new trial and in arrest and these being overruled, defendant has duly appealed. Pending the appeal Charles F. Alexander died and his widow Catherine Alexander was duly substituted as administratrix of his estate, entering her appearance as such.
At the close of the testimony in chief for plaintiff, and again at the close of all the testimony in the case, the defendant asked an instruction for a verdict which the court refused, defendant excepting.
At the instance of the plaintiff the court gave an instruction on the measure of damages, which was the only instruction asked by plaintiff.
At the instance of the defendant the court gave this instruction:
"If you find and believe from the evidence that the injury to plaintiff, if any, was caused by a bundle of newspapers being thrown from a fast-moving automobile truck; that said automobile was run by Arthur H. Bode, and said newspapers were thrown by some one in his employ and under his control; and if you further believe that the said Arthur H. Bode had entered into and was at said time delivering newspapers for the defendant under the written contract introduced as evidence by the defendant, then your verdict should be for the defendant." (Italics ours.)
Of its own motion the court instructed the jury that the burden of proof was on plaintiff to establish by the preponderance or greater weight of evidence the facts necessary to a verdict in his favor "under these instructions," and defined the burden of proof and the number of jurors necessary to find a verdict. Defendant also...
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