Blumenfeld v. Meyerschmid Grocer Company

CourtCourt of Appeal of Missouri (US)
Writing for the CourtALLEN, P. J.
Citation230 S.W. 132,206 Mo.App. 509
Decision Date05 April 1921

230 S.W. 132

206 Mo.App. 509



ROBERT C. ROLF, Respondent

Court of Appeals of Missouri, St. Louis

April 5, 1921

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.


Judgment reversed and cause remanded.

Greensfelder & Levi and H. C. Whitehill for appellant.

(1) There being nothing in the record to show that defendants or either of them offered instructions in the nature of demurrers which the court gave at the close of plaintiff's case, the court was without authority to give said instructions of its own motion, there being a total failure of connection between the close of the plaintiff's case and the giving of said instructions. Section 1987, R. S. 1909. (2) When an instruction in the nature of a demurrer to the evidence is offered, it is a rule that plaintiff's evidence must be taken as true and that he is entitled to the benefit of every inference reasonably springing from the proof. Shamp v. Lambert, 142 Mo.App. 567; Fritz v. St. Louis etc. Ry. Co., 243 Mo. 62; Vanneman v. Walker Laundry Company, 166 Mo.App. 685; Fleishman v. Polar Wave Ice & Fuel Company, 148 Mo.App. 117; O'Malley v. Heman Construction Co., 255 Mo. 386; Whiteaker v. Ry. Co., 252 Mo. 438. (3) A master is liable for the negligent acts of his servant which causes injury to a third party, whether such acts be purely negligent or whether wanton, willful or malicious, provided such acts are within the scope of the servant's employment. Chandler v. Gloyd, 217 Mo. 394; Hellreigel v. Dunham et al., 179 S.W. 763; Fellhauer v. Railroad Co., 177 S.W. 795; Moore v. Jefferson City, etc., Co., 163 Mo.App. 266; Bouillon v. Laclede Gas Light Company, 148 Mo.App. 462; Haehl v. Wabash Ry. Co., 119 Mo. 325; Bledsoe v. West, 171 S.W. 622; Keen v. St. Louis, etc., R. R. Co., 129 Mo.App. 301; Winn v. K. C. Belt Ry. Co., 245 Mo. 406; Republic Iron & Steel Co. v. Self, 68 So. 328. A master is liable for the negligent, willful or malicious acts of his servant while acting within the scope of the employment, and mere departure from the line of a servant's duty or conduct outside the servant's instructions, or if done in an indirect way, will not defeat the application of the doctrine of respondeant superior. Chandler v. Gloyd, 217 Mo. 394; McPeak v. Missouri Pacific R. R. Co., 128 Mo. 617, 30 S.W. 170; Colette v. Rebori, 107 Mo.App. 711, 82 S.W. 552; Whiteaker v. Chicago, etc., R. Co., 252 Mo. 348; Grattan v. Suedmeyer, 144 Mo.App. 719; Bouillon v. Laclede Gas Light Company, 148 Mo.App. 462; Haehl v. Wabash Ry. Co., 119 Mo. 325; Whimster v. Holmes, 177 Mo.App. 130 Richie v. Waller, 63 Conn. 155; Payton v. Clothing Company, 136 Mo.App. 577; Fensky v. Maryland Casualty Company, 264 Mo. 154 154; New Ellerslie Fishing Club v. Stewart, 93 S.W. 598, L.R.A. (N. S.) 9, 475; Boswell v. Barnum & Bailey, 185 S.W. 692; Hellreigel v. Dunham et al., 179 S.W. 763.

Jourdan, Rassieur & Pierce for respondent.

(1) The trial court properly sustained the defendants' demurrer to the evidence. The trial court may give instructions of its own motion. Sec. 1987, R. S. 1909. (2) (a) While all reasonable inferences will be indulged in plaintiff's favor, such inferences disappear in the face of actual facts. Mockowik v. Railroad, 196 Mo. 571. (b) While considering a plaintiff's evidence from a standpoint of a demurrer, he is entitled to every inference that can fairly be drawn from it in his favor, yet he is not entitled to a mere conclusion that a witness may draw when the facts stated show that the conclusion is without any reason. McCreery v. Railroad, 221 Mo. 18, 31. (c) Where a part of plaintiff's evidence tends to establish a prima-facie case, yet with the whole evidence it is neutralized, the demurrer is likewise properly sustained. Morrow v. Pullman Palace Car. Co., 98 Mo.App. 351. (d) If the whole testimony shows that, though a verdict be rendered for plaintiff, it would not be allowed to stand, the court should sustain a demurrer and take the case from the jury. City of Mexico v. Jones, 27 Mo.App. 534. (3) John Becker was not an employee or servant of Rolf, and Rolf was in no wise answerable for what he did. Mangan v. Foley, 33 Mo.App. 350; James v. Muehleback, 34 Mo.App. 512; Cooper v. Lowery, 60 S.E. 1015. (4) Because even if both Beckers were Rolf's servants, he would not be answerable for their fight with plaintiff, it not being in the scope of their employment or in the furerance of their master's business. Collette v. Rebori, 107 Mo.App. 711; Grattan v. Suedmeyer, 144 Mo.App. 719; Sacks v. Railroad, 192 S.W. 418; Sunderland v. Northern Express Co., 157 N.W. 1085; Muller v. Hillenbrand, 125 N.E. 808. (5) The plaintiff's petition does not state a cause of action, in that the act complained of was committed by the servant in the scope of his employment, and there is a failure of proof upon the part of the plaintiff, in that the evidence does not show that said act complained of was committed by the servant in the scope of his employment. Drolshagen v. Union Depot R. R., 186 Mo. 258.

ALLEN, P. J. Becker, J., concurs.

OPINION [230 S.W. 133]

[206 Mo.App. 512] ALLEN, P. J.

This action was instituted against the Meyer-Schmid Grocer Company, a corporation, and Robert C. Rolf, defendants, to recover for personal injuries alleged to have been inflicted upon the plaintiff by a servant of the defendants in charge of a team and wagon belonging to them. At the close of plaintiff's case the court gave two peremptory instructions, one to the effect that under the pleadings and evidence plaintiff could not recover against the defendant Meyer-Schmid Grocer Company, and the other to the effect that under the pleadings and evidence plaintiff could not recover against the defendant Rolf. It appears that the plaintiff did not except to the giving of the peremptory instruction as to the Meyer-Schmid Grocer Company, but did except to the giving of the instructions as to the defendant Rolf; and plaintiff thereupon took an involuntary nonsuit as to defendant Rolf. Thereafter plaintiff moved to set aside the nonsuit, and, upon this motion being overruled, appealed to this court.

The petition charges that on November 2, 1915, an agent and servant of defendants was driving a two-horse team and wagon, belonging to defendants, across the "McKinley Bridge" behind a wagon which plaintiff [206 Mo.App. 513] was driving; that defendants' said servant unlawfully demanded that plaintiff drive his wagon to the side to permit defendants' team and wagon to pass, "and unlawfully, willfully and maliciously then and there made an assault upon plaintiff, for the purpose of forcing plaintiff to get his wagon to the side so that said two-horse team and wagon could pass, and then and there did strike and beat plaintiff in and about the face, head and body, and thereby injured and damaged plaintiff's right arm and left leg. And it is averred that as a result of his said injuries plaintiff has become incapacitated from doing work and will be so incapacitated in the future to his damage in the sum of $ 5000. It is further alleged that said acts of defendants' servant were done maliciously and without legal justification, entitling plaintiff to recover exemplary damages therefor. Judgment is prayed for $ 5000 actual and $ 2500 punitive damages.

The evidence shows that the team and "two-horse wagon" mentioned in the petition were the property of the defendant Rolf, though the wagon had upon it the name "Meyer-Schmid Grocer Company;" and that one Harry Becker, who was upon the wagon, was an employee of defendant Rolf. The goods in the wagon belonged to the Meyer-Schmid Grocer Company, but were being hauled under a contract between that company and the defendant Rolf, upon whom alone plaintiff now seeks to fasten liability for the assault upon him.

When the controversy arose resulting in the assault, plaintiff was driving his wagon westwardly across the McKinley Bridge, i. e. approaching the City of St. Louis, and the said wagon of defendant Rolf--whom we shall hereafter term the defendant--was being driven across the bridge in the same direction. It appears that though Harry Becker was a servant of defendant in charge of the latter's team and wagon, he was not driving the team when the trouble arose, but was seated in the bed of the wagon mending a whip while his brother, [206 Mo.App. 514] John Becker, sat upon the driver's seat and held the reins. John Becker, it is said, was not in defendant's employ, but got upon the wagon, at Harry Becker's invitation, to ride across the river. At the time of the assault plaintiff's wagon was in front of defendant's team and wagon, and both wagons, and other traffic upon the bridge as well, had been stopped by a herd of cattle which was being driven westwardly across the bridge.

The testimony of plaintiff's witnesses is set out in appellant's abstract in narrative form. Respondent, however, has filed an additional abstract setting forth some testimony of the witnesses not included, it is said, in appellant's abstract. We shall undertake to set out the substance of the testimony of the witnesses, so far as here material, as it appears in the two abstracts filed.

The testimony of plaintiff's first witness, one Cannefax, as shown by appellant's abstract, is substantially as follows:

The witness testified that he was with a friend in an automobile on the McKinley Bridge at the time mentioned, driving toward St. Louis, and that they could not proceed forward on account of a large herd of cattle in front of them; that the two wagons, viz., plaintiff's one-horse wagon and defendant's two-horse wagon, were in front of the automobile in which the witness was riding, and were on the north side of the bridge, on the "approach" on the St. Louis side of the river, plaintiff's wagon being...

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