Brunk v. Hamilton-Brown Shoe Co.

• Citation: 66 S.W.2d 903,334 Mo. 517
• Parties: Ray Brunk v. Hamilton-Brown Shoe Company, a Corporation, William R. Gentry, Receiver of Hamilton-Brown Shoe Company and Robert Doneghy, Appellants
• Decision Date: 22 December 1933
• Court: United States State Supreme Court of Missouri

66 S.W.2d 903

334 Mo. 517

Ray Brunk v. Hamilton-Brown Shoe Company, a Corporation, William R. Gentry, Receiver of Hamilton-Brown Shoe Company and Robert Doneghy, Appellants

Supreme Court of Missouri

December 22, 1933

Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.

Affirmed.

Allen Moser & Marsalek for appellants.

(1) On the record the judgment against W. R. Gentry, receiver, is erroneous. A receiver for a corporation is not liable for damages due to an injury alleged to have been caused by the wrongful act of the corporation or its servants before the receiver's appointment. Smith v. Railroad Co., 151 Mo. 402; Allen v. Railroad Co., 184 Mo.App. 492; Sec. 125, Title 28, U.S. Code; Northern P. Ry. Co. v Heflen, 83 F. 93; McDermott v. Crook, 20 App Cas. 465; Emory v. Faith, 113 Md. 253, 77 A. 386; Decker v. Gardner, 124 N.Y. 334, 26 N.E. 814; Arnold v. Suffolk Bank, 27 Barb. 424; Brown v Warner, 78 Tex. 543, 14 S.W. 1032; Flynn v Furth, 25 Wash. 105, 64 P. 904. (2) The court erred in overruling the demurrers at the close of all the evidence requested by defendants Hamilton-Brown Shoe Company and its receiver, because the evidence was insufficient to show that defendant Doneghy was engaged in the discharge of any duty for his codefendants when the accident occurred. (a) When the evidence was introduced showing just what Doneghy was doing on the occasion of the accident, whatever presumption might otherwise have arisen from Doneghy's general employment for the shoe company, and the company's ownership of the automobile involved, fell out of the case. Guthrie v. Holmes, 272 Mo. 237. (b) According to the undisputed evidence Doneghy had completed his work for the shoe company more than two hours before the accident occurred, and in the interim, and at the time of the accident, was engaged in his own private pursuits. Under such circumstances there can be no liability upon the part of the shoe company or its receiver for Doneghy's acts. Calhoun v. D. C. & E. Mining Co., 202 Mo.App. 564; Kilroy v. Crane Agency Co., 203 Mo.App. 302; Vallery v. Hesse Building & Material Co., 211 S.W. 95; Lansing v. Hayes, 196 A.D. 671, 118 N.Y.S. 329; Southern Casualty Co. v. Ehlers, 14 S.W.2d 111; Otto v. Chapin, 243 Mich. 256, 220 N.W. 661. (3) The court erred in permitting plaintiff's second amended petition to be read to the jury. (a) It has been held repeatedly that the pleadings are for the court, and not for the jury, and that the reading of the pleadings to the jury is not proper. Gorman v. Railroad Co., 325 Mo. 334; Van Orman v. J. C. Penney Co., 60 S.W.2d 412; Blackmore v. Railroad Co., 162 Mo. 455. (b) In this case the error was prejudicial to defendants, because the injuries and damages alleged in the petition were for the most part unproven, and the plaintiff's instruction on the measure of damages did not specifically limit the jury to the items they could consider. Under such circumstances the plaintiff erroneously went to the jury on all the allegations of damage pleaded in his petition. Crossno v. Terminal Railroad Assn., 41 S.W.2d 800; Cox v. Terminal Railroad Assn., 43 S.W.2d 576. (4) The court erred in submitting the case without instructions advising the jury of the facts necessary to be found to warrant a verdict against the respective defendants. (a) This court has constantly criticized the submission of negligence cases without an instruction defining the issues. Kohr v. Met. St. Ry. Co., 117 Mo.App. 302; Allen v. Transit Co., 183 Mo. 435; Keehn v. D. R. F. R & I. Co., 328 Mo. 1046. (b) The court has held such course to be reversible error where the trial court gives a general instruction on the subject, likely to mislead and confuse the jury. Freeman v. Berberich, 60 S.W.2d 396. (5) The court erred in giving, at plaintiff's request, Instruction C. (a) Even though technically correct, an instruction should not be given which submits a bare principle, in cryptic form, to the jury, without hypothesizing the facts according to which the verdict should be for the one party or the other. Such course constitutes reversible error. Yarnell v. Railway, 75 Mo. 575; Boland v. Railroad Co., 284 S.W. 145; Freeman v. Berberich, 60 S.W.2d 395; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673; Peppers v. Railroad Co., 316 Mo. 1104; Felts v. Spesia, 61 S.W.2d 404; Henry v. Disbrow Mining Co., 144 Mo.App. 362; Raybourn v. Phillips, 160 Mo.App. 534. (b) An instruction should be in plain and simple language, clear and explicit, definite, and direct in statement. It should not leave too much to the discretion of the jury. Gillette v. Laederich, 242 S.W. 112. (6) The court erred in giving the jury, at plaintiff's request, Instruction D. This instruction was likely to confuse and mislead the jury, in that it presupposed that a verdict for plaintiff should be against all the defendants, especially inasmuch as neither this instruction nor any other instruction given distinguished or pointed out the circumstances under which a verdict could be rendered against one defendant and in favor of the others. Beem v. Beem, 141 N.E. 81, 193 Ind. 481; Ratte v. P. Berry & Sons, 119 A. 894, 98 Conn. 522; Beaver v. Taylor, 68 U.S. 644, 17 L.Ed. 601; Blackman v. Bloom, 31 Ill.App. 614. (7) The court erred in orally instructing the jury as to the form of their verdict. (a) Our statute requires instructions to be in writing, and an oral instruction, under some circumstances, will constitute reversible error. Sec. 967, R. S. 1929; State ex rel. v. Rubber Mfg. Co., 149 Mo. 196; Bergfeld v. Dunham, 201 S.W. 641. (b) The instruction was further erroneous because it required the jury to use one of the forms of verdict before them, when they had no form for a finding in favor of plaintiff and against one defendant and in favor of the other defendants. See authorities under Point 6, supra. (8) The court erred in giving the jury plaintiff's Instruction B on the measure of damages. (a) The instruction went beyond the evidence in authorizing the jury to consider the damage to plaintiff's wagon and team when evidence was entirely lacking as to the reasonable value of the wagon and one of the mares. Duke v. Railroad, 99 Mo. 347; Simpson v. Burnett, 299 Mo. 246. (b) The instruction is further erroneous in that it fails to give the jury the correct measure of damages for loss or destruction of property, which is the difference between the reasonable value of the property immediately before and immediately after the occurrence. Pannell v. Allen, 160 Mo.App. 722; Smith v. Railroad, 183 Mo.App. 188; Streett v. Laumeier, 34 Mo. 469; Badgley v. City of St. Louis, 149 Mo. 134; Jackels v. Railroad Co., 231 S.W. 1025. (c) The part of the instruction relative to plaintiff's personal injuries fails to limit the allowance to fair and reasonable compensation, and fails to confine the jury to a consideration of the damage sustained as a result of the collision in question. It is a wholly general, roving commission, and as such is fatally erroneous. Fisher v. Transit Co., 198 Mo. 589; Camp v. Wabash Railroad Co., 94 Mo.App. 272; Jacquemin v. Grand Avenue C. Co., 57 Mo.App. 335; Boyd v. Transit Co., 108 Mo.App. 303; Maggioli v. Transit Co., 108 Mo.App. 416; Rose v. W. U. T. Co., 38 S.W.2d 483. (9) The court erred in refusing to discharge the jury and to declare a mistrial on account of improper and prejudicial argument before the jury by plaintiff's counsel. Jackman v. Ry. Co., 206 S.W. 244; Smith v. Railroad Co., 31 S.W.2d 105; Warren v. Guidici, 9 S.W.2d 541; Williams v. Columbia Taxi Cab Co., 241 S.W. 970; Ryan v. Sheffield, C. & E. Co., 24 S.W.2d 166. (10) The court erred in permitting plaintiff's counsel to read excerpts from the deposition of defendant Doneghy. If the plaintiff desired to introduce said deposition as an admission against interest by the defendant, it was the plaintiff's duty to read the entire document. Bompart's Admr. v. Lucas, 32 Mo. 123; Milliken v. Thyson Com. Co., 202 Mo. 654. (11) The court erred in permitting Dr. Roy M. Wolf to testify to alleged nervous conditions not pleaded in the petition. Said injuries were not a necessary result of the injuries pleaded, and it was reversible error to admit evidence thereof over the objection of the defendants. Hall v. Manufacturers Coal & Coke Co., 260 Mo. 370; Rosenweig v. Wells, 308 Mo. 634. (12) The court erred in permitting plaintiff to read in evidence Plaintiff's Exhibit A, a statement of account. Said exhibit was incompetent; it was not properly identified and constituted mere hearsay. Karr and Conn v. Cade School District, 297 S.W. 734; Johnson v. American R. E. Co., 245 S.W. 1071; Ramsey v. Watters, 1 Mo. 406; 22 C. J. 929, sec. 1138. (13) The verdict is grossly excessive, and the court erred in refusing to set it aside and grant the defendants a new trial. (a) The evidence was insufficient to show that the plaintiff had suffered any permanent injuries. Plank v. Brown Petroleum Co., 61 S.W.2d 334; Lebrecht v. United Rys. Co., 237 S.W. 112; Rosenweig v. Wells, 308 Mo. 640; Clark v. Ry. Co., 324 Mo. 419. (b) The excess due to the inclusion in the award of property damages, not sustained by the evidence, cannot be computed and cannot be cured by remittitur. Duke v. Railroad, 99 Mo. 347; Rhoades v. Nevada, 47 Mo.App. 501; Haworth v. Railroad Co., 94 Mo.App. 227; Simpson v. Burnett, 299 Mo. 246; Morris v. Grand Avenue R. Co., 144 Mo. 508. (c) Where an excessive verdict is due to prejudicial evidence the error cannot be cured by remittitur. Olian v. Olian, 59 S.W.2d 678. (d) The verdict is grossly excessive when compared with recoveries permitted for similar injuries in other cases. Kleinlein v. Foskin, 13 S.W.2d 648; Bragg v. Met. St. Ry. Co., 192 Mo. 365; Nichols v. Crystal P. G. Co., 126 Mo. 55; Dean v. Railroad Co., 229 Mo....