Chandler v. Gloyd

Decision Date09 March 1909
Citation217 Mo. 394,116 S.W. 1073
PartiesCHANDLER v. GLOYD et al.
CourtMissouri Supreme Court

Defendants directed K., their servant, to go to a gas company's grounds and get a load of cinders. K., instead of getting them from the dump, where the gas company's foreman told him to, took them from under the track used in taking the cinders in cars from the gas works to the dump, thus negligently making an excavation into which an employé of the gas company, operating a cinder car, fell. Held, that K. was acting within the scope of his employment, thus making defendants liable for his act.

5. MASTER AND SERVANT (§ 329)—INJURY TO THIRD PERSON—NEGLIGENCE—PLEADING.

The petition, alleging that defendants negligently excavated and caused to remain open a hole under the cinder track from gasworks, though alleging that defendants knew, or by ordinary care might have known, that employés of the gas company would pass along the cinder path according to the custom of the business "shortly thereafter in the nighttime," does not restrict the right of recovery of plaintiff, an employé of the gas company injured by falling into the hole, dug by defendants' servant, to defendants' actual knowledge that the gas company's employés worked on the path at night.

6. APPEAL AND ERROR (§ 1140)—REVERSAL ON CONDITION OF REMITTITUR.

As a condition to reversal of the order granting defendants a new trial on the ground that there was no evidence to show liability, a remittitur of $3,500 will be required, the trial judge having first denied the motion for new trial on such condition, and plaintiff having accepted the condition, though this order was afterwards set aside, and plaintiff allowed to withdraw his remittitur, on the making of the final order for new trial.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by William F. Chandler against Flemmon E. Gloyd and others. From an order granting defendants a new trial, plaintiff appeals. Reversed on condition of remittitur.

Scarritt, Scarritt & Jones, for appellant. Finley & Lyons, for respondents.

GANTT, P. J.

This is an appeal from an order of the circuit court of Jackson county granting a new trial to the defendants on the ground that said court erred in refusing the peremptory instruction, requested by the defendants at the close of all the testimony in the case, to find for the defendants. Prior to the investigation of the alleged error of the circuit court in granting said new trial, we are called upon to determine the motion of the defendants to dismiss this appeal or affirm the judgment of the circuit court in granting said new trial, on the ground that the record shows that the appeal was not taken at the term of the court at which the order sustaining defendants' motion for new trial was made.

In order to a proper understanding of this motion to dismiss the appeal, the following facts disclosed by the record must be kept in view: The verdict for the plaintiff was rendered July 15, 1904, at the April term of the Jackson circuit court. On July 19, 1904, the defendants filed their motion for new trial. On February 4, 1905, at the January term, the defendants' motion for new trial was sustained. On February 7, 1905, and at the same term, the plaintiff filed a motion to set aside the order granting a new trial. The cause was then continued to the April term, 1905. On April 29, 1905, and at the April term of said court the motion to set aside the order granting a new trial was sustained if the plaintiff should remit $3,500 of the verdict on or before May 10, 1905, otherwise the motion for new trial would be sustained. Afterwards, on Wednesday, May 10, 1905, at the same term, the plaintiff filed his remittitur of $3,500. Afterwards at the same term, on May 27, 1905, the defendants' motion for new trial was again sustained for error in refusing the peremptory instruction to find for the defendants, to which ruling the plaintiff at the time duly excepted, and afterwards, to wit, on June 1, 1905, at the same April term, plaintiff filed his motion to set aside the order of May 27th granting the motion for new trial, on the ground that the said order of May 27, 1905, was improvidently entered; that the plaintiff on May 10, 1905, in compliance with the ruling upon and induced thereto by the order of the court of April 29th, had entered its remittitur upon the verdict, and the court had entered no judgment thereon, and had not set aside its order of February 4, 1905. Thereafter at the same term, and on June 19, 1905, the plaintiff filed its application for a change of venue, and the cause was then continued to the October term, 1905, and on November 18, 1905, the change of venue was granted, and the cause was transferred to division No. 4 of the circuit court of Jackson county, over which Honorable H. L. McCune presided. On December 23, 1905, at said October term, the plaintiff's motion filed June 1, 1905, to set aside the order of May 27, 1905, was by the court sustained. And afterwards, on January 6, 1906, at the said October term, the court of its own motion set aside its order entered on December 23, 1905, and continued the cause. And afterwards, on January 13, 1906, the cause came on for hearing upon plaintiff's motion filed June 1, 1905, to set aside the order of May 27, 1905. The court ordered that the order of the court made on February 4, 1905, sustaining the defendants' motion for new trial, for the reason that the verdict of the jury was excessive, be set aside, and the same was set aside, and that the conditional order of the court made April 29, 1905, sustaining plaintiff's motion to set aside the order granting a new trial, also be set aside, and the order of the court theretofore made and entered on May 27, 1905, sustaining defendants' motion for new trial for error in refusing a peremptory instruction finding for defendants, be also set aside, and plaintiff was allowed to withdraw his remittitur filed on May 10, 1905, which was accordingly done and said remittitur canceled, and thereupon the court sustained the motion for new trial on the ground that the court erred in refusing the peremptory instruction requested by the defendants, to which action of the court the plaintiff at the time duly excepted. And thereupon, on the same day, at said January term, 1906, the plaintiff prayed an appeal to the Supreme Court, and filed his affidavit in support thereof, and an appeal was granted to the plaintiff.

The contention of the defendants is that the circuit court of Jackson county lost jurisdiction of this case at the expiration of the January term, 1905, and that all orders made in the case subsequent to that term were absolute nullities and void, and the affidavit for appeal not having been filed at the January term, 1905, this court has no jurisdiction of this appeal. In support of this proposition, counsel relies upon section 808 of the Revised Statutes of Missouri for 1899 (Ann. St. 1906, p. 775), which is as follows: "No such appeal shall be allowed unless: First, it shall be made during the term at which the judgment or decision appealed from was rendered, and second, the appellant or his agent shall during the same term file in the court his affidavit stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court." Counsel also cites a number of decisions by this court and the Court of Appeals construing said section 808. But none of said cases reach the condition of the record like the one before us on this appeal. In Riddlesbarger v. McDaniel, 38 Mo. 139, a very similar question arose. In that case the defendants moved to dismiss the appeal and strike out the bill of exceptions because the same was not made and signed at the term in which the judgment was rendered. It appeared that damages were assessed by the court below upon the dissolution of an injunction, and that the plaintiffs at the same term and within the time prescribed by law filed their motion for new trial, which motion was by the court continued until the next term. At the next term the motion was considered by the court and overruled. The plaintiffs excepted, and filed their bill of exceptions, and appealed to this court. It was contended that as the bill of exceptions was not made and signed during the term at which the judgment was rendered, therefore it was...

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