Chandler v. Gloyd
| Decision Date | 09 March 1909 |
| Parties | WILLIAM F. CHANDLER, Appellant, v. FLEMMON E. GLOYD et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.
Reversed on condition.
Scarritt Scarritt & Jones for appellant.
The trial court erred in holding that a peremptory instruction to find for defendants should have been given at the conclusion of all the evidence in the case. (a) Knight in digging up paying for and carrying away the load of cinders which formed the excavation into which plaintiff fell was in the execution of his master's business and was acting within the scope of his employment. (b) In cases like this where the terms of the employment are established by word of mouth and the course of business or practice, if it cannot be positively asserted whether the negligent act complained of is within the scope of the servant's employment, or of the master's business, then the determination of whether it was or not is an issue of fact to be determined by the jury and not a question of law to be determined by the court. (c) Defendants adopted the theory and principle just stated and submitted it to the jury through their instruction. (d) For the consequences of the negligent doing of an act by the servant acting pursuant to the master's orders, or in the execution of the master's business, or within the scope of his employment, the master is liable. (a) Englehart v Farrout Co., 1 Q. B. 240; Mitchell v. Crassweller, 13 C. B. 237; Quinn v. Power, 97 N.Y. 533; Hayes v. Wilkins, 194 Mass. 223; Sherlock v. Railroad, 85 Mo.App. 46. (b) Ritchie v. Waller, 63 Conn. 155; Whatman v. Pearson, L. R. 3 C. P. 422; Taylor v. Labeaume, 14 Mo. 401; Smith v. Stockes, 76 Mo. 178; Rickey v. Zappenfeldt, 64 Mo. 277. (c) Ellis v. Harrison, 104 Mo. 270; Horgan v. Brady, 155 Mo. 659; Seckinger v. Mfg. Co., 129 Mo. 590. It is a well-settled rule of law in this State that if a litigant through his own instructions submits an issue of fact to a jury, and that issue is ruled against him, he will not thereafter be heard to say that there was not sufficient evidence to sustain the jury's finding upon that issue. Mercantile Co. v. Burrill, 66 Mo.App. 117; Fenwick v. Bolwing, 50 Mo.App. 516; Seiter v. Vischoff, 63 Mo.App. 160; Jennings v. Railroad, 99 Mo. 394; Hopkins v. Modern Woodmen, 94 Mo.App. 409; Hartman v. Railroad, 548 Mo.App. 619; Randolph v. Frick, 57 Mo.App. 400; Gray v. Seligman, 75 Mo. 31; Minton v. Steele, 125 Mo. 181. (d) Hiern v. Mill, 13 Ves. 120; Meier v. Blume, 80 Mo. 183; Hedrick v. Beeler, 110 Mo. 91; Hickman v. Green, 123 Mo. 165; Farwell v. Railroad, 4 Metc. 49; Pollock on Torts, p. 77; Cooley on Torts (3 Ed.), p. 1025; Barwick v. Bank, 36 L. J. Ex. 147; Gass v. Cobbens, 43 Mo. 377; Harriman v. Stowe, 57 Mo. 98; Knowles v. Bullene, 71 Mo.App. 341; Stone v. Hills, 45 Conn. 47; Minter v. Bradstreet, 174 Mo. 497.
Basil P. Finley, Leslie J. Lyons and J. W. Farrar for respondents.
(1) Defendants have the right to present any and all other grounds before this court going to show their right to have the judgment in this case affirmed and in defense of the action of the trial court. Smart v. Kansas City, 208 Mo. 182; Emmons v. Quade, 176 Mo. 29. (2) The granting of a new trial lies within the sound discretion of the trial court and the action of the trial court in this respect will not be disturbed on appeal unless it is clearly shown by the record that this discretion was abused. The presumptions are in favor of the correctness of the trial court's action. Rodan v. Railroad, 207 Mo. 406; Lee v. Geo. Knapp & Co., 137 Mo. 392. (3) There was no proof of any negligence of respondents. 21 Am. and Eng. Ency. Law (2 Ed.), 457; Fuchs v. St. Louis, 167 Mo. 640; Atchison v. Railroad, 80 Mo. 213; Waldier v. Railroad, 71 Mo. 514. (4) The act of Knight was not in the furtherance of his master's business and was not within the scope of his employment. Farber v. Railroad, 32 Mo.App. 383; In the Joseph B. Thomas, 86 F. 658; Sheridan v. Bigelow, 93 Wis. 426; Henry v. Railroad, 50 Cal. 183; McGowan v. Chicago, etc., 91 Wis. 147; Motey v. Pickle Co., 36 U. S. A. 682; Beasley v. Transfer Co., 148 Mo. 413; Stone v. Railroad, 171 Mass. 536; Mali v. Lord, 39 N.Y. 381; Atherton v. Coal Co., 106 Mo.App. 591; Voegeli v. Marble Co., 49 Mo.App. 643. (5) Appellant was guilty of contributory negligence. Kaare v. Troy Steel & Iron Co., 139 N.Y. 369; Piper v. Cambira Iron Co., 78 Md. 249; Hathaway v. Railroad, 92 Ia. 337; McCinnon v. Narcross, 148 Mass. 533; Levesque v. Janson, 165 Mass. 16; Rawley v. Collian, 90 Mich. 31. (6) At the time he dug the excavation, Knight, though the nominal servant of the Gloyds, was in fact working under the direction and control of the Gas Company as to the manner and place of removing the cinders. Under this circumstance respondents are not liable. Hardy v. Sheldon Co., 47 U. S. Cir. Ct. App. 368; 20 Am. and Eng. Ency. Law, 178; Wyllie v. Palner, 19 L. R. A. 285; Shearman & Redfield on Negligence (4 Ed.), 269; McInerney v. Canal Co., 151 N.Y. 411; Railroad v. Keighron, 74 Pa. St. 316; Clapp v. Kemp, 122 Mass. 481; Atherton v. K. C., C. & C., 106 Mo.App. 591; Wood on Master & Servant, sec. 279; Walker v. Railroad, 121 Mo. 575. (7) The cause was one for the court and should not have been submitted to the jury. Sindlinger v. Kansas City, 126 Mo. 315. (8) There is no evidence upon which to base appellant's instructions. Bonine v. Richmond, 75 Mo. 439; Krech v. Railroad, 64 Mo. 175; Gist v. Loring, 60 Mo. 487; Quinlivan v. English, 44 Mo. 46; Bender v. Dungan, 99 Mo. 131; Donahoe v. Railroad, 83 Mo. 543; James v. Clough, 25 Mo.App. 147; Knoche v. Whiteman, 86 Mo.App. 571. (9) The jury has allowed a recovery for damages which are clearly not the proximate result of respondents' wrong if respondents committed any wrong. 7 Am. and Eng. Ency. Law, 387; Francis v. Transfer Co., 5 Mo.App. 7; Hunter v. City of Mexico, 49 Mo.App. 17. (10) There was no basis upon which a remittitur should be ordered by the court. Hunter v. City of Mexico, 49 Mo.App. 17; Slattery v. St. Louis, 120 Mo. 183; Creve Coeur v. Tamm, 90 Mo.App. 189; Koeltz v. Bleckman, 46 Mo. 320; Sheedy v. Brick Works, 25 Mo.App. 527; Rafferty v. Railroad, 15 Mo.App. 559.
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 Number Four 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...
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