Columbia Taxicab Co. v. Mercurio

• Decision Date: 06 December 1921
• Docket Number: No. 16701.,16701.
• Parties: COLUMBIA TAXICAB CO. v. MERCURIO et al.
• Court: Missouri Court of Appeals

236 S.W. 1096

COLUMBIA TAXICAB CO. v. MERCURIO et al.

No. 16701.

St. Louis Court of Appeals. Missouri.

December 6, 1921.

Rehearing Denied February 2, 1922.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by the Columbia Taxicab Company against Mikel Mercurio and another doing business as Mercurio Bros., a copartnership. Judgment for the defendants on their counterclaim in the circuit court on appeal from a justice of the peace, and plaintiff appeals. Reversed and remanded.

Guy A. Thompson and Marvin E. Boisseau, both of St. Louis, for appellant.

Walter L. Roos, of St. Louis, for respondents.

BRUERE, C.

This suit was begun before a justice of the peace by attachment. Plaintiff sued to recover damages done to its automobile resulting from a collision between said automobile and defendants' delivery truck. The complaint filed before the justice alleged that the collision was due to the negligent and careless driving of said truck.

The defendants duly entered their appearance in the cause and filed the following counterclaim:

"To all loss and damage to defendants' automobile truck, and to personal injuries sustained by Mike Mercurio, arising out of a collision with an automobile owned and operated by plaintiff, which occurred on or about July 27, 1917, at or near the intersection of Seventh and Olive streets in the city of St. Louis, Mo., occasioned by the negligence and carelessness of plaintiff, $500."

The trial in the justice court resulted in a judgment in favor of the defendants on the plaintiff's cause of action, and in favor of the plaintiff on defendants' counterclaim. Both plaintiff and defendants duly appealed the cause to the circuit court of the city of St. Louis. At the trial of the cause in the circuit court the defendants filed the following amended joint counterclaim:

"Now comes defendants, and for their joint counterclaim against plaintiff state that defendant is justly indebted to them in the following amounts by reason of the carelessness and negligence of said plaintiff in colliding with defendants' automobile truck on or about the 27th day of September, 1917, at or near the intersection of Seventh and Pine streets in the city of St. Louis, Mo.:

                1. Damage to motor truck................... $ 50 00
                2. Loss to partnership by reason of absence
                    from business of Mike Mercurio for ten
                    days ..................................  100 00
                3. Loss to partnership by reason of freight
                    paid through the loss of use of motor
                    truck for two weeks....................   50 00
                                                            ________
                                                            $200 00"
                

At the same time the defendant Mike Mercurio filed the following separate counterclaim:

"Now comes Mike Mercurio, one of the defendants in the above cause, and for his separate counterclaim against plaintiff states that plaintiff is justly indebted to him in the sum of $300 by reason of the negligence and carelessness of plaintiff in colliding with a motor truck in which plaintiff was riding on or about the 27th day of July, 1917, at the intersection of Seventh and Pine streets in the city of St. Louis, and thereby causing plaintiff to be thrown from said truck and injured."

The trial in the circuit court resulted in a verdict and judgment in favor of the defendants on plaintiff's cause of action, and in favor of the defendants on their joint counterclaim for the sum of $75, and in favor of the defendant Mike Mercurio on his separate counterclaim for the sum of $100. Unsuccessful in obtaining a new trial in the circuit court, plaintiff prosecutes this appeal.

The issue on defendants' joint counterclaim was submitted to the jury solely on the claim for "Loss to partnership by reason of absence from business of Mike Mercurio for ten days, $100.00." The other items of the counterclaim were abandoned by defendants.

Counsel for appellant contends that the court erred in allowing defendant Mike Mercurio to file a separate counterclaim in this cause. He bases his contention on two grounds: (1) That, this being a suit against a partnership, a member of said partnership could not offset against plaintiff's claim the debt of plaintiff to him; (2) that the circuit court had no jurisdiction to allow the filing of said counterclaim because the same was not filed before the justice.

(1) This is a suit against a partnership. A partnership debt being joint and several, each member may be sued separately and made to pay the whole of it. Thus it follows that the separate demands of each member of a partnership may be pleaded as an offset to their joint obligation. Sections 1292, 1233, 2768, Revised Statutes 1919; Ruddle v. Horine, 34 Mo. App. loc. cit. 619, 620; Weiss v. Wahl. 5 Mo. App. 409; Russell v. Geyer et al., 4 Mo. 233; Todd et al. v. Boone County, 8 Mo. 312; Rent v. Rogers, 24 Mo. 306; Mortland v. Holton et al., 44 Mo. 58; State of Missouri, to Use of Kendrick, v. Hudson, 86 Mo. App. loc. cit. 511; Skinker v. Smith, 48 Mo. App. loc. cit. 95.

(2) If plaintiff desired to avail himself of the failure on the part of the plaintiff to file the counterclaim in the justice court, he should have made objection thereto in the circuit court. No objection was made to strike out nor was objection made to the reception of evidence thereon, but plaintiff went to trial on the issue thus raised. Since plaintiff interposed no objection to the counterclaim, all objection to the propriety of allowing it to be filed are to he deemed as waived; and the plaintiff is now in no position to raise the question here. Sims v. Field, 24 Mo. App. 565; Hurley v. Mo. Pac. Ry. Co., 57 Mo. App. 680; Jones v. C., B. & K. C. Ry. Co., 59 Mo. App. 142; Hubbard v. Quisenberry, 28 Mo. App. 27; Matthews v. Perdue, 79 Mo. App. 153; Meadows v. C., M. & St. P. Ry. Co., 82 Mo. App. 91; Strode v Frommeyer, 115 Mo. App. 223, 91 S. W. 167; Keyes & Watkins Livery Co. v. Freber., 102 Mc. App. 318, 76 S. W. 698; Barton Lumber Co. v. Gibson, 178 Mo. App. 703, 161 S. W. 357; Young Men's Christian Association v. Morrow, 165 Mo. App. 515, 148 S. W. 952; Schenck v, Stumpf, 8 Mo. App. 382; Wegner v. Gray, 145 Mo. App. 456, 122 S. W. 755.

Counsel for appellant further contends that the court erred in instructing the jury that plaintiff could not recover if they found from the evidence that the plaintiff at the time in question was driving its automobile at a rate of speed in excess of eight miles per hour, provided they found that said excessive speed directly contributed to cause the collision between the motor vehicles of plaintiff and defendant.

Two reasons are assigned why the giving of said instruction was reversible error: (1) That the court erred in instructing the jury on the issue of plaintiff's contributory negligence; (2) that there was no evidence introduced upon which to predicate it.

(1) Appellant contends that the court erred in instructing the jury on the issue of plaintiff's contributory negligence, because the defense of contributory negligence...