Conway v. K.C. Public Service Co., 19102.

• Decision Date: 05 December 1938
• Docket Number: No. 19102.,19102.
• Citation: 125 S.W.2d 935
• Parties: BERNARD A. CONWAY, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, AND CLINTON WALTER SPARKS, APPELLANTS.
• Court: Missouri Court of Appeals

125 S.W.2d 935

BERNARD A. CONWAY, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, AND CLINTON WALTER SPARKS, APPELLANTS.

No. 19102.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

AFFIRMED.

Charles L. Carr and Hogsett, Murray, Trippe & Depping for appellant, Kansas City Public Service Company.

Hogsett, Murray, Trippe & Depping for appellant Clinton Walter Sparks.

(1) The remarks and statements made by plaintiff's counsel to the jury in his opening statement that defendant Sparks was convicted and fined $50 in the South Side Municipal Count on account of the alleged assault and battery in question was improper, prejudicial, erroneous, and prevented defendant Sparks and defendant Kansas City Public Service Company from having a fair and impartial trial. State v. Mills, 272 Mo. 526, 199 S.W. 131; O'Connor v. St. Louis Transit Co., 106 Mo. App. 215; Clawans v. District of Columbia, 62 Fed. (2d) 383; Skelbar v. Downey, 220 Mo. App. 5; Meyer v. Casualty Co., 123 Mo. App. 682, l.c. 690; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443; Bennett v. Life Assurance Co., 255 S.W. 1076; Summers v. Rutherford, 195 S.W. 511; Glover v. Atchison T. & S.F. Ry. Co., 129 Mo. App. 575. (2) The trial court erred in refusing said defendant's instruction "A". Which was a peremptory instruction in the nature of a demurrer at the close of plaintiff's evidence and should have been given because under the undisputed evidence defendant Sparks was not acting at the time and place in question as the agent, servant and employee of defendant Kansas City Public Service Company. Smothers v. Furnishing Co., 310 Mo. 144; Haehl v. Railroad Co., 119 Mo. 325, 339, 340; Gratton v. Snedmeyer, 144 Mo. App. 719, 723-4; Colletti v. Rebori, 107 Mo. App. 711, 717, 718; Farber v. Mo. Pac. Ry. Co., 116 Mo. 81, 94; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W. (2d) 801; Brown v. Boston Ice Co., 178 Mass. 108, 59 N.E. 644, 86 Am. St. Rep. 469; McDermott v. American Brewing Co., 105 La. 124, 52 A.L.R. 684; Cleveland Ry. Co. v. Huntington, 119 O. Stat. 518, 164 N.E. 752, 754; Valley v. Clay, 151 La. 710, 92 So. 308; Smith & Sons v. Dawson, 206 Ky. 107, 266 S.W. 926; Steinman v. Laundry Co., 109 Md. 62, 71 Atl. 517, 21 L.R.A. (U.S.), 884, 886; Feneran v. Singer Machine Co., 47 N.Y. Sup. 284, 20 App. Div. 574; Meehan v. Moorewood, 52 Hun. 566; Kastrup v. Yellow Cab & Baggage Co. (Kans.), 282 Pac. 742; Waaler v. Great Northern Ry. Co. (S.D.), 100 N.W. 1097; Bowen v. R.R. Co., 136 Fed. 306; Brown v. U.P. Ry. Co., 111 Kans. 338; Beery (4 Ed.), sec. 1204; Penn Ry. Co. v. Keely, 177 Fed. 189; Zortz v. Drake-Williams Co. (Neb.), 166 N.W. 608; Muller v. Hellenbrand (N.Y.), 125 N.E. 808; Reilly v. Rys. Co., 91 N.Y. Sup. 319; Little Miami Ry. Co. v. Wetmore, 19 O. Stat. 110, 2 Am. Rep. 373; Ducre v. Sparrow-Kroll Co., 133 N.W. 938, 168 Mich. 49; Johanson v. Pioneer Fire Co., 72 Minn. 405, 75 N.W. 719; Wells-Fargo v. Alexander, 146 Ark. 104, 225 S.W. 597; Smith v. Seaboard Airline Ry. Co., 18 Ga. App. 399, 89 S.E. 490; Camdiff v. Ry. Co., 42 La. Ann. 477, 7 So. 601; Georgia R.R. v. Wood, 94 Ga. 124, 21 S.E. 288. (3) The trial court erred in refusing said defendant's Instruction "D." Which was in the nature of a demurrer to all of the evidence offered by defendant Kansas City Public Service Co. at the close of all of the evidence. (4) The trial court erred in giving plaintiff's instruction number "1." There was no evidence upon which to base said instruction; said instruction erroneously assumes as true controverted and disputed facts, and assumes facts upon which there was no evidence to sustain and submits to the jury legal conclusions and gives to the jury a roving commission. Barr v. Nafziger, 328 Mo. 423, 41 S.W. (2d) 559; State ex rel. v. Williams, 51 S.W. 543; Counts v. Thomas, 63 S.W. (2d) 416; Boyer v. General Oil Products, 78 S.W. (2d) 450; Roberts v. Wilson 225 Mo. App. 932, 33 S.W. (2d) 169; Hockley v. Hulet Bros. Storage Co., 16 S.W. (2d) 749; Jennings v. National Life & Accident Ins. Co., 226 Mo. App. 777, 46 S.W. (2d) 226; Waaler v. Great Northern Ry. Co. (S.D.), 100 N.W. 1097. (5) The trial court erred in giving plaintiff's Instruction number "2." There was no evidence in the case that any witness for defendants had wilfully sworn falsely regarding any material fact in the case and no evidence that defendants had put any witness on the witness stand who had in any manner sworn falsely. Grundewell v. Parlernon, 207 Mo. App. 437, 229 S.W. 225; Lass v. Kansas City Rys. Co., 233 S.W. 70; Bank v. Miller, 26 S.W. (2d) 863. (6) The trial court erred in refusing said defendant's requested Instructions "E," "F" and "G." Which instructions requested the court to instruct the jury that defendant Sparks was not an agent, servant and employee of defendant Kansas City Public Service Company at the time and place in question. (7) The trial court erred in refusing said defendant's requested instructions "J," "M," "O" and "P." These instructions were proper and correctly defined the terms "scope of employment" for the jury. (8) The trial court erred in refusing to receive the jury's verdict marked Exhibit "9 BL." This verdict was the verdict of the jury, expressed the jury's findings and the court erred against both defendants in refusing to receive it. State ex rel. v. Rombauer, 44 Mo. 590. (9) The trial court erred in erroneously and improperly and illegally instructing and charging the jury orally after the jury had returned its verdict marked "Ex. 9 BL" into open court. Peck v. Traction Co., 131 Mo. 134, 110 S.W. 659; Berryman v. Cox, 73 Mo. App. 67; Fenton v. Hart, 73 S.W. (2d) 1034; Fitzsimmons v. Commerce Tr. Co., 200 S.W. 437. (10) The trial court erred in giving instruction "C3." This instruction was given after the case was argued and submitted to the jury and in view of the circumstances amounted to a peremptory instruction for the jury to find against both defendants. Said instruction was argumentative and a peremptory instruction to find against defendant Sparks and was erroneous for that reason. Ruch v. Pryor, 190 S.W. 1037; Cordes v. Straszer, 8 Mo. App. 61; Bank v. Gregg, 74 Mo. App. 639; Dyer v. Cowden, 168 Mo. App. 649, 154 S.W. 156; Jefferson v. Life Assn., 69 Mo. App. 126; Bank v. Fesler, 89 Mo. App. 217. (11) The trial court erred in orally instructing and charging the jury after the case had been submitted to the jury to the effect that it would be necessary that the jury return a verdict against both defendants and that the jury should return a verdict against both defendants. (12) The trial court erred in refusing to receive and accept the jury's verdict marked Exhibit "10 BL." State ex rel. v. Rombauer, 44 Mo. 590. (13) The trial court erred in orally instructing the jury as to their duty after the jury had returned its verdict marked Exhibits "Ex. 9 BL" and "Ex. 10 BL." (14) The trial court erred against and to the prejudice of both defendants in giving his instruction "C4." This instruction was tantamount to a peremptory instruction to find in favor of plaintiff and against both defendants. (15) The trial court erred in refusing to receive the third verdict returned by the jury marked exhibit "Ex. 11 BL." State ex rel. v. Rombauer, 44 Mo. 590. (16) The trial court erred in again orally instructing the jury after the jury had already returned three verdicts into court, and in orally instructing the jury as to whether they should find for the plaintiff compensatory or punitive damages. (17) The trial court erred in receiving and accepting the verdict upon which the judgment was entered.

Jerome Walsh and Roy W. Rucker for respondent.

(1) The court committed no error in overruling the objection made to the opening statement, because: (a) The statement of facts was a proper one. Buck v. Buck, 267 Mo. 644, 660, 666. (b) Even if erroneous, it was harmless. Sec. 1099, R.S. Mo., 1929. (c) The defendants did not request a withdrawal instruction. State, ex rel. Kresge v. Shain, 101 S.W. (2d) 14, 17. (2) The peremptory instructions offered by defendant should not have been given. Simmons v. Kroger Co., 104 S.W. (2d) 357, 360; State ex rel. Gosselin v. Trimble, 328 Mo. 761, 41 S.W. (2d) 801, 802; Haehl v. Wabash R.R. Co., 119 Mo. 325. (3) Plaintiff's Instruction 1 required the jury to find every fact essential to a recovery by plaintiff, assumed the truth of no controverted facts and did not submit a legal conclusion for determination by the jury. The giving of such instruction is not in error. (4) Under the record in the case it was proper for the court to instruct the jury that it might refuse to consider the testimony of any witness whom the jury might believe had wilfully sworn falsely as to any material fact. The statement of the facts by appellants in paragraphs 3 and 4 on page 3 of their brief discloses contradictory testimony concerning material facts. (5) The court committed no error in refusing defendant's requested instructions "J," "M," "O" and "P." There was either no evidence upon which to base the instructions or they were covered by other given instructions, which properly declared the law. Simmons v. Kroger Co., 104 S.W. (2d), 357, 360; Noland v. Morris, 212 Mo. App. 1, 9, 10; Ponillon v. Laclede Gas Co., 148 Mo. App. 462. (6) The court committed no error in refusing to receive and record Exhibits "9 BL," "10 BL" and "11 BL" as proper verdicts. McGinnis v. R.R., 200 Mo. 347, 363; Mickely v. Miss. Valley Steel Co., 221 Mo. App. 205, 211; State ex rel. St. Louis Pub. Serv. Co., v. Becker, 344 Mo. 115, 122. Sec. 767, R.S. Mo. 1929. (7) The court committed no error in directing the jury to reconsider its improper verdicts or in giving the jury additional instructions. Keyes v. Railroad, 326 Mo. 236, 250; Wilmott v. Corrigan Co., 106 Mo. 535, 547; Lummi Packing Co. v. Crider, 263 S.W. 543, 545.

CAMPBELL, C.

Action...