Evans v. A. L. Dyke Automobile Supply Co.

• Decision Date: 11 December 1906
• Citation: 101 S.W. 1132,121 Mo. App. 266
• Parties: EVANS v. A. L. DYKE AUTOMOBILE SUPPLY CO. et al.
• Court: Missouri Court of Appeals

101 S.W. 1132

121 Mo. App. 266

EVANS v. A. L. DYKE AUTOMOBILE SUPPLY CO. et al.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

Rehearing Denied January 22, 1907.

1. JUSTICES OF THE PEACE — APPEAL — AFFIDAVIT.

Where an affidavit for appeal from a justice's judgment did not recite that the affiant was agent for either of the defendants, but it did appear by other evidence that he was agent for one or both of them, the appeal was good for the one he represented.

2. SAME — CURING DEFECTS.

Where an appeal from a justice's judgment had been perfected, but no affidavit, or a defective one, had been filed, the appeal could not be dismissed without affording an opportunity to file a sufficient affidavit, as provided by Rev. St. 1899, § 4072 [Ann. St. 1906, p. 2216].

3. SAME — AUTHORITY OF ATTORNEY.

Where B. appeared as attorney for one of the defendants in a justice court, and took an appeal from judgment against both defendants, which purported to be for the benefit of both, and the other defendant recognized B.'s authority and appeared in the circuit court to contest the case, he was a proper party to the appeal, though it was not B.'s intention to file the affidavit and bond for the appeal in such defendant's behalf unless the latter procured a bondsman, which he failed to do.

4. MASTER AND SERVANT — ACTS OF SERVANT— SCOPE OF AUTHORITY — TORTS.

Plaintiff, who was the owner of an automobile which he desired to sell, was about to deliver the same to defendant for sale on commission, when defendant's servant, L., directed plaintiff's servant to retain the machine until the succeeding day, which was Sunday, that the servant, L., might show it to a prospective buyer; defendant's garage being closed on Sunday. This was agreed to, whereupon on Sunday L. took the machine, and, while using it on a pleasure trip of his own, it was struck by an electric car and destroyed. Held, that L., while so using the machine, was not acting in the course of defendant's business, and that the latter was therefore not responsible for the loss of the machine.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Albert D. Evans against the A. L. Dyke Automobile Supply Company and another. A judgment was rendered in favor of plaintiff before a justice of the peace, from which an appeal was taken, and, from an adverse judgment on the appeal, plaintiff appeals. Reversed and remanded.

Chilton Atkinson, for appellant. Carter, Collins & Jones, for respondents.

GOODE, J.

This is a suit for damages for the conversion of an automobile, against the Dyke Automobile Supply Company and H. B. Lemon. It was instituted before a justice of the peace on August 2, 1904, by a statement alleging that, on July 6th of said year, appellant entered into a contract with the automobile company, by which it was to take possession of a machine belonging to appellant, exhibit the same, and make reasonable efforts to sell it, in consideration of receiving 10 per cent. of the proceeds of the sale if one was made; that thereafter, pursuant to said contract, the company took possession of said machine, with the purpose of exhibiting it to a prospective purchaser; that appellant put the automobile in charge of one H. B. Lemon, who was then acting as the company's agent; that Lemon received the same as agent, displayed it to a prospective purchaser, and afterwards, without the knowledge or consent of appellant, took it to his (Lemon's) residence, and, while on a pleasure trip with it in the city of St. Louis, the machine was struck by an electric car and destroyed. Five hundred dollars damages was demanded. Appellant obtained judgment before the justice of the peace on August 17, 1904, and on the 26th of that month an appeal was taken to the circuit court. A question having arisen regarding whether or not Lemon appealed to the circuit court, the evidence on which the decision of the question depends will be given. The following affidavits for appeal and appeal bond were filed before the justice:

"State of Missouri, City of St. Louis — ss.:

"Before Justice Anthony A. O'Halloran, of the 5th District, City of St. Louis, Missouri.

"A. D. Evans, Plaintiff, v. A. L. Dyke Automobile Supply Co. (a Corporation) and H. B. Lemon, Defendants.

"This day personally appeared before me, Anthony A. O'Halloran, a justice of the peace for the 5th district, city of St. Louis, Roy F. Britton, who, being duly sworn, upon his oath, says that the application for appeal in the above entitled case is not made for vexation or delay, but because he believes the appellants to be injured by the verdict of the jury and the judgment of the justice, and that this appeal is from the merits.

                                    "Roy F. Britton
                           "Address, Equitable Building
                

"Sworn to and subscribed before me this 26th day of August, 1904.

                                "Anthony A. O'Halloran."
                

"We, the undersigned, A. L. Dyke Automobile Supply Co. (a corporation) and F. H. Britton, acknowledge ourselves indebted to A. D. Evans in the sum of eight hundred and no/100 dollars, to be void upon this condition: Whereas, said A. L. Dyke Automobile Supply Co. and H. B. Lemon have appealed from the judgment of Anthony A. O'Halloran, a justice of the peace of the Fifth district, of the city of St. Louis, in an action between A. D. Evans, plaintiff, and A. L. Dyke Automobile Supply Co. and H. B. Lemon, defendants. Now, if on such appeal, the judgment of the justice be affirmed, or if, on the trial anew, in the circuit court, city of St. Louis, Mo., judgment be given against appellants, and they shall satisfy such judgment, or if their appeal shall be dismissed, and they shall pay the judgment of the justice, together with the costs of appeal, the recognizance shall be void.

                        "A. L. Dyke Automobile Supply Co
                                    "A. L. Dyke, Prest
                                    "F. H. Britton
                

"Attest and approved this 26th day of August, 1904.

                             "Anthony A. O'Halloran,
                "Justice of the Peace of the 5th District.
                     City of St. Louis, Mo."
                

This notice of the appeal dated August 26, 1904, was served on respondent, but the date of the service does not appear:

"A. D. Evans, Plaintiff, v. A. L. Dyke Auto Supply Co. (a Corporation) and H. B. Lemon, Defendants.

"Before A. A. O'Halloran, Justice of the Peace, Fifth District, City of St. Louis.

"To A. D. Evans, Appellee: You are hereby notified that we have taken an appeal from the judgment of the justice in the above entitled cause, to the circuit court of the city of St. Louis.

                         "A. L. Dyke Automobile Supply Co.,
                          "H. B. Lemon, Appellants.
                  "Dated August 26, 1904."
                

When the cause came on for trial in the circuit court, the attorney for the automobile company asked leave to amend the affidavit for appeal by inserting after the words "Roy Britton," in the body of the affidavit, these words: "As agent for and for and on behalf of the A. L. Dyke Automobile Supply Company." The reason given for the motion was that Britton had authority to make the affidavit for the automobile company alone, and the words asked to be inserted were omitted from the affidavit by Britton's inadvertence; it being his purpose to appeal only on behalf of the automobile company. That this was Britton's purpose is said, in the motion, to be proved by the appeal bond having been executed only in the name of the automobile company as principal. In support of the motion, Britton testified that he was a lawyer, and also interested in the Dyke Automobile Company; that he represented said company at the trial of this case before the justice of the peace; that Lemon did not appear at the trial, and he was not Lemon's attorney; that Lemon had an attorney by the name of Cleveland. The witness did not state whether Cleveland was retained prior or subsequent to the trial before the justice, but some of his testimony looks like it was afterwards. Britton further testified that his reason for making out the affidavit for both the automobile company and Lemon was that the latter intended to appeal, and therefore the affidavit ought to read in the name of both parties; that he also prepared the bond reciting that both the automobile company and Lemon had appealed, and providing that if, on such appeal, the judgment of the justice was affirmed, or if, on the trial in the circuit court, the judgment should be given against appellants, and they should satisfy the judgment, or if their appeal was dismissed, and they should pay the judgment of the justice, together with the cost of the appeal, the recognizance should be void. The purport of Britton's testimony is that he was insisting that Lemon should get a bondsman to sign the appeal bond, and supposed for some time that he would; but Lemon found it impossible to do so, and finally notified Britton of his inability. The precise date when this information was given to Britton was not stated; but in that connection Britton swore as follows: "Q. Isn't it a fact, Mr. Britton, that you first sought to have Mr. Lemon secure a bondsman for himself? A. I sought right along to get Mr. Lemon to secure a bondsman for himself. Q. And isn't it a fact that he finally reported to you that he couldn't secure a bondsman? A. Not until after I served that notice, and after our bond was filed." He further swore he did not tell Lemon he had taken an appeal for him, but it was understood Lemon was to appeal; that he urged Lemon to appeal, because he regarded him as an important witness for the company. Britton was surety on the bond, and in a colloquy between counsel for appellant and the court the court said: "This man Britton has a right to have his liability limited to the party for whom he signed the bond. You can't make him liable for some one for whom he never intended to become liable." When the cause was called for trial in the circuit court, Lemon appeared with counsel, and announced that he was there to make defense. Af...