Fawkes v. National Refining Co.

Decision Date30 July 1937
Citation108 S.W.2d 7,341 Mo. 630
PartiesBessie H. Fawkes, Appellant, v. National Refining Company, a Corporation, and Earl Howell
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Judgment against defendant Howell reversed and remanded for new trial as to the assessment of plaintiff's damages only, the verdict to remain in force. Judgment against defendant company reversed and remanded.

Luther W. Adamson and Martin J. O'Donnell for appellant.

(1) The court erred in refusing the peremptory instruction requested by plaintiff directing the jury to find for plaintiff for the following reasons: (a) The evidence adduced by both parties established the liability of the refining company as a matter of law. The only contention made by that defendant was that Howell had no authority to help push the Stinnett coal truck from the station ground onto and over the highway. The printed rules established the contrary as a matter of law. Darlington Lbr. Co. v. Mo. Pac. Ry. Co., 243 Mo 224; Kazee v. K. C. Life Ins. Co., 217 S.W. 339; Zarber v. Ins. Co., 10 S.W.2d 967; State ex rel Bowdon v. Allen, 337 Mo. 268; Gately v. Ry. Co., 332 Mo. 13; Waters v. Bankers Life, 226 Mo.App. 1200; Wendorff v. Mo. State Life, 318 Mo. 363. (b) The liability of defendants was joint and the admission of liability and the extent of plaintiff's injury by Howell during the trial was admissible against and binding on the defendant, National Refining Company. St. Louis v. Clark, 35 S.W.2d 992; Armstrong v. Farrar, 8 Mo. 627; Hurst & Salmon v. Robinson, 13 Mo. 60; Adair v. K. C. Term. Ry., 282 Mo. 133; 22 C. J. 352; Schierbaum v. Schemme, 157 Mo. 21; Slagle v. Calloway, 330 Mo. 1065; Sec. 1079, Wigmore on Evidence. (c) Howell admitted the facts alleged in the petition at the instance and instigation of the National Refining Company and for its benefit only and not for his own. Hence it is bound by the admission. Treadwell v. Graham, 88 N.C. 208; Kanopka v. Kanopka, 113 Conn. 30; Miller v. Journal Co., 246 Mo. 722. (d) The admission was made by Howell in furtherance of a wrongful purpose, to-wit: to suppress competent evidence pursuant to a concert or scheme between the two defendants. Hence the admission was competent against and binding on the National Refining Company. Reese v. Fife, 279 S.W. 424; 22 C. J. 396; State v. Gatlin, 267 S.W. 797; Lawler v. Loewe, 235 U.S. 522; State v. Carroll, 288 Mo. 392; State v. K. C. Live Stock Exc., 211 Mo. 181; Heim Brewing Co. v. Belinder, 97 Mo.App. 64. (e) The admission made by the withdrawal of the answer of Howell was a judicial admission made by the National Refining Company through its duly authorized agents confessing the truth of all the allegations of the petition against the National Refining Company and Howell. Wigmore on Evidence, secs. 2590, 2591; Oscanyon v. Arms Co., 103 U.S. 261; Pratt v. Conway, 148 Mo. 299. This court said in Pratt v. Conway: "Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals." Cantrell v. Knight, 72 S.W.2d 199 (2) Where two coparties are defendants and the liability is joint and the defense of one party depends upon the defense of the other as here, then the admission of one coparty made at the instance of the other party and for its benefit is binding on it and constitutes a judicial admission against it. Tredwell v. Graham, 88 N.C. 211; 22 C. J. 350. (3) There was a concert or agreement between the defendants and their agents to suppress or exclude competent, relevant and material evidence, a purpose which was in itself unlawful and consequently any act or statement or admission made by any of the parties in connection with the accomplishment of the unlawful purpose as a result of carrying out the concert, scheme or design, was admissible against and binding on any coparty. Reese v. Fife, 279 S.W. 424; 22 C. J. 396; State v. Gatlin, 267 S.W. 797; Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341; State v. Carroll, 288 Mo. 407, 232 S.W. 699. (4) The court erred in receiving the verdict and rendering judgment thereon against Howell for one dollar for the reason that under the uncontradicted evidence in the case and under the admission of Howell the plaintiff was entitled to the entire amount sued for and in any event a jury may not render any verdict it pleases without reference to the facts and it establishes passion, prejudice or misconduct. 17 C. J. 725; Nelson v. Conn. Mut. Life Ins. Co., 14 Mo.App. 592; Fairgrieve v. Moberly, 29 Mo.App. 141; McCarty v. Transit Co., 192 Mo. 401; Fisher v. St. Louis, 189 Mo. 567; Grodsky v. Bag Co., 324 Mo. 1067.

Ringolsky, Boatright & Jacobs and McVey, Randolph, Smithson & Garrity for National Refining Company.

(1) No error in refusing plaintiff's peremptory instruction, because she waived the error, if any, by requesting and receiving instructions submitting the question of liability to the jury. Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307; Blair Horse & Mule Co. v. Hatfield, 175 Mo.App. 296, 162 S.W. 319; Emerson-Brantingham Implement Co. v. England, 186 S.W. 1181; LaMonte Bank v. Crawford, 27 S.W.2d 762; Deere Plow Co. v. Cooper, 91 S.W.2d 145. (2) The printed rules did not establish as a matter of law that Howell was acting within the scope of his employment. Plaintiff so construed the rules at the trial by seeking to prove that by custom or oral instruction Howell was acting within the scope of his authority, and by requesting and receiving her Instruction 2-a submitting to the jury the question of whether or not Howell was acting within the scope of his employment. (a) The rule that an admission of liability by one of two jointly liable is an admission by both has no application to actions in tort against a master and servant where the master can only be held liable under the doctrine of respondeat superior. They are not jointly liable within the meaning of such rule. One may be liable and the other not. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Von De Veld v. Judy, 143 Mo. 348, 44 S.W. 1117; St. Louis v. Clark, 35 S.W.2d 986; Steckel v. Swift & Co., 56 S.W.2d 806; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883, 6 L. R. A. (N. S.) 202; King v. Gilson, 191 Mo. 307, 90 S.W. 367. (b) To hold otherwise would involve complete departure from the rule that declarations of a servant or agent cannot be received against the principal as admissions, but only as a part of the res gestae. Atkinson v. Am. School of Osteopathy, 240 Mo. 338, 144 S.W. 816; Frye v. Railroad Co., 200 Mo. 377, 98 S.W. 566, 8 L. R. A. (N. S.) 1069; Carson v. St. Joseph Stockyards Co., 167 Mo.App. 443, 151 S.W. 752. (c) A party has the absolute right to stand in default, if he so elects. Strictly speaking, standing in default is not an admission of liability but, rather, an election on the part of the defaulting defendant not to controvert the allegations of the petition as to liability. There still remains the question of damages, as to which the defaulting party has the right to trial by jury, and the defaulting party may minimize or completely defeat the action by showing there was no damage. Sec. 1077, R. S. 1929; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A. L. R. 930; State ex rel. v. Brown, 224 Mo.App. 844, 23 S.W.2d 1092. (d) Where master and servant are sued jointly for tort committed by the servant, and the servant stands in default, a plaintiff will not be permitted to unnecessarily prove the allegations of the petition as against the servant and thus by subterfuge inject into the record admissions the servant made against his interests where they can serve no useful purpose, he having admitted liability, but can only serve to prejudice the master's defense. Shannon v. Del-Home Light Co., 43 S.W.2d 872; Kurz v. Greenlease Motor Car Co., 52 S.W.2d 498, certiorari quashed State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638. (3) Inadequate verdict against one defendant who may be legally liable without the other defendant being liable constitutes no valid reason for setting aside the verdict in favor of the defendant held not liable. Stotler v. C. & A. Railroad Co., 200 Mo. 107, 98 S.W. 509; State ex rel. v. Haid, 325 Mo. 532, 29 S.W.2d 714; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A. L. R. 930.

All the Judges concur.

OPINION

PER CURIAM

This is an action for $ 60,000 damages for personal injuries. On May 9, 1931, plaintiff was a passenger riding with her husband in the cab of his one-half ton truck about ten-thirty in the evening eastwardly along Van Horn Road, which road is a part of the State highway system in Jackson County connecting Kansas City and Independence. They were driving home. It had been raining and at the time it was misting. On the south side of Van Horn Road at its intersection with Hardy Avenue, defendant National Refining Company, hereinafter referred to as the "company" maintained a gasoline filling station which was in charge of its employee Earl Howell. On that evening C. H. Stinnett with a companion, pushed his one and one-half ton coal truck into the filling station and purchased some gasoline. After the purchase the engine of the coal truck would not start, whereupon Stinnett and his companion, with the help of Howell, the filling station attendant, pushed Stinnett's truck from the filling station premises onto the highway and eastwardly along the highway toward the top of a slight rise after gaining which the truck was to coast down the opposite descending grade. Plaintiff charges that at the time Howell and the others were pushing Stinnett's truck onto and...

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