Goodman v. Allen Cab Co.
| Decision Date | 11 September 1950 |
| Docket Number | No. 41544,No. 1,41544,1 |
| Citation | 232 S.W.2d 535,360 Mo. 1094 |
| Parties | GOODMAN v. ALLEN CAB CO., Inc |
| Court | Missouri Supreme Court |
Arthur U. Simmons, Edwin Rader, Clayton, for appellant.
J. W. Stipelman, Everett Hullverson, Forrest Boecker, St. Louis, for respondent.
Action for $15,000 damages for personal injuries sustained when plaintiff, a pedestrian, came into collision with a taxicab at a street intersection in the city of St. Louis. Verdict and judgment were for defendant, but the trial court sustained plaintiff's motion for a new trial and set the verdict and judgment aside. Defendant has appealed from the order granting the new trial. Laws 1943, p. 390, Sec. 126, Mo.R.S.A. Sec. 847.126.
Plaintiff alleged that defendant was 'engaged in the business of operating taxicabs as a public carrier of passengers for hire'; and that, on or about the 23d day of December 1947, as 'the defendant by and through its agent and chauffeur was operating one of its taxicabs' westwardly on Franklin avenue, it struck and injured plaintiff as he was walking across Franklin avenue going south on the east side of Twelfth street. Various assignments of primary and humanitarian negligence were set forth.
Defendant, after denying generally certain allegations of the petition, alleged 'that the taxicab was, at said time and place being operated by one Warren Schannon who at said time and place was an independent contractor and was not acting as agent for the defendant nor on any business or mission for the defendnat.' Defendant further made various specific assignments of contributory negligence against the plaintiff.
Plaintiff submitted the cause to the jury upon an assignment of primary negligence, towit, that defendant violated an ordinance of the city of St. Louis requiring drivers and operators of vehicles to comply with signals given by electric automatic traffic signals, in that the taxicab was driven westwardly through the intersection by an agent and chauffeur of the defendant taxicab company when the signal 'showed a red light to regulate traffic on Franklin avenue and a green light to regulate traffic on Twelfth boulevard.' The only instruction offered and given on contributory negligence submitted a finding that, 'as said taxicab approached the intersection of Franklin avenue and 12th street, the electric traffic signal was green or 'Go' for westbound traffic, and red or 'Stop' for southbound traffic or pedestrians, and * * * that as the defendant's taxicab was in the act of passing Charles Goodman, that he, Charles Goodman, walked into the right side of defendant's taxicab * * *.' It will not be necessary to review the evidence upon which these submissions were based.
The motion for a new trial was sustained upon ground 8, of the motion, as follows: 'That the court erred in admitting, over the objection and exception of plaintiff, incompetent, irrelevant, immaterial, improper, prejudicial and illegal evidence offered by the defendant.'
Appellant contends that the trial court erred in granting a new trial to plaintiff on the ground assigned, because no such evidence was admitted over plaintiff's objection.
A careful review of the transcript filed in this cause shows that in the trial of the cause substantially all of plaintiff's objections to the introduction of evidence by defendant were sustained. No evidence was admitted over plaintiff's objection. On two occasions plaintiff objected after the witness had answered the question and after the evidence objected to was in the record, but no motion was made to strike out the answers previously made by the witness. Respondent in effect now concedes that no 'incompetent, irrelevant, immaterial, improper, prejudicial and illegal evidence offered by defendant' was received 'over the objection' of plaintiff. The record disclosed no error by the trial court in admitting any evidence over the objection of the plaintiff. No evidence was so admitted.
Respondent, however, contends that the court erred in admitting incompetent and prejudicial evidence which was not objected to; and that for such error the trial court properly granted plaintiff a new trial. We shall subsequently set out the evidence refered to.
In view of the position taken by respondent it is hardly necessary for us to point out that ground 8 of the motion for a new trial, upon which the court based its order granting a new trial, is so general that the order granting the new trial fails to comply with the statutory requirement that the ground or grounds upon which a new trial is granted shall be specified of record. Laws 1943, p. 388, Sec. 115, Mo.R.S.A. Sec. 847.115; Johnson v. Kansas City Public Service Co., Mo.Sup., 228 S.W.2d 796. The ground stated is too general to furnish any information to the parties or to this court concerning the real basis of the trial court's action. Accordingly, under Rule 1.10 of this court, respondent has the burden of supporting the correctness of the court's order. Respondent has assumed that burden. 'This burden is met if the respondent demonstrates that the motion for a new trial should have been sustained on any of the grounds specified in the motion.' Johnson v. Kansas City Public Service Co., supra, and cases there cited.
In this case, apparently, respondent seeks to support the correctness of the trial court's action under Laws 1943, p. 388, Sec 115, Mo.R.S.A. Sec. 847.115, which provides: 'A new trial may be granted for any of the reasons for which new trials have heretofore been granted.' Respondent points to matters appearing in the record, not raised in the motion for a new trial and not assigned by the trial court as the ground upon which the motion was in fact sustained and the new trial granted. See, Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 270(1, 2) and cases there cited.
The evidence which respondent contends was erroneously admitted was offered and received in evidence without objection. It was offered in support of defendant's pleaded defense that the driver of the taxicab in question at the time and place mentioned was not the agent and servant of defendant, but was an independent contractor. This evidence tended to show that the driver of the taxicab, which struck and injured plaintiff, did not work for defendant on the day plaintiff received his injuries; that this driver had never worked for defendant; that defendant was engaged in the business of renting cabs to drivers who had taxicab licenses; that the rental rate was $5.25 for eleven hours use of the cab; that the cab in question was rented to the driver in question on the day that plaintiff was injured; that drivers were required to pay the full rental charge regardless of the amount taken in in fares; that defendant received calls for cabs on defendant's telephones and referred the calls to the various drivers renting cabs from it; that the drivers were not required to answer the calls, unless they desired to do so; that defendant did not attempt to direct the drivers who rented its cabs; that they could drive any place they pleased; and that defendant maintained the cabs against ordinary wear and tear and also furnished oil, but the drivers furnished the gasoline for the operation of the cabs and were supposed to pay for all damages to the cabs while in their possession. Evidence on behalf of both the plaintiff and defendant showed...
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