Grattan v. Suedmeyer

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 719,129 S.W. 1038
• Parties: GRATTAN v. SUEDMEYER et al.
• Court: Missouri Court of Appeals

129 S.W. 1038

144 Mo. App. 719

GRATTAN v. SUEDMEYER et al.

Springfield Court of Appeals. Missouri.

June 6, 1910.

Motion to Modify Judgment July 7, 1910.

1. MASTER AND SERVANT (§ 302)—INJURIES TO THIRD PERSON—LIABILITY OF MASTER.

If a servant in performing the work of his master injures a person either through malice or negligence, the master is liable; but, if the servant is not doing the work of the master at the time, the master is not liable; and where a servant employed in placing concrete work in the basement of a building is called from the building by the master, who at the time was having a difficulty with a third person, and the servant assaults another person standing by who came to the building with said third person but who was taking no part in the difficulty with the master, the master is not responsible.

2. MASTER AND SERVANT (§ 308)—INJURIES TO THIRD PERSON—RATIFYING ACT OF SERVANT.

The act of a servant in assaulting a third person is not ratified by the master by continuing the servant in his employ and assisting him in the defense of the action brought by the third person.

3. DISMISSAL AND NONSUIT (§ 7)—TIME FOR TAKING NONSUIT.

Under Rev. St. § 639 (Ann. St. 1906, p. 658), providing that the plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the case is finally submitted, and not afterwards, a nonsuit may be taken by plaintiff at any time before the jury retire to consider the verdict, or before the issues of fact are submitted to the court for determination.

4. DISMISSAL AND NONSUIT (§ 44)—"INVOLUNTARY NONSUIT" — NATURE OF PROCEEDING.

An "involuntary nonsuit" is one that is taken by reason of some adverse ruling of the court which prevents a recovery by plaintiff.

5. APPEAL AND ERROR (§ 1061)—HARMLESS ERROR—REFUSAL TO ALLOW NONSUIT.

Where a demurrer to plaintiff's testimony is sustained, it is prejudicial error not to allow plaintiff to take a nonsuit as authorized by Rev. St. § 639 (Ann. St. 1906, p. 658), although the demurrer was properly sustained, as the purpose of taking a nonsuit is to put plaintiff in a position to bring another action should he wish to do so and be able to furnish more proof.

6. DAMAGES (§ 216)—MEASURE OF DAMAGES— INSTRUCTIONS.

In an action for an assault, an instruction that in assessing plaintiff's damages the jury should take into consideration the amount and value of time, if any, lost by plaintiff in consequence of his injuries, the impairment, if any, of his future earning capacity caused by such injury, and the money expended for nursing, medical attendance, and medicine, if any, by plaintiff on account of said injuries, should have limited the amounts to such sums as were reasonable.

7. TRIAL (§ 252) — INSTRUCTIONS — APPLICATION TO EVIDENCE.

In an action for an assault, an instruction authorizing the recovery of damages for the amount and value of time lost by plaintiff, the impairment of his future earning capacity, and the money expended for nursing, medical attendance, and medicine, is erroneous where there was no evidence upon which to base such damages.

8. ASSAULT AND BATTERY (§ 27)—CIVIL LIABILITY — ACTIONS — ADMISSIBILITY OF EVIDENCE.

Plaintiff and F., representing labor organizations, visited a place where a building was being constructed by nonunion labor with the purpose to prevent nonunion men working on the concrete work. While interviewing the man in charge of the work, F. and the man in charge became involved in a difficulty, and defendant, a laborer, was called upon to come to the assistance of the man in charge, and the laborer on coming up to the men assaulted plaintiff. Held, in an action for damages, that evidence as to the connection of plaintiff and F. with the labor organizations and their authority to represent them was inadmissible.

Appeal from and Error to St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Harry Grattan against Emil Suedmeyer and others. A demurrer to plaintiff's testimony was sustained as to William Suedmeyer and William Suedmeyer, Jr., and judgment was rendered against Emil Suedmeyer. From the judgment plaintiff appeals and Emil Suedmeyer brings error. Transferred from the St. Louis Court of Appeals. Reversed and remanded.

Action for damages for personal injuries resulting from an assault charged to have been made upon plaintiff by defendant Emil Suedmeyer. As to the other defendants, it is charged that defendant William Suedmeyer, Sr., was engaged in building construction on the premises know as Twentieth and Newhouse streets in the city of St. Louis; that on the day of the alleged injury William, Sr., was absent and had left the work in charge of William, Jr.; that William, Jr., precipitated a fight and then called defendant, Emil, to come to his assistance; that he did come, and assaulted, beat, and wounded plaintiff; that William, Sr., afterwards ratified these acts of William, Jr., and Emil by retaining them in his employ and assisting them in their defense of this action. The answer of William, Sr., and Emil was a general denial and plea of self-defense. The answer of William, Jr., was a general denial. Trial by jury, and at the close of plaintiff's testimony defendants, William, Sr., and William, Jr., asked an instruction in the nature of a demurrer to the testimony which the court announced would be given, and stated to the jury that plaintiff could not recover against them, and directed the trial to proceed against Emil, which was done. Plaintiff excepted to the action of the court in giving the instruction in the nature of a demurrer as to defendants William, Sr., and William, Jr., and after the evidence was all in, and while one of plaintiff's attorneys was making the opening argument to the jury, another of plaintiff's attorneys filed a written motion and asked leave to take a nonsuit as to the two defendants William, Sr., and William, Jr., with leave to move to set the same aside. This was refused and exception saved. Verdict was returned in favor of plaintiff and against defendant Emil Suedmeyer, and damages assessed at $500, and by direction of the court verdict in favor of defendants William, Sr., and William, Jr. Plaintiff has appealed from the action of the court in giving the peremptory instruction and in denying him the right to take an involuntary nonsuit as to the two defendants aforesaid, and defendant Emil sued out a writ of error.

These two cases were heard together and will be considered together. The evidence discloses: That William Suedmeyer, Sr., is the father of William, Jr., and Emil. That William, Sr., had the contract to do the concrete work on a building at Twentieth and Newhouse streets, St. Louis, and he and his two sons were performing the labor. They were nonunion men, and plaintiff and one Fitzgerald, representing labor organizations, visited the house where this work was being done on the day of the alleged assault. That Fitzgerald's purpose was to take steps to prevent nonunion men working on the...