Grattan v. Suedmeyer
| Decision Date | 06 June 1910 |
| Parties | HARRY GRATTAN, Appellant and Defendant in Error, v. WILLIAM SUEDMEYER et al., Respondents, and EMIL SUEDMEYER, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon Jesse A. McDonald, Judge.
REVERSED AND REMANDED.
STATEMENT.--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 known as 20th and Newhouse streets in the city of St. Louis. That on the day of the alleged injury, William, Sr., was absent and left the work in charge of William, Jr. That William, Jr., precipitated a fight and then called defendant, Emil, to come to his assistance, and that he did come, and assaulted, beat and wounded plaintiff. That William, Sr., afterward 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 New-house streets, St. Louis, and he and his two sons were performing the labor. They were non-union 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 non-union men working on the concrete work, and that plaintiff merely accompanied Fitzgerald. Fitzgerald had talked with William, Jr., in the basement of the building and at the time of the trouble was in the yard talking to the contractor. William, Jr., came out and he and Fitzgerald got into a fight. That William, Jr., called to his brother Emil to come to his assistance; he did so and struck plaintiff and inflicted serious injury upon him. The evidence as to the details of the fight is conflicting. Plaintiff and Fitzgerald contending that defendants, William, Jr., and Emil were the aggressors, and defendants contending that they acted in selfdefense. Plaintiff testified that he was taking no part in the fight, but was merely looking on when Emil struck him.
Judgment reversed and cause remanded.
J. R. Nicholson and C. J. Anderson for appellant and defendant in error.
(1) The court erred in refusing to submit the question of liability on the part of William Suedmeyer, Sr., and William Suedmeyer, Jr., to the jury. Canfield v. Railroad, 59 Mo.App. 354; Carrigan v. Duenckel, 50 Mo. 104; Perkins v. Railroad, 55 Mo. 201; Eckert v. Transfer Co., 2 Mo.App. 36; Heahl v. Railroad, 119 Mo. 325; Collette v. Rebori, 107 Mo.App. 711; Greer v. Bank, 128 Mo. 559. (2) The court erred in refusing to permit plaintiff to take an involuntary nonsuit. This should be allowed at any time before final submission to the jury. Wood v. Nortman, 85 Mo. 298; Templeton v. Wolf, 19 Mo. 101; Lawrence v. Sheve, 26 Mo. 492; Revised Statutes 1899, sec. 639.
Perry Post Taylor and Emil Mayer for respondents and plaintiff in error.
(1) Although there was not a particle of evidence as to the value of plaintiff's loss of time or as to his earning capacity, yet the jury was instructed to take into consideration "the amount and value of time lost by plaintiff." This was error. Davidson v. Transit Co., 211 Mo. 320; Stoetzle v. Sweringen, 96 Mo.App. 592; Moellmann v. Lumber Co., 114 S.W. 1026; Mammerberg v. Street Ry., 62 Mo.App. 568. (2) There was no evidence that plaintiff had expended any money for nursing or of the value of such nursing, or for medicines. To instruct the jury to take those items into consideration was erroneous. Heidbrinck v. Railway, 113 S.W. 224; Howard v. Railroad, 110 Mo.App. 582; Knight v. Kansas City, 113 Mo.App. 565. (3) Emil Suedmeyer, when he struck the blow and caused injury to the appellant, was not acting within the scope of his employment, therefore his employer, William Suedmeyer, Sr., is not liable for the act. Collette v. Rebori, 107 Mo.App. 711; Snyder v. Railroad, 60 Mo. 419; Jackson v. Railroad, 87 Mo. 423; Haehl v. Railroad, 119 Mo. 339; Hardeman v. Williams, 10 L.R.A. (N. S.) 653; 26 Cyc. 1539; Anderson v. Diaz (Ark.), 92 S.W. 861; Farber v. Railroad, 32 Mo.App. 381; Hartman v. Muehlebach, 64 Mo.App. 575. (4) No error was committed by the court in refusing to permit the plaintiff to take a nonsuit as to the defendants, William, Sr., and William, Jr., at the time they first asked such leave. Lawrence v. Shreve, 26 Mo. 493; Publishing Co. v. Gorden, 173 Mo. 139, 73 S.W. 156; McLean v. Stuve, 15 Mo.App. 320.
The plaintiff assigns as error the action of the court in directing a verdict in favor of defendants William Suedmeyer, Sr., and William, Jr., and in refusing plaintiff permission to take a nonsuit.
The striking of plaintiff was by Emil Suedmeyer and the theory upon which plaintiff seeks to hold the other defendants responsible therefor is that he was at the time their servant; William, Sr., being the employer and William, Jr., being at the time the foreman in charge of the work.
If the servant, in performing the work of the 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 of the injury, but is, at that particular time, following his own inclinations aside from his master's work, the master is not liable, and this is the rule by which to test the master's liability. [Gerretson v. Dunckel, 50 Mo. 104; Canfield v. C. R. I. & P. R. R., 59 Mo.App. 354; Collette v. Rebori, 107 Mo.App. 711, 82 S.W. 552; Haehl v. Wabash R. R., 119 Mo. 325, 24 S.W. 737.] In Garretson v. Dunckel the court said, The work of Emil, who struck and injured plaintiff, was to assist in placing concrete work in the basement of the building. He was not instructed to remove or punish persons who might come upon the premises and his act in assaulting plaintiff had no connection whatever with his duties as a laborer in the concrete work. It is clear that neither William, Sr., nor William, Jr., could be held responsible for the act of Emil, on the ground that he was employed by them and committed the assault in the line of his employment.
It is contended that William, Jr., is liable because he called Emil and was directly responsible for the assault in that way. This position is also untenable. At the time the call was made William, Jr., and Fitzgerald were engaged in a difficulty, and the most that can be made out of this call to Emil is that he was asking Emil to assist him in the difficulty with Fitzgerald, and if plaintiff's testimony is to be believed, he, the plaintiff, was at that time taking no part in the difficulty, but was a mere onlooker, and if under these circumstances Emil turned aside and assaulted plaintiff, he must have done so of his own volition, and not in response to the call of his brother.
It is further contended that defendant, William, Sr., should be held responsible because he has ratified the act by continuing defendant, Emil, in his employ, and assisting him in the defense of this action. Can it be said that a father is to be held responsible for the tort of his son because...
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