Hein v. Peabody Coal Co.

• Citation: 85 S.W.2d 604,337 Mo. 626
• Parties: William Hein v. Peabody Coal Company, Appellant. William Hein v. Robert A. Cody, Appellant
• Decision Date: 30 July 1935
• Court: United States State Supreme Court of Missouri

85 S.W.2d 604

337 Mo. 626

William Hein v. Peabody Coal Company, Appellant.

William Hein v. Robert A. Cody, Appellant

Supreme Court of Missouri

July 30, 1935

Rehearing Denied July 30, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge.

Affirmed.

Leahy Saunders & Walther, Harold F. Hecker, Marion W. Smith and Lyon Anderson for appellant.

(1) Where there is no showing that the automobile, being driven at the time of the accident by a person in the general employ of the owner, is being used under conditions resembling those which normally attend its use in connection with the master's business, there is no basis for the presumption that the agent is at the time acting within the scope of his employment. 6 Labatt, Master & Servant, sec. 2281-A. (2) The presumption, if any, that Cody was on business for appellant, which arose upon proof of his general employment and proof of the ownership of the car, disappeared when defendant produced its evidence that Cody was on a mission of his own. Guthrie v. Holmes, 272 Mo. 215; State ex rel. Kurtz v. Bland, 64 S.W.2d 638; Hays v. Hogan, 273 Mo. 1; Bolman v. Bullene, 200 S.W. 1068; Horn v. Rhodes, 317 Mo. 572; Vallery v. Hesse Bldg. Material Co., 211 S.W. 95; Griffey v. Koehler, 50 S.W.2d 693; Murphy v. Loeffler, 327 Mo. 1237, 39 S.W.2d 777; Murphy v. Tombrink, 25 S.W.2d 133; Glassman v. Harry, 182 Mo.App. 304; Coughtman v. Glidewell, 210 Mo.App. 367, 239 S.W. 574; Ursch v. Herer, 210 Mo.App. 129. (3) The alleged declarations claimed to have been made by Cody to plaintiff's wife the day following the accident were not binding on appellant, and cannot be considered in passing upon the question as to whether the appellant's requested instruction in the nature of a demurrer to the evidence should have been given. State ex rel. Kurtz v. Bland, 64 S.W.2d 638; State ex rel. Vesper-Buick Auto Co. v. Daues, 19 S.W.2d 700; Barker v. Railroad, 126 Mo. 143; Koenig v. Ry. Co., 173 Mo. 721; Redmond v. St. Ry. Co., 185 Mo. 1; Frye v. Ry. Co., 200 S.W. 377; Renfro v. Central Coal & Coke Co., 19 S.W.2d 763; Shannon v. Del-Home Light Co., 43 S.W.2d 872. (4) Plaintiff's Instruction 1 was erroneous in that it was highly confusing and misleading. Rytersky v. O'Brine, 70 S.W.2d 538. (5) Plaintiff's Instruction 1 was erroneous for the reason that it predicated liability upon Cody's failure to slacken his speed and swerve and ignored the question whether he would have thereby injured or imminently threatened the safety of others. Spoeneman v. Uhri, 60 S.W.2d 9. (6) The verdict of the jury was excessive.

Eagleton, Henwood, Waechter & Yost and Frank P. Aschemeyer for respondent.

(1) The instruction of defendant Peabody Coal Company, in the nature of a demurrer to the evidence, requested at the close of all the evidence, was properly refused because: (a) The evidence is amply sufficient to justify the finding that Cody was en route to the meeting of the Coal Institute at the request and insistence of his employer, and was thus acting within the scope of his employment at the time of the accident. (b) The evidence is sufficient to raise the presumption that Cody was on business for appellant. The evidence of appellant to the contrary is not positive, unequivocal and unimpeached and is not sufficient to overcome such presumption. O'Malley v. Heman Construction Co., 255 Mo. 386, 164 S.W. 565; Brucker v. Gambaro, 9 S.W.2d 918; Barz v. Fleischman Yeast Co., 308 Mo. 288, 271 S.W. 361; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; State ex rel. Kurz v. Bland, 64 S.W.2d 638; Robb v. Bartels, 263 S.W. 1013; Staley v. Lawler, 27 S.W.2d 1039; Murphy v. Loeffler, 327 Mo. 1244, 39 S.W.2d 550; Benson v. Smith, 38 S.W.2d 748. (2) Plaintiff's Instruction 1 is proper in form and was properly given. (a) The instruction must be construed as a whole and considered in its entirety. When so viewed it is clear and unequivocal and was properly given. Warsham v. Lewis, 281 S.W. 82; Boles v. Hendrickson, 290 S.W. 638; Burton v. Phillips, 7 S.W.2d 712; Taylor v. Scherpe & Koken Arch Iron Co., 133 Mo. 365, 34 S.W. 581. (b) The instruction is phrased in the conjunctive and required the jury to find the position of peril to exist at and prior to the time of the collision. The jury was bound, therefore, to find the existence of the position of peril prior to the time of the collision so that, at most, the use of the word "at" is surplusage. Davis v. Roth, 65 S.W.2d 172; Brown v. Callicotte, 73 S.W.2d 190. (c) There was no evidence upon which the jury could have found that Cody could not avoid injury to respondent without endangering the safety of others. In any event, the instruction required a finding that Cody could avoid injuring respondent with safety to himself and his automobile. This made unnecessary the further requirement that he not endanger others since, under the circumstances, a collision with any other automobile, so as to endanger others, would have caused damage to Cody's car and injury to himself. Brown v. Callicotte, 73 S.W.2d 190. (d) The instructions must be read together and construed as a whole. If there was any ambiguity in plaintiff's Instruction 1 (and there was none), it is cured by defendants' instructions 3 and 4, since these instructions together properly declared the law. Schultz v. Schultz, 316 Mo. 728, 293 S.W. 105; McDonald v. Kansas City Gas. Co., 59 S.W.2d 37; Sipp v. Daniel, 284 S.W. 862. (3) The judgment is reasonable in amount and should not be disturbed. (a) The evidence on this subject should be taken in its light most favorable to respondent. Manley v. Wells, 292 S.W. 67; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 335. (b) It was the peculiar province of the jury to determine the extent of respondent's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co., 227 S.W. 79; Maloney v. United Rys. Co., 237 S.W. 516; Sacre v. Ry. Co., 260 S.W. 88. (c) The trial court, in supervising the amount of the verdict, exercised a discretionary power which should not be reviewed on appeal except in case of obvious abuse. 4 C. J., pp. 830, 871-873; Goetz v. Ambs, 27 Mo. 34; Gurley v. Railroad Co., 104 Mo. 233; Laughlin v. Rys. Co., 275 Mo. 472. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., supra; Grott v. Shoe Co., 2 S.W.2d 785. (e) The award is reasonable as compared with judgments upheld in similar cases. Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480; Bond v. Ry. Co., 315 Mo. 987, 288 S.W. 777; Rose v. Mo. Dist. Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562; Kepner v. Ry. Co., 15 S.W.2d 825; Martin v. Ry. Co., 329 Mo. 729, 46 S.W.2d 149.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for damages for personal injuries sustained when plaintiff, William Hein, was struck, as he was walking across Terry Avenue in the city of St. Louis, by an automobile owned by the corporate defendant, Peabody Coal Company, and driven by the defendant Robert A. Cody, an employee of that company. The cause was tried in the Circuit Court of the City of St. Louis resulting in a verdict for plaintiff, against both defendants, assessing damages in the sum of $ 27,000. As a condition to overruling defendants' joint motion for a new trial the trial court ordered a remittitur of $ 2500 which plaintiff made whereupon the motion for a new trial was overruled and judgment, in favor of plaintiff, entered for $ 24,500 from which defendants appealed. Though granted and here docketed, briefed and presented as separate appeals, that of defendant Peabody Coal Company as No. 32,525 and defendant Cody's appeal as No. 32,526, our procedure is to treat and rule the appeals as one case. [Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839; Morton v. Southwestern T. & T. Co., 280 Mo. 360, 217 S.W. 831; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390; Hugo Ruehling v. Pickwick Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602.]

The petition assigns several grounds of primary negligence and also charges a violation of, or negligence under, the humanitarian rule. The separate, but identical, answers are general denials followed by allegations of contributory negligence on the part of plaintiff. However, plaintiff abandoned the charges of primary negligence and tried and submitted the case to the jury on the sole theory that defendant Cody, the driver of the automobile which struck and injured plaintiff, was guilty of negligence under the humanitarian rule. The liability of the corporate defendant is wholly dependent upon the applicability of the doctrine of respondeat superior.

Neither defendant, as appellant, asserts here that plaintiff did not adduce substantial evidence making a case for the jury under the humanitarian rule but appellant coal company contends that the trial court erred in refusing its instruction in the nature of a demurrer to the evidence, tendered at the close of all the evidence in the case, on the ground that no substantial evidence was adduced tending to show that Cody was "acting within the scope of his duties as" its "agent," that is that he was acting within, or in the course of, his employment by it at the time its automobile, which he was driving, struck and injured plaintiff. If the contention is sustained the judgment must, necessarily, be reversed as to the corporate defendant; on the other hand if there is substantial evidence in the record to warrant and...