Jackson v. Farmers Union Livestock Com'n

• Citation: 181 S.W.2d 211,238 Mo.App. 449
• Parties: Fred G. Jackson, Respondent, v. Farmers Union Livestock Commission, a Corporation, et al., Appellant
• Decision Date: 05 June 1944
• Court: Court of Appeals of Kansas

181 S.W.2d 211

238 Mo.App. 449

Fred G. Jackson, Respondent, v. Farmers Union Livestock Commission, a Corporation, et al., Appellant

Court of Appeals of Missouri, Kansas City

June 5, 1944

Appeal from Harrison Circuit Court; Hon. V. C. Rose, Judge.

Reversed and remanded.

Strop & Strop and Livengood & Weightman for appellants.

(1) Plaintiff cannot maintain this action in Nodaway County, or Harrison County, Missouri, where the case went on a change of venue since all the evidence shows that none of the alleged warranties were made in said Nodaway County. 55 C. J., p 658, par. 673; Massey-Harris v. Quick, 42 S.W.2d 47 50; Oak Lawn Sugar Co. v. Sparks Bros. Mule Co., 159 Mo.App. 496, 503; Flint Walling Mfg. Co. v. Ball, 43 Mo.App. 504, 509-510. (2) Defendants are domestic corporations with offices in Buchanan County, Missouri, and were served with process in the latter county, no jurisdiction was acquired over the defendants. Sec. 874, R S. Mo. 1939; Motherstadt v. Harry Neiuman, Inc., Motor Cars, 217 S.W. 591, 593; Also see cases under Point (1), supra. (3) The conduct of plaintiff's attorney in his opening statement in referring to an attempted compromise between the parties is prejudicial and constituted reversible error and the trial court should have discharged the jury. Starnes v. St. Joseph Ry., Light, Heat & Power Co., 22 S.W.2d 73, 78; Starnes v. St. Joseph Railway, Light, Heat & Power Co., 52 S.W.2d 852; Charles Glover v. Atchison, Topeka & Santa Fe Ry. Co., 130 Mo. 563, 575. (4) The conduct of plaintiff's counsel in his closing argument in comparing the defendants to Jesse James was so prejudicial and inflammatory that the refusal of the court to discharge the jury constitutes reversible error. Monroe v. Chicago & Alton R. R. Co., 249 S.W. 644, 646. (5) Plaintiff's Instruction A purports to cover the entire case, directs a verdict and assumes controverted facts which should have been left for the determination of the jury, and the giving of the same constitutes reversible error. Daniel v. Artesian Ice & Cold Storage Co., 45 S.W.2d 548, 552 and 553; McCombs v. Ellsberry, 85 S.W.2d 135, 139; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 153. (6) Plaintiff's Instruction A purports to cover the entire case and directs a verdict and omits essential facts necessary to be found in order for plaintiff to recover and the giving of said instruction constitutes reversible error. Davis v. Chas. F. Luehrman Hardwood Lbr. Co., 246 S.W. 66, 69; Grayson-McLeod Lbr. Co. v. P. Heibel & Sons Mfg. Co., 200 S.W. 96, 97; Dugdale Packing Co. v. Lowden, 160 S.W.2d 832, 838; Hunt v. Sanders, 281 S.W. 422, 425; Myers v. Kilgen, 177 Mo.App. 724, 734, 735. (7) The instructions given by the court for plaintiff are improper and prejudicial for the reason that they gave undue prominence to one single part of the evidence with respect to the unpaid purchase price of the sheep by mentioning said purchase price nine times in said instructions. Fantroy v. Schirmer, 296 S.W. 235, 238; Reeves v. Lutz, 191 Mo.App. 550, 559; Barr v. Kansas City, 105 Mo. 550, 557-558; Moffett v. Butler Mfg. Co., 46 S.W.2d 869, 873. (8) Plaintiff's instruction E on the credibility of witnesses is erroneous because it is unintelligible and misleading and includes matters not in issue in the case. Eisenbarth v. Powell Bros. Truck Lines, 125 S.W.2d 899, 901; Poague v. Malloy, 235 S.W. 491, 493; Wendling v. Bowden, 252 Mo. 647, 694. (9) Defendants being mere factors were entitled to have the jury determine the question of their personal liability on the alleged warranties. Defendants' Instruction 6 was improperly refused. 3 C. J. (2), p. 119, par. 215 (a); Dale v. Pierson-Brewer Commission Co., 160 Mo.App. 314, 318; Schell v. Stephens, 50 Mo. 375; Hunt v. Sanders, 281 S.W. 422, 425; Davis v. Chas. F. Luehrman Hardwood Lbr. Co., 246 S.W. 66, 69; Grayson-McLeod Lbr. Co. v. P. Heibel & Sons Mfg. Co., 200 S.W. 96, 97; Myers v. Kilgren, 177 Mo.App. 724, 734, 735. (10) The refusal of the court to give defendants' Instruction 7 was erroneous. 57 C. J., pp. 517-518, pars. 184-185; Wharton v. King, 69 Ala. 365, 366; Secs. 923 and 929, R. S. Mo. 1939; Rhodus v. Gealtey, 147 S.W.2d 631, 639; Friend Lumber Co. v. Armstrong Building Co., 276 Mass. 361, 177 N.E. 794, 80 A. L. R. 599. (11) The giving of plaintiff's Instruction B is reversible error. Said instruction erroneously required the plaintiff to find as the measure of damages the difference in the value of the sheep as warranted and the actual value of said sheep and fails to limit the time for fixing the actual value to the time of the sale or delivery of said sheep. 55 C. J., p. 871, par. 856; Zumbrunn v. Royal Typewriter Co., 253 S.W. 59, 60; Henry W. Kerr v. Luke M. Emerson, 64 Mo.App. 159, 160; McCormick Harvesting Machine Co. v. Charles Heath, 65 Mo.App. 461, 463. Said instruction fails to limit the amount of plaintiff's damages to the specific amounts of damages alleged in the petition as special damages. Smith v. Chicago Ry. Co., 170 S.W. 327, 328; Davis v. City of Independence, 49 S.W.2d 95, 102; Leingang v. Geller, Ward & Hastings Hdw. Co., 73 S.W.2d 256, 262, 263; Paula F. Finley v. United Rys. Co. of St. Louis, 238 Mo. 6, 15. Said instruction is erroneous in that it permits the jury to award damages on items not shown by the evidence. Smith v. Chicago Ry. Co., 170 S.W. 327, 328; Edmonston v. Kansas City, 57 S.W.2d 690, 692; Gratton v. Suedmeyer, 144 Mo.App. 719, 726, 727; Evans v. Massman Const. Co., 122 S.W.2d 924, 936; Huddleston v. Ozark Acceptance Corp., 125 S.W.2d 81, 84; Markey v. Kansas City Southern Ry. Co., 90 S.W.2d 409, 413. Said instruction is erroneous for the reason that it in effect permits the jury to give plaintiff equitable relief by the cancellation of his note and mortgage. Said instruction is erroneous in that it does not require the jury to take into consideration the amounts plaintiff received from the sale of the sheep and wool. 55 C.J., p. 820, par. 802; Brown v. Welden, 99 Mo. 564, 568; Crenshaw v. Looker, 185 Mo. 375, 388; Sinnamon v. Moore, 161 Mo.App. 168; Wayne Tank & Plumbing Co. v. Evans, 15 S.W.2d 985; Jones v. Norman, 24 S.W.2d 191, 194; Conroys, Inc., v. Brooks, 50 S.W.2d 708, 710; Sturgis v. Whysler, 145 Mo.App. 148, 155; First Methodist Church of Poplar Bluffs v. Berryman, 261 S.W. 73; Sellner v. Meyer, 240 S.W. 247; Ebel v. Roller, 21 S.W.2d 214; Schurtz v. Cushing, 146 S.W.2d 591, 594. (12) It was error to permit the introduction in evidence of statements of one Frank Hudson, the alleged agent of defendants, to matters occurring after the sale had been consummated. Said statements were hearsay and not binding on defendants. Shelton v. Wolf Cheese Co., 93 S.W.2d 947, 953, 954; Carson v. St. Joseph Stock Yards Co., 167 Mo.App. 443; Redmon v. Railroad, 185 Mo. 1, 12. (13) Plaintiff's instructions G and H are in hopeless conflict with plaintiff's Instruction B and confusing and misleading and the jury therefore had no proper instruction as to the verdict to be returned by them. Lee v. Shryack-Wright Grocery Co., 53 S.W.2d 406, 408. Plaintiff's instructions G and H are erroneous because they purport to be forms of verdicts and include therein matters which should be no damage instructions only. Jones v. Norman, 24 S.W.2d 192, 195; Beckley v. Hickerson, 257 S.W. 822, 827.

J. B. Beevers, E. L. Redman and C. B. DuBois for respondent.

(1) The court had jurisdiction of the subject-matter and of the person of the defendants, and properly overruled defendants' instructions 1, 2, 3, 4 and 5, in the nature of demurrers. Sec. 874, R. S. Mo. 1939; Lewis v Thompson, 231 Mo.App. 321, 96 S.W.2d 938; Mayo et al. v. Price Co., 218 S.W. 932, 933; Peak v. International Co., 186 S.W. 574; Moherstadt v. Newman, 204 Mo.App. 619, 217 S.W. 591; Wood v. Saler, 67 S.W.2d 826. Defendants waived jurisdiction over their person by filing motions to strike and demurrer to plaintiff's petitions. Walsh v. Pulitzer Co., 183 S.W. 587; State ex rel. Klohr v. Edwards, 94 S.W.2d 99, 102; Auchincloss v. Harris, 159 S.W.2d 799; State ex rel. Goodson v. Hall, 72 S.W.2d 499, 502; Mertens v. McMahon, 66 S.W.2d 127, 93 A. L. R. 1285. Defendants applied for and obtained a change of venue from the Circuit Court of Nodaway County, Missouri, to Harrison County, Missouri, and thereby waived jurisdiction over their person. State ex rel. Goodson v. Hall, 228 Mo.App. 766, 72 S.W.2d 499; Julian v. Kansas City Star, 209 Mo. 35; 46 Mo. Law Bulletin, 30. (2) The court had jurisdiction of the subject-matter and the parties to try the cause of action in equity pleaded in count (2) of plaintiff's petition. Cancellation of note and chattel mortgage of plaintiff to defendants is proper relief under count (2) of plaintiff's petition, and the court had jurisdiction on the same petition as count (2). Sec. 874, R. S. Mo. 1939, and cases cited under (1). The court sitting as a court in equity had jurisdiction to hear the cause of action for cancellation and equitable relief on count (2) of plaintiff's petition. 9 C. J. 1159, 1160; Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87, 91; Hoberg v. Haessig, 90 Mo.App. 516; Githens v. Butler Co. (Mo.), 165 S.W.2d 650. (3) The court sitting as a court in equity tried the issues under count (2) and its decree on count (2) being unchallenged became and is a final judgment and decree and is not subject to review on this appeal. Hogan v. K. C. Co., 62 S.W.2d 856, 859; Bank v. Graham, 76 S.W.2d 376, 382; Wallace v. Brown, 165 S.W.2d 408; Massey Co. v. Rich, 122 S.W.2d 858, 867; Berry v. Rood, 209 Mo. 662; Kanevs v. Benz, 77 S.W.2d 855; Kansas City Company v. Haake, 53 S.W.2d 891. (4, 5) It was not error for the court to refuse to discharge the jury on account of alleged improper statement and argument of plaintiff's counsel. ...