Jackson v. Scott County Milling Co.

• Decision Date: 05 July 1938
• Docket Number: No. 5898.,No. 5897.,5897.,5898.
• Citation: 118 S.W.2d 1054
• Parties: JACKSON v. SCOTT COUNTY MILLING CO. et al. SAME v. STURGEON.
• Court: Missouri Court of Appeals

118 S.W.2d 1054

JACKSON v. SCOTT COUNTY MILLING CO. et al.

SAME v. STURGEON.

No. 5897.

No. 5898.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

"Not to be published in State Reports."

Action by H. L. Jackson against the Scott County Milling Company, Fred L. Sturgeon, and another for injuries sustained when a school bus in which plaintiff was riding was sideswiped by a truck. Verdict and judgment for plaintiff except as to first-named defendant, and plaintiff and second-named defendant appeal.

Affirmed.

Blanton & Montgomery, of Sikeston, and Stephen Barton, of Benton, for appellant Jackson.

William Oliver, of Chaffee, for appellant Sturgeon.

Bailey & Bailey, of Sikeston, Oliver & Oliver, of Cape Girardeau, and Bishop & Claiborne and George E. Heneghan, all of St. Louis, for respondent Scott County Milling Co.

ALLEN, Presiding Judge.

This is an action for damages for personal injuries by H. L. Jackson against Allen Wade, Fred Sturgeon and the Scott County Milling Company. The plaintiff alleged that he sustained injuries when a school bus in which he was a guest was sideswiped by a truck owned by Sturgeon and driven by his employee, Wade. The truck was transporting products of the Scott County Milling Company at the time of the collision.

This is a companion case to the cases of Wooldridge v. Scott County Milling Company et al., Mo.App., 102 S.W.2d 958 and Kneezle v. Scott County Milling Company et al., Mo.App., 113 S.W.2d 817, in which judgments were affirmed against all three defendants.

In the instant case the jury returned a verdict in favor of Jackson for $250 against the defendants Wade and Sturgeon, but found in favor of the defendant Scott County Milling Company. The plaintiff appeals from the judgment in favor of the Scott County Milling Company and Sturgeon appeals from the judgment rendered against him. The cross appeals are here consolidated.

On the trial of the case no instructions were asked or given on behalf of the defendants. The plaintiff's main instruction hypothesized his theory of liability which was, in substance, that Sturgeon owned certain trucks which were used to haul the products of the Scott County Milling Company and that the trucks were operated in violation of the Public Service Commission Laws (Laws of Mo.1931, pp. 304-316, Mo. St.Ann. § 5264 et seq., p. 6679 et seq.) relating to trucks operating as common carriers without procuring a certificate of public convenience and necessity. That the Scott County Milling Company with full knowledge of this fact entered into an agreement with Sturgeon to haul its products over the highways of the state in violation of the law and that while so operating the truck driven by Wade negligently sideswiped the school bus in which the plaintiff was riding. While the word "conspiracy" is not used in the instruction that was the basis upon which it was sought to impute the negligence of Wade as driver, and Sturgeon as owner or operator, to the Scott County Milling Company. After hypothesizing the facts which if found by the jury would constitute negligence as to Wade and Sturgeon and a conspiracy and resulting liability as to Sturgeon and the Scott County Milling Company the instruction concluded as follows:

"* * * then your verdict must be for the plaintiff, and against all three defendants."

The plaintiff's contention is that the court's instructions constitute the law of the case, and whether they are correct or incorrect, the jury is bound to follow them and if they fail to do so the complaining party is entitled to a new trial. As applied to the instant case he contends that the jury disregarded the court's direction as to the law when they brought in a verdict against the two individual defendants and in favor of the Scott County Milling Company and that therefore the trial court was in error in not granting him a new trial. It is obvious that the jury did not follow the court's direction that if they found for the plaintiff they should return a verdict against all three defendants. But it does not follow, even though the law is as the plaintiff states, that he is entitled to a new trial.

The thing complained of by the plaintiff and the wrong which injured him was the negligence of Wade in the operation of the truck, for which, of course, Wade was liable. The defendant Sturgeon was liable for Wade's negligence because he was the owner of the truck and Wade's employer or master at the time of the collision. It was not contended by the plaintiff that the Scott County Milling Company was negligent, nor that it was liable for Sturgeon's and Wade's negligence by reason of the relationship of master and servant, nor because of any agency relationship. But it was sought to fasten liability on it by imputing their negligence by reason of its having entered into a conspiracy with Sturgeon to do an unlawful act, to-wit; violate the laws pertaining to the operation of motor trucks as common carriers as was successfully done in the Wooldridge and Kneezle Cases, supra. And, as in those cases, it may be said that the plaintiff's evidence made a jury question as to whether or not the milling company was guilty of having so conspired with Sturgeon. And in considering this case and particularly the plaintiff's complaint of the jury's refusal to follow his main instruction it is well to bear in mind certain fundamentals with reference to the law of conspiracy.

In the first place a "conspiracy" is an agreement to do an unlawful act, or a lawful act in an unlawful manner. Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526. And in the doing of the act or thing agreed upon the act of each individual conspirator is the act of all the conspirators. Wooldridge v. Scott County Milling Co., supra; McCarty v. Hemcker, Mo.App., 4 S.W.2d 1088; Browning v. Browning, 226 Mo.App. 322, 41 S.W.2d 860.

But when the thing complained of is a tort—the negligent operation of a truck—the sole purpose of alleging and proving a conspiracy is to impute the negligent operation of the truck to all those in the conspiracy. Wooldridge v. Scott County Milling Co., and Kneezle v. Scott County Milling Company, supra. While the combination or conspiracy in itself may be unlawful yet the plaintiff could not complain of that so as to recover damages until some act had been done which injured him. When the act is done the plaintiff may recover any damages he may sustain from the actual wrongdoer and if he prove a conspiracy he may recover his damages from all who were shown to be in the conspiracy. The rule with reference to such recovery is well stated in Medich v. Stippec et al., 335 Mo. 796, 73 S.W.2d 998, loc. cit. 1001, as follows:

"It is the generally recognized rule that if a plaintiff fails in the proof of conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the wrong without such agreement. In such case the charge of conspiracy may be considered mere surplusage, not necessary to be proved to support the action, and proof of the conspiracy is of value chiefly in permitting plaintiffs to hold one party responsible for the acts of another, 12 C.J. p. 584, § 104; for the gist of the action is unlawful injury and not conspiracy. 12 C.J. p. 581, § 100; Hunt v. Simonds, 19 Mo. 583; Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118."

For further application of this rule see, also, Grubbs v. Curry, Mo.App., 72 S.W.2d 863; Holt v. Williams et al., 210 Mo.App. 470, 240 S.W. 864; Aronson v. Ricker, 185 Mo.App. 528, 172 S.W. 641, and 11 Am. Jur. Sec. 59, p. 588.

In some civil actions it may be necessary for the jury to find the existence of a conspiracy before it can find liability and in those instances the jury of necessity could not find a verdict against one defendant, or a master and servant, only— they would have to find against at least two who had conspired to the plaintiff's injury. For, as the plaintiff says, it is impossible for a one man conspiracy to exist. But in tort actions, such as the case at bar, where the conspiracy is used solely for the purpose of imputing negligence to a party who otherwise would not be liable it is inherent in the nature of the action that if the wrong is established and the conspiracy is not that the wrongdoers are liable and the alleged conspirators are not and the jury is entitled to so find and their verdict is not necessarily inconsistent or contrary if they do. And this is true even though the plaintiff relies upon...