Knapp v. Hanley

Citation132 S.W. 747,153 Mo. App. 169
PartiesKNAPP v. HANLEY.
Decision Date29 November 1910
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Harry G. Knapp against Joseph L. Hanley. Judgment for defendant, and plaintiff appeals. Affirmed.

O'Neil Ryan, for appellant. Jones, Jones, Hocker & Davis and H. Chouteau Dyer, for respondent.

REYNOLDS, P. J.

This is the third time that this case has been before this court, the first on appeal by plaintiff, the second on appeal of defendant from an order setting aside a verdict in his favor. See Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; Knapp v. Hanley, 125 Mo. App. 47, 102 S. W. 670. The facts in the case are so fully set out in these reports and are practically as now before us, that we do not consider it necessary to repeat them. There was again a verdict for the defendant, from which the plaintiff has duly perfected an appeal to this court.

The learned counsel for the appellant makes three points upon which he relies for reversal of the present judgment: First, that the verdict is against the law and the evidence and the weight of evidence, and should have been for the plaintiff. We dispose of this point by saying that it has been decided in cases without number, both by our Supreme Court and the appellate courts, that the question of the weight of evidence is for the determination of the trial court, and the appellate courts will not disturb its conclusion on that evidence, unless the verdict is so grossly contrary to the evidence as to demand our interference in the interests of justice, or is entirely unsupported by any evidence of a substantial and probative character. The very frank counsel for appellant concedes this, but urges that the case falls within the first rule. We cannot agree with him. Nor can we say that the verdict is against the law, as that law was given to the jury in the instructions of the court. The verdict is responsive to the issues presented by those instructions. Whether the instructions are correct will be disposed of later when we come to consider the instructions.

The second error assigned is to the action of the court in giving and refusing instructions, and that the instructions are conflicting and misleading and in plain disregard of the opinion of this court, as announced when the case was here on the two former appeals.

Taking up the proposition which goes to the instructions given, we cannot agree with the learned counsel for the appellant in his criticisms as to the correctness of those given. Nor do we think that the instructions given are conflicting, or misleading, or in plain disregard of the opinions of this court, as announced when the case was here on the two former appeals, as claimed by counsel. This case seems to us to lie within a very narrow compass. The amended petition of the plaintiff, upon which this case was last tried, appears to be practically the same as the petition summarized when the case was here before. The defense is now, as then, a general denial. While it is true that it sometimes occurs that parties try their causes on theories that are not altogether in line with the pleadings, and that when that occurs the appellate court holds them to the same theory here as that upon which the case was tried below, no such condition is presented here. The case was tried on the issue tendered by this amended petition and accepted by the general denial. They involved these propositions: First, did Mullikin, the owner of the number of shares of stock involved, on or about the day named, make an agreement with the plaintiff and defendant, wherein and whereby Mullikin agreed that plaintiff and defendant, in consideration of services then being and to be by them rendered for him and in his behalf, in and about the proposed sale of the stock, to pay them for their services one-half of whatever he should realize or receive upon the sale of the stock, over and above the price and sum of $800 per share? In this is involved also the question of the nature of the employment—to place it accurately, was it of such a character as to constitute it a joint employment, the creation of a joint agency? Second, did the plaintiff and the defendant then and there agree to perform those services and to divide equally between themselves all such compensation as Mullikin should pay them therefor? Third, did plaintiff and defendant render the services as aforesaid for Mullikin, resulting in the sale of the stock at the price and sum of $900 per share? On this latter proposition, that is, the sale of the stock at $900 per share, there is no controversy. It was sold, as admitted by all parties, at that figure, being $100 per share more than the $800 which Mullikin demanded as the amount to be realized by him personally on the sale. There is no question over the further fact that upon the consummation of the sale at that figure, Mullikin paid and turned over to defendant Hanley $50 a share, that is $5,350, the one-half of the $100 realized over and above the $800. There is no question as to the demand and refusal to pay as between plaintiff and defendant, so that the point in issue turned on the answers the jury might give to the above propositions, and in order to a correct answer by the jury, that is to say, an answer which the trial court and this court will accept as conclusive on these questions, it was, of course, necessary that the instructions which the court gave were correctly framed.

The test of correctness of instructions lies not in the indulgence of that close analysis which the lawyer in the seclusion of his office and with the aid of his books, and the trial or appellate courts, with the benefit of briefs and arguments of learned counsel before them, give to the instructions, but as to how those instructions will naturally be understood by the average men who compose our juries, on whose judgment on the facts the courts must act. When instructions are so involved as to cloud the real issue and require careful, critical examination on the part of the trial and of the appellate courts to determine exactly what they mean, or to determine what inference can be drawn from them, the very object of instructing a jury is defeated. The question is whether the jury was either misdirected or lacking in proper direction, or so directed as to necessarily confuse them in arriving at a correct solution of these propositions. Tested by...

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    • United States
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    • July 30, 1928
    ...jury. Cases under Point 1; Williams v. Ranson, 234 Mo. 66; Stid v. Railway Co., 236 Mo. 382; Stuart v. Dickinson, 236 S.W. 459; Knapp v. Hanley, 153 Mo. App. 169. (3) The court erred in refusing to give Instruction D-8 requested by the defendant, for the reason that said instruction told th......
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    ...the court must look to the interpretation which would be placed upon its terms by the average men who compose juries. Knapp v. Hanley, 153 Mo. App. 169, 132 S.W. 747; Landon v. United Rys., 237 S.W. 496. (7) The violation of a rule promulgated by an employer which amounts to nothing more th......
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    ...the court must look to the interpretation which would be placed upon its terms by the average men who compose juries. Knapp v. Hanley, 153 Mo.App. 169, 132 S.W. 747; Landon v. United Rys., 237 S.W. 496. (7) violation of a rule promulgated by an employer which amounts to nothing more than an......
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