Maher v. Donk Bros. Coal & Coke Co.

• Decision Date: 13 September 1929
• Docket Number: 28058
• Citation: 20 S.W.2d 888,323 Mo. 799
• Parties: John Maher v. Donk Bros. Coal & Coke Company, Appellant
• Court: Missouri Supreme Court

20 S.W.2d 888

323 Mo. 799

John Maher v. Donk Bros. Coal & Coke Company, Appellant

No. 28058

Supreme Court of Missouri

September 13, 1929

Motion for Rehearing Overruled. October 14, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed (upon condition).

Rassieur & Goodwin for appellant.

(1) Defendant's demurrer offered at the close of the plaintiff's evidence should have been sustained because (a) The coal was placed in the street by one who, as a matter of law, was an independent contractor and for whose acts appellant is not liable. O'Hara v. Gas Light Co., 244 Mo. 395; Philadelphia Coal & Iron Co. v Barrie, 179 F. 54; Neuschaefer v. Sand & Stone Co., 180 N.Y.S. 414; Fink v. Furnace Co., 82 Mo. 283; Sluder v. Transit Co., 189 Mo. 140; Singer v. McDermott, 62 N.Y.S. 1086. (b) The defendant coal company had the right to make delivery of the coal in the street and no duty rested on said defendant to place barriers or warning lights thereon. O'Hara v. Gas Light Co., 244 Mo. 395; Philadelphia Coal & Iron Co. v. Barrie, 179 F. 54; Neuschaeffer v. Sand & Stone Co., 180 N.Y.S. 414. (c) Appellant's liability, if any, was terminated by the direction of the customer, Mrs. Susman, to dump the coal in the street and she thereby and thereupon assumed exclusive control and custody of the coal. Searcy v. Lumber Co., 295 Mo. 188, 243 S.W. 318, 23 A. L. R. 813; Lindman v. Altman, 308 Mo. 187, 271 S.W. 512; Press v. Penny, 242 Mo. 98. (2) It was error for the court to exclude the proof contained in appellant's offer of proof as to the customary manner of delivering coal to private residences. (3) Under the evidence appellant was entitled to instructions permitting the jury to find that the failure to place warning lights on the coal pile did not directly contribute to cause the collision and injury, and that if defendant Maritz saw, or could have seen, the coal pile in time to have avoided the accident plaintiff could not recover as against the appellant. The record contains substantial evidence to support such instructions, and the appellant requested the giving of instructions submitting these issues which were refused by the court. This defense is not covered by any of the instructions given and the failure to submit this issue was error. Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673. (4) The action of the court in giving, at the request of the plaintiff, Instruction 2, was erroneous, because said instruction assumes a material fact which was in issue and upon which there was conflicting testimony. (5) Instruction 3, given at the request of the plaintiff, was clearly erroneous, because it assumed as true the existence of a controverted fact, it is ambiguous, and in attempting to cover the whole case, it excludes a defense raised by the pleadings and upon which evidence was admitted, but upon which defendant's requested instruction was refused. Said instruction is subject to the further criticism that it directed a verdict for plaintiff if the appellant failed to place red signal lanterns on the coal pile, when under the law and the evidence no such duty was cast upon defendant. (6) The verdict is excessive. Hulse v. Ry. Co., 214 S.W. 150; Hosheit v. Lusk, 190 Mo.App. 431; Johnson v. Brick & Coal Co., 276 Mo. 42; Campbell v. United Ry. Co., 243 Mo. 141; Davenport v. Elec. Co., 242 Mo. 111; Phippin v. Railroad, 196 Mo. 321; Young v. Lusk, 268 Mo. 625. (7) The verdict is so grossly excessive as to indicate passion and prejudice on the part of the jury to such a great extent that said verdict cannot be cured by a remittitur, and under the evidence appellant is entitled to a new trial. Partello v. Railroad, 217 Mo. 645; Finnegan v. Railroad, 261 Mo. 512; Harper v. Railroad, 186 Mo.App. 296.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) If defendant caused the coal to be dumped upon the street so as to cover more than one-third of its surface, or if it had notice that it was to be and was so deposited there in the course of its delivery under its contract of sale, it is liable for the resulting violation of the ordinance, although Houser was an independent contractor. Daneschoky v. Sieble, 195 Mo.App. 470; Wiggin v. St. Louis, 135 Mo. 558; Shafir v. Sieben, 274 S.W. 755; Drennan Co. v. Jordan, 23 A. L. R. 91 (Ann. 994 et seq., par. "h"), Ward v. Dry Goods Co., 248 Mo. 361. (2) If appellant sold the coal to Mrs. Susman to be put into the basement, then the basement was the place of delivery, and if then appellant in the course of such delivery caused the coal to be dumped upon the street and in doing so violated the ordinance, it is liable. Shafir v. Sieben, 289 Mo. 579. (3) On the evidence the jury had a right to find and hold that the truck driver was the servant of defendant. Karguth v. Coal & Coke Co., 299 Mo. 580; Burgess v. Garvin, 219 Mo.App. 162. (4) Since appellant had not fully performed its contract for the purchase and sale of the coal until the coal was delivered into the customer's basement, the title to the coal while lying in the street was in the appellant -- the coal still belonged to it. It had not so fully performed as to pass title. Turner-Looker Liquor Co. v. Hindman, 232 S.W. 1076; Keen v. Rush, 284 S.W. 195; Adams v. Pickrel Walnut Co., 232 S.W. 271; Tomas v. Ramsey, 47 Mo.App. 99. (5) The act of Mrs. Susman in directing the driver at what particular spot he should dump the coal, in view of her contract with defendant to deliver the coal in the basement did not amount to a modification of the contract and constitute the dumping on the street a delivery and acceptance. Thurnauer v. Gates, 280 S.W. 65; Lacquement v. Bellamy, 253 S.W. 1073. (6) Delivery and acceptance under a contract of purchase and sale is a matter of intention and hence, the signing by Mrs. Susman of the sale receipts, was, not as a matter of law, conclusive of the issue of delivery and acceptance and passage of title. Turner-Looker Liquor Co. v. Hindman, 232 S.W. 1076. (7) Since plaintiff went to the jury only on the first and second specifications of negligence based upon the alleged violations of the ordinance, it was not reversible error to refuse defendant's instruction withdrawing other specifications. Burton v. Phillips, 7 S.W.2d 712; Dietzman v. Screw Co., 300 Mo. 196; Johnson v. Ry. Co., 259 Mo. 534. (8) The court properly rejected the evidence offered by defendant of its practice and custom with respect to making contracts for delivery of coal. 4 Jones on Evidence (2 Ed.) sec. 1573, p. 2876, and Sec. 1570, p. 2872; Starosky v. Publishing Co., 235 Mo. 67; Bates v. Forcht, 89 Mo. 121; Pyrtle v. Shoe Co., 291 S.W. 172; Turner v. King, 224 S.W. 91; Hefernan v. Neumond, 198 Mo.App. 667; Paramor v. Lindsey, 63 Mo. 63; Hoydt v. Stock Yards Co., 188 S.W. 106; Stagg v. Ins. Co., 19 L.Ed. 1038; Star Piano Co. v. Morrison, 159 Mich. 583; Brown v. Foster, 133 Mass. 136; Catlin v. Smith, 24 Vt. 85; Hutchings v. Ladd, 16 Mich. 493. (9) The giving of instruction 15 at the request of appellant, even if wrong, may not be charged as error against respondent. Clark v. Railroad, 234 Mo. 424; O'Rourke v. Lindell Ry. Co., 142 Mo. 352; Beave v. Transit Co., 212 Mo. 355; Wiggin v. St. Louis, 135 Mo. 558. Besides, the instruction was a correct submission of her defense.

OPINION

Gantt, J.

This case came to me on reassignment. Plaintiff sought to recover from Donk Bros. Coal & Coke Co., William Houser, Lloyd Maritz, Bernard Susman and Bessie Susman damages for personal injuries.

About 10:30 A. M. December 31, 1923, Mrs. Susman gave an order, by telephone, to defendant company for the delivery of twelve tons of coal to her residence at 7200 Westmoreland Drive, a street running east and west, in University City. The company accepted the order and referred it to its Forsythe yard for attention. The company delivered no coal from that yard in its vehicles, but had others to make the deliveries. On receipt of the order at said yard the company called on Houser, who was in the hauling business, for a truck. Houser sent one of his men to the yard with a truck and tools for loading and unloading coal. On arrival the driver of the truck loaded it with coal pointed out to him by the weighman the coal was weighed and scale tickets given to the driver. A wheelbarrow and shovel for use by the men wheeling the coal from the street into the basement were then loaded on the truck and the driver directed to haul the coal to 7200 Westmoreland Drive, give a ticket to the purchaser and have her sign the other ticket, and turn it in to Houser or the yard office. The coal was hauled as directed and dumped in front of the residence, so that about one-half of the coal was on the lawn between the walk and the curbing and the balance in the street. At the request of the driver, Mrs. Susman signed the scale ticket. The truck was then driven to the yard, again loaded with coal, weighed, and scale tickets given to the driver. By direction of the weighman the driver loaded on the truck some "runboards" for use in wheeling the coal up to and over the walks to the basement. The second load was hauled as directed and dumped in the street in front of the residence, so that the coal extended from the south curbing to the middle of the street. It was then dark, and after Mrs. Susman signed the ticket for the second load, the truck was driven to Houser's where the driver gave the tickets to Houser. Thereafter and about 6:45 P. M. on that day an automobile driven eastward on the south side of Westmoreland Drive by the defendant Maritz ran into the coal in the street in front of said residence, which caused the automobile to swerve northward and collide with the automobile in which plaintiff was traveling, as a passenger, westward on the north side of...