Maryland Cas. Co. v. Spitcaufsky

• Decision Date: 07 February 1944
• Docket Number: 38616,38617
• Citation: 178 S.W.2d 368,352 Mo. 547
• Parties: Maryland Casualty Company, a Corporation, v. Hyman Spitcaufsky and John Spitcaufsky, Appellants
• Court: Missouri Supreme Court

178 S.W.2d 368

352 Mo. 547

Maryland Casualty Company, a Corporation, v. Hyman Spitcaufsky and John Spitcaufsky, Appellants

Nos. 38616, 38617

Supreme Court of Missouri

February 7, 1944

Rehearing Denied March 6, 1944.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

James P. Aylward, Ralph M. Russell and Francis M Cook for appellant John Spitcaufsky.

(1) The court erred in refusing to give defendants' peremptory instructions in the nature of demurrers at the close of plaintiff's evidence and at the close of all evidence for the reason that no submissible case was made. Kelley v. London Guarantee & Accident Co., 97 Mo.App. 623; Noble v. Blount, 77 Mo. 235; 21 R.C.L., p. 1098. (2) The court committed reversible error in making highly prejudicial remarks to defendants in the presence of the jury and arbitrarily called defendants to the witness stand during plaintiff's case. Morris v. DuPont DeNemours & Co., 346 Mo. 126, 139 S.W.2d 984; Mahaney v. Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817; Wair v. American Car & Foundry Co., 285 S.W. 155. (3) The court erred in giving plaintiff's Instruction I. (a) In that the instruction directs a verdict for the plaintiff, attempts to cover the whole case and fails to submit essential elements necessary to plaintiff's recovery. (b) The instruction allows interest from the date of payment without requiring a finding of a demand against defendants. (c) Instruction submits matter not in evidence and is erroneous therefore. (d) The instruction fails to define "good faith" and thereby submits matter of law to be determined by the jury. (e) Instruction allows a recovery against both defendants as co-partners after amendment of plaintiff's petition taking such issue from the case. State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788; Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 78 S.W. 978; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54; Annin v. Jackson, 332 Mo. 53, 100 S.W.2d 872; Lindenlaub v. Ozora Marble Quarry Co., 70 S.W.2d 1110; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835; Kadderly v. Vossbrink, 149 S.W.2d 869; Mitchell v. Wabash Ry. Co., 344 Mo. 926, 69 S.W.2d 286; Raschel v. Litchfield & M. Ry. Co., 112 S.W.2d 876. (4) The court erred in permitting plaintiff to strike parts of its petition and to amend its petition by interlineation allegedly to conform to the proof and to state by such amendment a new and different cause of action which was barred by the Statutes of Limitation. Secs. 1013 and 1014, R.S. 1939. Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668; Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233. (5) The refusal of the plaintiff's Instructions "C" to "I," inclusive, was erroneous for the reason that said instructions were based upon facts in evidence and correctly declared the law as applicable to such facts and defendants had a right to have such instructions given and to present to the jury their theory of the case. Kelley v. London Guarantee & Accident Co., 97 Mo.App. 623; National Surety Co. v. Roth, 232 S.W. 737; Jordan v. Daniels, 224 Mo.App. 749, 27 S.W.2d 1052; Root v. Q., O. & K.C. Railroad Co., 237 Mo. 640; Tackett v. Linnenbrink, 112 S.W.2d 160.

Gage, Hillix, Shrader, Hodges, Cowherd & Phelps for appellant Hyman Spitcaufsky.

(1) Appellant's demurrer to the evidence should have been sustained because the evidence was wholly insufficient to make a submissible case against this appellant on said indemnnity agreement under any theory of liability alleged in the petition. Thompson v. Granite Bituminous Paving Co., 199 Mo.App. 356, 203 S.W. 496; Hough v. American Surety Co., 90 Mo.App. 475; Charlton v. St. Louis & S.F.R. Co., 200 Mo. 413, 98 S.W. 529; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Kelley v. London Guaranty & Accident Co., 97 Mo.App. 623, 71 S.W. 711; 31 C.J., sec. 19; National Surety Co. v. Roth, 208 Mo.App. 277, 232 S.W. 737. (2) The naming of the principal in the blasting bond and in the blasting permit as "Hyman and John Spitcaufsky, doing business as Spitcaufsky Brothers," raised a presumption they were a partnership, and this presumption was not rebutted by the evidence. 47 C.J., sec. 119; Hoag v. Hoag, 98 Ill.App. 604, 193 Ill. 645; Charman v. Henshaw, 15 Gray, 293; Mapel v. Long-Bell Lbr. Co., 103 Okla. 249, 229 P. 793; Richardson v. Erckens, 65 N.Y.S. 872; Mitchell v. Whaley, 29 Ky. L. 125, 92 S.W. 556; 1 Rowley Modern Law of Partnerships, sec. 265. (3) If said indemnity agreement prepared by respondent was ambiguous and obscure as to whether the blasting bond involved was covered by said agreement, the requirement that under such circumstances the doubt as to the extent of the coverage of said agreement must be construed most strictly against respondent operated to excuse this appellant from any liability thereon. M., K. & T. Ry. Co. v. American Surety Co., 236 S.W. 657, 291 Mo. 92; National Surety Co. v. Roth, 208 Mo.App. 277, 232 S.W. 737; Union State Bank v. American Surety Co., 23 S.W.2d 1044; State to Use v. Cochrane, 264 Mo. 581, 175 S.W. 599; State ex rel. v. Detroit Fidelity & Surety Co., 32 S.W.2d 572; Lackland v. Renshaw, 256 Mo. 133, 165 S.W. 314; Newman v. Independence Indemnity Co., 41 S.W.2d 162; State ex rel. v. Shain, 66 S.W.2d 102; State ex rel. v. Shain, 119 S.W.2d 971. (4) If said indemnity agreement covered said blasting bond and said bond applied to said sewer construction work, in which Hyman had no earthly interest, then his liability as a signer of said indemnity agreement is analogous to that of an accommodation or gratuitous surety, who is still favored under the law. Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025; State ex rel. Kaercher v. Roth, 330 Mo. 105, 49 S.W.2d 109; State ex rel. v. Yates, 231 Mo. 276, 132 S.W. 672. (5) Respondent should not have been allowed over the objection of this appellant to amend its petition at the close of the case by striking out and interlining because such amendments materially changed and altered the cause of action as originally stated and constituted a variance and departure therefrom. 1 Houts, Missouri Pleading & Practice, sec. 160; Slaughter v. Davenport, 151 Mo. 26, 51 S.W. 471; Shern v. Sims, 258 S.W. 1029; Jacobs v. Chicago, P. & St. L.R. Co., 204 S.W. 954; State ex rel. Noe v. Cox, 323 Mo. 520, 19 S.W.2d 695. (6) Under respondent's Instruction 1, interest should not have been allowed in any event against this appellant on any payments made by respondent in settlement of the McMullin litigation prior to the demand therefor upon this appellant by the institution of this suit. Board of Education v. Natl. Surety Co., 183 Mo. 166, 82 S.W. 70; McDonald v. Lower, 145 Mo.App. 49, 130 S.W. 52; State ex rel. v. Lust, 197 S.W. 172. (7) Since there was no evidence that John's said sewer constructions operations were conducted pursuant to said blasting permit, this issue as to this appellant should not have been submitted to the jury in respondent's Instruction 1. Gately v. St. L.-S.F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Yancey v. Central Mutual Ins. Assn., 77 S.W.2d 149; In re Thomasson Estate, 347 Mo. 748, 148 S.W.2d 757. (8) The court erred in refusing to give this appellant's instructions C, D, G, and I, thus and thereby denying this appellant the right to submit to the jury his theory of the case, which was supported by the evidence that the indemnity agreement did not cover or apply to John's said contract out of which this suit arose. Roshel v. Litchfield & M.R. Co., 112 S.W.2d 876; Collins v. Rankin Farm, 180 S.W. 1053; Smith v. Southern, 210 Mo.App. 288, 236 S.W. 413; Hendricks v. Corning, 201 Mo.App. 555, 214 S.W. 253; Tackett v. Linninbrink, 112 S.W.2d 160.

Warrick, Koontz, Hazard & Shannon for respondent.

(1) The blasting bond was executed pursuant to the application containing the indemnity agreement and the appellants are liable thereunder. Central Surety Co. v. Hinton, 130 S.W.2d 235; American Surety Co. v. Steffen, 214 S.W. 806; Cross v. Williams, 72 Mo. 577; Strickland Printing Co. v. Chenot, 45 S.W.2d 937; Prasse v. Prasse, 77 S.W.2d 1001; Chapin v. Cherry, 243 Mo. 375, 47 C.J., sec. 119; Heman Const. Co. v. St. Louis, 256 Mo. 332; Barlow v. Robinson, 17 S.W.2d 977; Breeden v. Frankfort Ins. Co., 220 Mo. 327. (2) Amendments are liberally allowed at the discretion of the court. R.S. 1939, sec. 971; Dyer v. Harper, 77 S.W.2d 106; Solomon v. Moberly Light & Power Co., 262 S.W. 367; Loughlin v. Marr-Bridger Co., 10 S.W.2d 75; Walk v. St. Louis Can Co., 28 S.W.2d 391; Lilly v. Tobbein, 103 Mo. l.c. 490. (3) Interest was properly allowed from the date of payment by respondent. R.S. 1939, sec. 3226; Boillot v. Income Guaranty Co., 102 S.W.2d 132; Steckdaub v. Wilhite, 211 S.W. 915. (4) The instructions correctly declared the law. (5) The alleged prejudicial remarks of the court constituted no error. R.S. 1939, sec. 1228; Rhoades v. Alexander, 57 S.W.2d 738.

OPINION

Clark, P.J.

From a judgment in favor of respondent, plaintiff, for $ 8,355.61 against both defendants, each defendant has taken a separate appeal and has filed a separate brief. There is little substantial difference in the legal questions presented in appellants' briefs and the two appeals will be disposed of in one opinion.

The original petition filed April 22, 1931, among other allegations, stated that defendants, doing business under the name of Spitcaufsky Brothers, were engaged in a business including the operation of a rock quarry requiring the blasting of rock and other material. That under the charter and ordinances of Kansas City it was necessary, before blasting operations could be conducted in the city limits, to procure a permit from and file a bond...