Montgomery Ward & Co. v. Arbogast

• Decision Date: 02 August 1938
• Docket Number: 2056
• Citation: 53 Wyo. 275,81 P.2d 885
• Parties: MONTGOMERY WARD & CO. v. ARBOGAST ET UX
• Court: Wyoming Supreme Court

81 P.2d 885

53 Wyo. 275

MONTGOMERY WARD & CO. v. ARBOGAST ET UX

No. 2056

Supreme Court of Wyoming

August 2, 1938

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

Action by C. P. Arbogast and wife, Laura B. Arbogast, against Montgomery Ward & Company and another for alleged negligence on the part of the defendants in installing a furnace in plaintiffs' building. To review a judgment in favor of the plaintiffs, the named defendant brings error.

Reversed.

For the plaintiff in error, there was a brief by H. B. Durham, C. M Crowell and Wm. B. Cobb of Casper, and oral argument by Wm B. Cobb.

The court erred in overruling plaintiff's motion for a directed verdict. The evidence clearly showed that plaintiff was not responsible for the installation of the furnace. 2 C J. 576; 21 R. C. L. 854, 855. Statements of an agent are not sufficient to prove his authority. Raymond v. National Life Insurance Company, 40 Wyo. 1, 2 C. J., Section 24. The Welches were, as shown by the evidence, agents of defendants in error. The court erred in refusing a new trial, on the ground of insufficient evidence. The court also erred in refusing a new trial upon the ground that the verdict was a compromise. The action was for $ 11,500.00 and the verdict was for $ 4,000. Annotation 31 A. L. R. 1091. Livery Co. v. Terminal Company (Ind.) 124 N.E. 493; Weinstein v. Laughlin, 21 F.2d 740; Gundry v. Ry. Co. (Cal.) 286 P. 718. The trial court erred in giving instruction numbered 12, for the reason that it was not in accord with the evidence. Priebe v. Crandall (Mo.) 187 S.W. 605; Union Pacific Ry. Co. v. Gilland, 4 Wyo. 395; Acme Cement Plaster Company v. Westman, 20 Wyo. 143, 122 P. 89. The court erred in giving instruction numbered 14, a so-called "get-to-gether" instruction. There was no necessity for such an instruction, except in the event of a disagreement and said instruction was given before the jury were sent to deliberate. The giving of instruction numbered 18 added to the confusion of the jury, by fixing a limit of recovery in the event that the verdict was for plaintiffs.

For the defendant in error, there was a brief by E. E. Enterline, Madge Enterline and W. J. Wehrli of Casper, and oral argument by E. E. Enterline and W. J. Wehrli.

The abstract of the record contains no assignments of error and we will confine this brief to a discussion of the errors assigned in our opponent's brief. Phillips v. Brill, 15 Wyo. 521; Simpson v. Occidental Loan Association, 45 Wyo. 425. Plaintiff in error moved for a directed verdict at the close of plaintiff's evidence, but such motion was not renewed at the close of the case, which waived its rights to have the ruling on such motion reviewed. Campbell v. Weller, 25 Wyo. 65. It is then assigned as error that the court erred in refusing a new trial, on the ground that the verdict was not sustained by sufficient evidence. A review of the evidence will show that the verdict is sustained by substantial evidence. As to the question of agency, we cite 4 C. J. 705; Wilde v. Lodge Company, 41 P.2d 509. The case of Raymond v. National Life Ins. Co., cited by plaintiff in error, is not in point. Agency can be proven by independent circumstantial evidence. That was not done in this case and when considered in connection with other evidence, in our opinion, was sufficient to submit to the jury the question of agency. Studebaker Corporation v. Hansen, 24 Wyo. 222; Campbell v. Trading Company (Mont.) 193 P. 1112; Goddard v. Motor Company (Utah) 223 P. 340; Little v. Brown (Ariz.) 11 P.2d 610; Fritchen v. Jacobs (Kans.) 26 P.2d 448. It is next complained that the verdict was the result of compromise. The point was not assigned in the motion for a new trial and therefore will not be considered in view of the provisions of Rule 13 of this court. A party cannot complain that the amount of the judgment against him is too small. Bolln v. Metcalfe, 6 Wyo. 1. The giving of instructions numbered 12, 14 and 18 is complained of. Instruction 12 was proper under the evidence, which clearly established negligence on the part of defendant. It is based upon the principles announced in Wright v. Company (Minn.) 243 N.W. 387. Instruction 14 is not a "get-together" instruction, and was not given for that purpose. Harris v. State, 23 Wyo. 487; State v. Flory, 40 Wyo. 184; Nicholson v. State, 24 Wyo. 347.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding in error to review a judgment entered upon the verdict of a jury in a cause wherein C. P. Arbogast and Laura B. Arbogast were plaintiffs and Montgomery Ward and Co., a corporation, and F. W. Redman were defendants in the district court of Natrona County. The verdict aforesaid was rendered against the defendant corporation only and it alone has prosecuted this proceeding for review. Hereinafter the plaintiff in error will usually be referred to as the "Company" and the defendants in error as the "plaintiffs" or by their respective names.

The action below was one brought by the plaintiffs for alleged negligence on the part of the above named defendants in installing a hot air coal furnace in the basement of a building located about eleven miles from the City of Casper, Wyoming, and owned by the plaintiffs, wherein they conducted an inn and a retail liquor business. The plaintiffs also occupied this building as their home. It is asserted that this alleged negligence caused a fire on the evening of December 25, 1935, which destroyed the building and much of its contents. The furnace was purchased from the Company the latter part of October, 1935, under a time payment contract and an alleged agreement on the part of said Company to install same in the basement of said building used by plaintiffs as above described. The sale of the furnace to the plaintiffs was made on the Company's behalf by the defendant F. W. Redman, who is a salesman in its employ and in charge of the plumbing and heating department in the Company's local store engaged in business at Casper, Wyoming.

It is alleged in plaintiffs' petition and denied by the defendants' answer that Redman had "full power and authority" to "install hot air furnaces whenever the same were sold and delivered to any purchaser" by said Company. The actual work of installing the furnace was done by one G. L. Welch with the assistance of his son, Clair D. Welch. Accordingly, whether they were the agents of the Company in performing this task appears to be the principal question argued by the parties here, the Company insisting that there is insufficient evidence in the record to establish that Redman had authority to employ Welch and his son to install the furnace in question or that they were in fact engaged by the Company to do so. The position of the plaintiffs appear to be that there is "circumstantial evidence" which when considered "in connection with other evidence" was sufficient to carry the question of agency or non-agency to bind the Company in the installation of the furnace as one of fact to the jury for its decision. It becomes necessary, therefore, to examine somewhat in detail the evidence submitted on the trial of the case in so far as it deals with these questions.

The record discloses that Laura B. Arbogast, one of the plaintiffs and the wife of C. P. Arbogast, at his request, some time in October, 1935, made an inquiry at the Company's store in Casper, relative to the purchase of a furnace for heating an addition to the building owned by them as aforesaid, which was then in the course of construction. In response to this inquiry, some days later, Redman came to plaintiffs' inn, and after showing him the rooms to be heated, Arbogast took him to the basement where the furnace was to be installed. The latter measured the rooms where the runs or pipes from the furnace were to be placed and also made a penciled sketch thereof. The two men then came upstairs to the bar room, where Mrs. Arbogast was, and according to her husband's testimony the following conversation took place:

"I said, 'Mr. Redman, figure out the cost of your largest furnace complete.' Mr. Redman figured a little there on the bar, and he turned to me and says, 'Well, Mr. Arbogast, our twenty six inch furnace will cost you $ 145.00 complete.' He says, 'Now, the installation, do you want that added on your contract or not?' And I says, 'Of course I want you to install this furnace.' 'Oh', he says, 'Sure, we install it, but how do you want to pay, put that on your contract or do you want to pay them when it is done?'"

Arbogast thereupon asked Mr. Redman how much the installation would be and the latter stated it would be $ 20.00. Arbogast then turned to his wife and, as his testimony reads verbatim, "I says, 'I think we can pay the $ 20.00 when they do the job, don't you, Laura?' And she says, 'Well, I guess we can.'"

Mrs. Arbogast's testimony concerning this conversation was: When her husband asked Redman what the furnace would cost the latter said, "'This will cost $ 145.00. Now what do you want to do about the installation, do you want us to put that on the contract, or are you going to pay for it when it is done?' My husband said, 'I want you to install it.' He said, 'Oh yes, of course I know you want us to install it, but how do you want to pay for it, do you want it to go in the contract?' My husband said, 'Well, I don't know, how much would it be?' And he said, 'Well, it would be $ 20.00.' So Mr. Arbogast turned to me, he said, 'I believe we could pay that now, couldn't we?' And I said, 'Why, I imagine we could. '" It appears by the record that the Arbogasts had carried a time payment account with the Company's Casper store for several years previously.

Redman as a witness for the...