Schide v. Gottschick

• Citation: 43 S.W.2d 777,329 Mo. 64
• Decision Date: 20 November 1931
• Docket Number: 29754
• Parties: Alice C. Schide, Appellant, v. William S. Gottschick and P. C. Remler
• Court: Missouri Supreme Court

43 S.W.2d 777

329 Mo. 64

Alice C. Schide, Appellant, v. William S. Gottschick and P. C. Remler

No. 29754

Supreme Court of Missouri

November 20, 1931

Appeal from Barton Circuit Court; Hon. C. A. Hendricks Judge.

Reversed and remanded.

T W. Martin, Sylvan Bruner and Mosman, Rogers & Buzard for appellant.

(1) The court erred in giving to the jury defendants' requested Instruction 10, which told the jury that if they should find from the evidence that plaintiff herself was careless or negligent, and that such negligence or carelessness directly contributed to the injury which she sustained, the plaintiff could not recover, even though the defendants were negligent when contributory negligence was not pleaded and when the instruction did not specify any particular act of contributory negligence. Benjamin v. St. Rys. Co., 245 Mo. 598; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Hanke v. St. Louis (Mo. Sup.), 272 S.W. 933; Hires v. Grocery Co., 296 S.W. 408. (2) The court erred in giving Instructions 8, 9 and 10, on behalf of the defendant, which told the jury that they could not consider any aggravation of plaintiff's previous condition. Aggravation of previously existing conditions is an element for which plaintiff was entitled to recover even though the sole damage sustained by her was merely the aggravation of any previous condition suffered by her. Smart v. Kansas City, 208 Mo. 162; Gillogly v. Dunham, 187 Mo.App. 551. (3) The court erred in permitting the defendant Gottschick to testify that he had given the elevator operators instructions not to permit any substituting of operators except experienced operators or bell boys who had had experience. Royle Mining Co. v. Fidelity & Casualty Co., 161 Mo.App. 185; 22 C. J. 220 et seq.

H. W. Timmonds for respondents.

(1) Unless the relation of master and servant exists, the law will not impute to one person the negligent act of another. Mangan v. Foley, 33 Mo.App. 258; James v. Muehlebach, 34 Mo.App. 512; Appel v. Eaton & Prince Co., 97 Mo.App. 440; Weatherman v. Handy, 198 S.W. 459; Lewis Slothower v. Clark, 191 Mo.App. 109; Allen v. Lumber Co., 190 S.W. 87. There is no evidence of the relation of master and servant between the defendants and the boy, Vernon Brown, who was operating the elevator at the time of the accident. The undisputed evidence is that Vernon Brown was never employed by the defendants, that his operation of the elevator was unknown to the defendants before the accident, so there could be no employment by defendants and the defendants' demurrers at the close of plaintiff's case and after all the evidence was introduced should have been sustained. Anderson v. Nagel, 214 Mo.App. 150; Behre v. Hemp & Co., 191 S.W. 1043. And the judgment in this case should be affirmed. To make the master liable for a negligent act of his servant, the act causing injury must have been in line of the servant's duty and within the scope of employment. Sherman v. Railroad Co., 72 Mo. 62. The undisputed evidence shows that when an elevator operator was employed by defendants he was instructed by the defendants not to permit any substitute except an experienced operator. (2) The jury found for the respondents and there was ample evidence to sustain their finding and this court should accept respondents' version as being true. Latham v. Douglass, 206 S.W. 392; Bank v. Yager, 6 S.W.2d 633; Grant v. Insurance Co., 8 S.W.2d 1044; Manley v. Wells, 292 S.W. 69; Holzemer v. Met. St. Ry. Co., 261 Mo. 379. (3) In an action for personal injuries, the question whether the boy causing the injuries was an employee or servant of the respondents was a question for the jury, and if not a servant of the respondents they are not liable in this case. Phillips v. Wes. Union Tel. Co., 194 Mo.App. 464. The undisputed evidence shows the boy was not an employee of the respondents and no evidence was offered to disprove this fact. (4) The appellant charges that the answer in this case does not set out specific allegations of contributory negligence on the part of the appellant. The answer pleads general contributory negligence and without specifications. This objection or defect was not raised by any pleadings, or motion, nor in the trial, nor in the motion for new trial, and is first raised in this court. The appellant has waived this error, if it was an error, and cannot raise the question for the first time in this court. Stark v. Pub. Knapp & Co., 160 Mo. 552; Smiley v. Ry. Co., 160 Mo. 638. In addition to this, appellant injected the issue of contributory negligence of the plaintiff by the last part of appellant's Instruction 4 by further charging the jury that "and if you so find that at said time, the plaintiff was in the exercise of ordinary care for her own safety, then your verdict must be for the plaintiff." (5) Although the answer to the amended petition might be insufficient in only charging contributory negligence of the plaintiff generally, yet where the pleadings at the trial were treated by all parties as sufficient to formulate and direct the court's attention to the real matter in controversy, that is, whose negligence caused the plaintiff's alleged injury, they will be so treated on appeal, although not as specific as might be. Avery v. Bank, 221 Mo. 82. (6) The appellant complains at respondents' Instruction 8 because it tells the jury "that if you find from the evidence that the plaintiff herself was careless or negligent, and that such negligence or carelessness of the plaintiff directly contributed to the injury she sustained, the plaintiff cannot recover damages in this case even though the defendants were negligent." Appellant's Instruction 4 charges the jury as to the appellant's care for her own safety in these words: "And if you so find that at said time, the plaintiff was in the exercise of ordinary care for her own safety, then your verdict must be for the plaintiff." The respondents' instruction was invited by the appellant's instruction and each instruction referred to the same subject, the appellant's acts at the time of the accident, as to her care or negligence. The appellant injected this issue to the jury by her own instruction; then the respondents had a right to have the jury instructed as to the converse if they so found. If this is error it was first suggested and invited by the appellant's instruction and the appellant's objection should not be allowed on appeal. A party will not be heard to complain of the submission of a question to the jury which ought not have been submitted, if it is submitted in an instruction asked by herself. Behan v. Transit Co., 186 Mo. 442; Roy v. Kansas City, 224 S.W. 140. Appellant's Instruction 4 was given over the respondents' objections.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

The plaintiff alleges that on June 9, 1925, while a guest at the Booth Hotel in Independence, Kansas, owned and operated by defendants, she was injured as she was attempting to enter the hotel elevator, and that her injuries were caused by the negligent and careless acts of the operator thereof. She asks damages in the sum of $ 30,000. Upon a trial in the Circuit Court of Barton County, the verdict of the jury was for defendants, and from the judgment entered thereon the plaintiff appealed.

The petition alleges that at the time of the alleged injuries defendants' elevator was in charge of, and being operated by, their agent and servant, and charges that defendants were negligent in the following particulars: permitting the elevator to be in charge of "an inexperienced, unskillful and incompetent operator;" failing "to instruct their said operator as to the proper and safe mode of taking on passengers;" permitting "said elevator to start before the door was closed and to start while plaintiff was in the act of entering said elevator and before she had reasonable time to get into said elevator;" and permitting "said elevator to start before plaintiff, entering said elevator, had reached a place of safety." Defendants' answer admits that they were partners engaged in conducting the hotel, and after a general denial states: "The defendants further answering herein, allege and state that if the plaintiff was injured at the time and place and in the manner mentioned in her petition such injuries were not caused by any act of negligence or want of care on the part of the defendants, but were caused by the carelessness and negligence of the plaintiff, which negligence and carelessness directly contributed to plaintiff's injuries, if any, sustained, and without which, said injuries would not have occurred."

The evidence upon behalf of plaintiff is that she was a married woman, sixty years of age, residing with her husband at Pittsburg, Kansas. She was attending a state convention of the American Legion Auxiliary at Independence, Kansas, as a delegate. Plaintiff registered as a guest at defendants' hotel on June 7 and was assigned to a room on the second floor. She attended the convention on the 7th and 8th of June and during the morning of the 9th. About noon of that day she left her room on the second floor intending to descend to the first floor. She gave the signal for the elevator. Plaintiff had no control over or anything to do with the operation of the electric elevator, its management and operation being entirely under the control of the defendants and their employees. Immediately after plaintiff had given signal, the elevator ascended. It was being operated by a colored boy whom plaintiff had not before observed in charge. The elevator was carrying three passengers, women convention delegates and friends of plaintiff, who had rooms on the third floor. It was stopped on a level with the second floor and the operator opened the...