O'Shea v. Pattison-McGrath Dental Supplies

• Decision Date: 03 April 1944
• Docket Number: 38788
• Parties: Harriett O'Shea v. Pattison-McGrath Dental Supplies, Inc., and William Zimmerman, Appellants
• Court: Missouri Supreme Court

180 S.W.2d 19

352 Mo. 855

Harriett O'Shea v. Pattison-McGrath Dental Supplies, Inc., and William Zimmerman, Appellants

No. 38788

Supreme Court of Missouri

April 3, 1944

Rehearing Denied May 2, 1944.

Appeal from Jackson Circuit Court; Hon. Brown Harris, Judge.

Affirmed.

Stanley Garrity and John W. Oliver for appellants; Caldwell, Downing Noble & Garrity of counsel.

(1) Both defendants' demurrers to the evidence should have been sustained because the undisputed evidence of the plaintiff showed that plaintiff was guilty of contributory negligence as a matter of law. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, and cases cited therein. (2) Defendant Pattison-McGrath's demurrers to the evidence should have been sustained because there was no evidence before the jury upon which the jury could have rasonably found the necessary facts to predicate liability based upon the theory of respondeat superior. The undisputed facts show as a matter of law that such liability could not be legally imposed upon defendant Pattison-McGrath, because defendant Zimmerman was on a purely personal mission, not acting in the scope of his employment under the control of his employer or in the performance of any duty of his employer. 1 Restatement of the Law of Agency, sec. 238, p. 535; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897; Klotsch v. P.F. Colliers & Son Corp., 349 Mo. 40, 159 S.W.2d 589; Corder v Morgan Roofing Co., 166 S.W.2d 455; Estes v. Owen, 168 S.W.2d 1052. (3) The effect of the trial court's action sustaining the motion for new trial on the sole ground of inadequacy of verdict was that it overruled all other grounds alleged therein including the weight of the evidence grounds alleged in said motion. King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; First Natl. Bank v. Wood, 124 Mo. 72, 27 S.W. 554; Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574; Candee v. Kansas City & Independence Rapid Transit Ry., 130 Mo. 142, 31 S.W. 1029; Bradley v. Reppell, 133 Mo. 545, 32 S.W. 645; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649. (4) The determination of whether or not a verdict is or is not inadequate is a question of law and does not in any way involve any question of the weight of the evidence. State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36. (5) The present formula to the effect that "to say that a verdict is inadequate is equivalent to saying it is against the weight of the evidence," -- applied by this court in its appellate determination of the question of law of whether or not a trial court properly or improperly sustained a motion for new trial on the sole ground of inadequacy -- is incorrect and unsound and opposed to fundamental principles of law which are correctly declared by this court in analogous situations. Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S.W.2d 610; Dove v. Atchison, Topeka & Santa Fe, 349 Mo. 798, 163 S.W.2d 548; Georgia v. Brailsford, 3 Dall. (U.S.) 1, 1 L.Ed. 483; Loftus v. Railway Co., 220 Mo. 470, 119 S.W. 942; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518. (6) The cases relied upon in the Murphy Case (most recently announcing the formula above criticized) and the cases upon which those cases rely do not support the erroneous theory of law pronounced by that case. St. Louis v. Franklin, 324 Mo. 1212, 26 S.W.2d 954; St. Louis v. Worthington, 19 S.W.2d 1066; Devine v. St. Louis, 257 Mo. 470, 165 S.W. 1014; Hunt v. Gus Gillerman Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369; Herschel v. Orpheum Theatre Co. of Mo., 330 Mo. 581, 48 S.W.2d 108; Stegner v. M.-K.-T. R. Co., 333 Mo. 1182, 64 S.W.2d 691; Haven v. Mo. Railroad Co., 155 Mo. 216, 55 S.W. 1035; Lilley v. Eberhardt, 37 S.W.2d 599; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886. (7) The adoption of the formula of "inadequacy is equivalent to weight of the evidence" attempted to settle the confusion theretofore existing with regard to allegedly inadequate verdicts. That confusion, as is the present confusion, was based upon an unsound theory of law. The prior confusion is noted by the citation of illustrative personal injury cases involving verdicts of one dollar or one cent. (8) In the following cases the appellate court refused to grant a new trial on theory that a one dollar or one cent was not inadequate. Pritchard v. Hewitt, 91 Mo. 547, 4 S.W. 437; Brown v. Union Railway Co., 51 Mo.App. 192; Weinberg v. Met. Street Ry. Co., 139 Mo. 286, 40 S.W. 882; Locke v. City of Independence, 192 Mo. 570, 91 S.W. 61; Sullivan v. Wilson, 283 S.W. 743. (9) In the following cases the appellate court reversed the trial court for having failed to sustain a motion for new trial on the ground a one dollar or one cent verdict was inadequate. Welch v. McAllister, 13 Mo.App. 89; Watson v. Harmon, 85 Mo. 443; Farigrieve v. Moberly, 29 Mo.App. 141; Fischer v. St. Louis, 189 Mo. 567, 88 S.W. 82; Bock v. Rinderknecht, 200 Mo.App. 496, 207 S.W. 245; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7. (10) In the following cases the appellate court sustained the trial court in its action granting a new trial on the ground a verdict of one dollar or one cent was inadequate. Lee v. Publishers: George Knapp & Co., 137 Mo. 385, 38 S.W. 1107; Chouquette v. Southern Electric R. Co., 152 Mo. 257, 53 S.W. 897; Haven v. Mo. Ry. Co., 155 Mo. 216, 55 S.W. 1035; Loevenhart v. Lindell Ry. Co., 190 Mo. 342, 88 S.W. 757; Noble v. Kansas City, 222 Mo. 121, 120 S.W. 779; Platt v. Cape Girardeau Bell Tel. Co., 12 S.W.2d 933; Stegner v. M.-K.-T. Railroad Co., supra. (11) In the following case the appellate court reversed a trial court for having granted a new trial on the ground that a one dollar verdict was inadequate. Edwards v. Mo. Pac. R.R. Co., 82 Mo.App. 478. (12) The other appellate courts of the state have impliedly criticized the formula of the cases illustrated by the Murphy Case. Sanders v. Harvey, 152 S.W.2d 214. (13) The true principle of law that is applicable to this case is that the appellate court should determine the question of law of whether or not the jury had before it sufficient substantial, competent evidence for it to have reasonably arrived at the verdict it returned. Such a rule in effect is now applied in the allegedly excessive verdict cases which involve substantially the same principle of law. Fischer v. St. Louis, 189 Mo. 567, 88 S.W. 82; Dimick v. Schiedt, 293 U.S. 474, 79 L.Ed. 603; Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045; Webb v. M.-K.-T. R. Co., 342 Mo. 394, 116 S.W.2d 27; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Davis v. The Buck's Stove Co., 329 Mo. 1177, 49 S.W.2d 47; Lepchenski v. Mobile & Ohio R.R. Co., 332 Mo. 194, 59 S.W.2d 610; Sheehan v. Terminal Railroad Assn., 344 Mo. 586, 127 S.W.2d 657; Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213. (14) In its appellate review of awards of the Workmen's Compensation Commission, this court had correctly declared that such awards have the force and effect of a jury verdict and its appellate review of those awards is in accordance with the principle urged by appellants in this brief. Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Decker v. Raymond Concrete Pile Co., 336 Mo. 1116, 82 S.W.2d 267; State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008. (15) The principles urged herein have been applied by other courts. Leversee v. Neidermeyer, 219 A.D. 214, 219 N.Y.S. 591; Hogan v. Franken, 221 A.D. 164, 223 N.Y.S. 1; Praed v. Graham, 24 Q.B. 53; Wise v. Rubenstein, 24 S.W.2d 203.

Hugh B. Downey and Maurice J. O'Sullivan for respondent.

(1) The appeal is vexatious. Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7; Murphy v. Kroger Baking Co., 171 S.W.2d 610. (2) There was no contributory negligence on the part of the plaintiff. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Miller v. Clark, 109 F.2d 677. (3) Pattison-McGrath's demurrer was properly overruled. Zimmerman was driving within the scope of his employment. State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164; Montgomery v. Hutchins, 118 F.2d 661; Corder v. Morgan Roofing Co., 16 S.W.2d 455; Mattan v. Hoover, 166 S.W.2d 577; Steinmetz v. Saathoff, 84 S.W.2d 437; Pillsbury Flour Mills v. Miller, 121 F.2d 297; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Estes v. Owen, 168 S.W.2d 1052; Restatement of the Law of Agency, p. 512; sec. 229,; p. 532, sec. 237; Thomas v. Slavens, 78 F.2d 144; Fidelity & Casualty Co. of New York v. Kansas City Rys. Co., 207 Mo.App. 137, 231 S.W. 277; Fuqua v. Lumberman's Supply Co., 76 S.W.2d 715; Nagle v. Alberter, 53 S.W.2d 289; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20. (4) The trial court did not err in granting a new trial because of inadequacy of the verdict. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618. (5) This court should properly exercise its discretion and order that the new trial be limited to determining the amount of damages. Annotation 98 A.L.R. 941; Sec. 1229, R.S. 1939; Eckner v. Western Hair & Beauty Supply Co., 162 S.W.2d 621; Busse v. White, 287 S.W. 600.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

PER CURIAM

Action to recover $ 50,000 damages for personal injuries; the jury found for plaintiff, and fixed her damages at $ 500. The trial court sustained plaintiff's motion for a new trial on the ground of inadequacy of verdict, and defendants appealed.

Error is assigned on overruling defendants' separate demurrers to the evidence...