State ex rel. and to Use of Scarborough v. Earley

• Decision Date: 19 April 1949
• Citation: 219 S.W.2d 879,240 Mo.App. 868
• Parties: State of Missouri, at the Relation and to the Use of Raymond Scarborough, Appellant, v. Ed Earley and Massachusetts Bonding & Insurance Company, a corporation, Defendants, Massachusetts Bonding & Insurance Company, a corporation, Respondent
• Court: Missouri Court of Appeals

219 S.W.2d 879

240 Mo.App. 868

State of Missouri, at the Relation and to the Use of Raymond Scarborough, Appellant, v. Ed Earley and Massachusetts Bonding & Insurance Company, a corporation, Defendants, Massachusetts Bonding & Insurance Company, a corporation, Respondent

Court of Appeals of Missouri, St. Louis District

April 19, 1949

Motion for Rehearing or to Transfer to Supreme Court Denied May 20 1949.

Appeal from the Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Affirmed.

James J. Milligan for appellant.

(1) The court erred in entering judgment reducing the previous judgment against defendant surety from $ 2,500.00 to $ 1.00. Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610, 611; Cazzell v. Schofield, 319 Mo. 1169, 1195, 8 S.W. 2d 580, 592; Dimick v. Schiedt, 293 U.S. 474, 79 L. ed 603, 55 S.Ct. 296, 95 A. L. R. 1150; Hunt v. U.S. Fire Insurance Co. of N. Y., 193 S.W. 2d 778, 784. (2) The court erred in overruling plaintiff's motion to set aside the said judgment entered on July 26th, 1948, and to reinstate the judgment for $ 2,500.00 based on the verdict of the jury. Authorities under Point (1). (3) Any valid judgment entered by the court must be based on the verdict of the jury. The amount of damages was a question for the jury. The court erred in reducing the damages found by the jury against the surety defendant without the consent of plaintiff. The only course open to the court was to grant a new trial as to that issue if such damages were deemed improper. King v. Kansas City Life, 350 Mo. 75, 164 S.W. 2d 458, 465; Cook v. Globe Printing Co., 227 Mo. 471, 542, 547, 127 S.W. 332, 353, 360. (4) The judgment of the court reducing the judgment against surety defendant should be reversed. The original judgments entered on the verdicts of the jury should be affirmed and reinstated. Cazzell v. Schofield, 319 Mo. 1169, 1195, 8 S.W. (2) 580, 592.

John S. Marsalek and Moser, Marsalek, Carpenter, Cleary & Carter for respondent.

(1) No claim is made that the respondent, Massachusetts Bonding and Insurance Compony, was on its own part guilty of any act or omission giving rise to the damages claimed in the petition. The liability, if any, of the respondent is solely a secondary liability, as surety upon Earley's bond, for the identical damages asserted against its principal, the defendant Earley as constable. Under such circumstances the recovery against the surety can in no event exceed the recovery against the principal. The liability of the surety is measured by the liability of the principal. Stix, Baer & Fuller Dry Goods Co. v. Ottawa Realty Co. and Chicago Bonding & Surety Co., 273 Mo. 376, 390, 202 S.W. 577; State ex rel. v. Collins et al. (Mo. App.), 172 S.W. 2d 284; United States v. Alsbury, 71 U.S. 186, 18 L.Ed. 321; Eckstein v. Massachusetts Bonding & Insurance Co., 281 N.Y. 435, 24 N.E.2d 114; Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236; Girard Fire & Marine Insurance Co. v. Koenigsberg et al. (Tex.), 65 S.W. 2d 783; City National Bank v. Eastland County (Tex.), 12 S.W. 2d 662; Rafferty v. Klein, 256 Pa. 481, 100 A. 945. (2) (a) Where the liability of one defendant is a primary liability to answer on account of his own acts, and that of the other is merely a secondary liability to pay the damage alleged to be due to the acts of the former, a verdict which attempts to hold the defendant secondarily liable for damages in excess of the award against the defendant primarily liable is contradictory, self-repugnant, null and void, and constitutes error on the face of the record. Presley v. Central Terminal Company (Mo. App.), 142 S.W. 2d 799; McGinnis v. Chicago, R. I. & P. R. Co., 200 Mo. 347, 98 S.W. 590. (b) The verdict in favor of plaintiff and against Earley for $ 1.00 is in effect a verdict for defendant Earley. Haven v. Mo. Pac. R. Co., 155 Mo. 215, 55 S.W. 1035; Pritchard v. Hewitt, 91 Mo. 547, 4 S.W. 437; Gregory v. Chambers, 78 Mo. 294. (3) Where, as in the present case, the jury's finding against the defendant secondarily liable is in conflict with its finding against the primary defendant it is proper for the court to enter, against the defendant secondarily liable, a judgment in accordance with the finding against the primary defendant, and the court may properly do so of its own motion. Consequently, the trial court in this case committed no error in entering a verdict and judgment against defendant Massachusetts Bonding and Insurance Company for $ 1.00, the same sum awarded against defendant Earley. Stephens v. D. M. Oberman Mfg. Co., 334 Mo. 1078, 1081, 1083, 70 S.W. 2d 899; City of St. Louis v. Senter Commission Co., 340 Mo. 633, 102 S.W. 2d 103; Williams v. Pemiscot County, 345 Mo. 415, 133 S.W. 2d 417; Wright v. Hannan & Everitt, Inc., 336 Mo. 732, 81 S.W. 2d 303. (4) (a) The present Civil Code of Missouri governs procedure only, and does not purport to affect substantive rights. Civil Code of Missouri, Secs. 1, 2; Rev. Stat. Mo. Ann., Secs. 847.1, 847.2. (b) While the code abolishes motions in arrest of judgment by that name, the right to the same relief formerly obtainable by such motions is expressly preserved by the provision that the objections which were heretofore made on such motions may be raised in a motion for a new trial or upon motion filed at the same time as is required for motion for new trial, praying for appropriate relief in the premises. Respondent's motion to correct the verdict and judgment properly follows the new procedure. Civil Code of Missouri, Sec. 120; Mo. Rev. State. Ann., Sec. 847.120. (5) the judgment in favor of plaintiff and against defendant Earley in the sum of $ 1.00 and costs is final and conclusive, since plaintiff has taken no appeal from said judgment. Under the rule of res adjudicata, said judgment inures in favor of the respondent, and precludes the award of any greater sum against the respondent, as surety for defendant Earley. Presley v. Central Terminal Co. (Mo. App.), 142 S.W. 2d 799; State to use of Hempstead v. Coste, 36 Mo. 437; Stephens v. D. M. Obermeyer Mfg. Co., 334 Mo. 1078, 1083, 70 S.W. 2d 899; Calhoun v. Gray, 150 Mo.App. 591, 596, 131 S.W. 480; United States v. Alsbury, 71 U.S. 186, 18 L.Ed. 321; Suretyship, 50 Am. Jur. p. 995, Sec. 136. (6) (a) All presumptions favor the correctness of the trial court's rulings, and in the absence of any evidence in the record, the court on appeal must presume that the evidence before the court sustained the court's rulings and judgment. Mastin v. Ireland, 320 Mo. 617, 620, 8 S.W. 2d 900. (b) Upon appeal, the burden is upon the appellant to bring up a record showing that error was committed against appellant, materially affecting the merits of the action. Civil Code of Missouri, Sec. 140 (b); Mo. Rev. Stat. Ann., Sec. 847.140 (b); Montague v. Kolkmeyer & Co., 138 Mo.App. 288, 120 S.W. 637.

Anderson, J. Hughes and McCullen, JJ., concur.

OPINION

ANDERSON

This is a suit on the official bond of Ed Earley, Constable for LeMay Township, St. Louis County, in which plaintiff sought to recover damages for personal injuries alleged to have been sustained by him as the result of an alleged assault made upon him by defendant Earley. The action was brought against Ed Earley, principal in the bond, and Massachusetts Bonding & Insurance Company as surety. There was a verdict and judgment below in favor of plaintiff and against both defendants. The jury, by said verdict, assessed damages against defendant Earley in the sum of one dollar, and awarded damages against the surety in the sum of $ 2500. Thereafter, the court sustained a motion filed by said surety to correct said verdict and judgment, and entered an order amending and correcting said verdict and judgment by reducing the damages assessed against said surety from $ 2500 to $ 1.00. From this order plaintiff has appealed.

It was alleged in the petition that on June 17, 1946, defendant Ed Earley entered plaintiff's premises and, without provocation or excuse, and under color of his office, seized and assaulted plaintiff by striking plaintiff in the head, face and body; that plaintiff, as a result thereof, was rendered unconscious and, while in that condition, was handcuffed and dragged into the street, thrown into an automobile, and transported to the County Jail at Clayton, where he was restrained of his liberty for a period of eight hours, at the end of which time plaintiff was released on bond.

It was further alleged that defendant Earley thereafter procured a charge of peace disturbance against plaintiff, and also a charge of resisting arrest. It was alleged that the former charge was dismissed upon trial in the Justice Court, and the latter charge was nolle prossed in the Circuit Court.

It was further alleged that defendant Earley at the time of said assault and arrest was acting in the scope of his official duties, and that his conduct was wrongful and illegal.

The damages alleged were the loss of earnings at the rate of $ 200 per month for a period of ten months, and certain injuries to plaintiff's head and body; that plaintiff was unconscious for several hours and unable to open his mouth for a period of twenty-four hours; that he suffered a certain injury which causes his jaw to jog to the left and back to midline when he opens and closes his mouth, which creates a cracking sound very embarrassing to him; and that he suffers intermittently with pain in the right temple region. It was alleged that his injuries were permanent and that he had been compelled to expend large sums of money for medical treatment.

It was further alleged that the conduct of Earley constituted a breach of his official duties and that the action was brought against Earley and his surety to the extent of the penalty of the bond.

The petition concludes with...