State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison

• Decision Date: 01 April 1921
• Citation: 229 S.W. 1059,287 Mo. 139
• Parties: Ex Parte DICK & BROTHERS QUINCY BREWERY COMPANY, Petitioner, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

229 S.W. 1059

287 Mo. 139

Ex Parte DICK & BROTHERS QUINCY BREWERY COMPANY, Petitioner, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

April 1, 1921

Record quashed.

Culver & Phillip, John S. Boyer, William B. Bostian, and R. R Brewster for relator.

(1) The trial court erred in refusing to give the peremptory instruction asked by the defendant at the close of plaintiff's case, and, again, at the conclusion of all the testimony, and the decision of the Court of Appeals affirming its ruling in that regard is at variance with the latest controlling decisions of this court. Any presumption that might have arisen from the ownership of the truck in question and from other facts and circumstances was swept aside and destroyed by the direct and positive testimony introduced by plaintiff himself. Hays v. Hogan, 273 Mo. 1; Guthrie v. Holmes, 272 Mo. 215; Bollman v. Bullene, 200 S.W. 1068; Mockowik v Railroad, 196 Mo. 571; Glassman v. Harry, 182 Mo.App. 308; Spellman v. Delano, 177 Mo.App. 33; Allen v. Coglizer, 208 S.W. 102. (2) Plaintiff's instruction number two, which purported to cover the whole case was erroneous and prejudicial in that it lacks the essential elements of liability, and the decision of the Court of Appeals upholding this instruction is in direct conflict with the following latest controlling decisions of this court: State ex rel. v. Ellison, 272 Mo. 583; Wojtylak Coal Co., 188 Mo. 283; Hall v. Coal Co.; 260 Mo 367; Walker v. White, 193 Mo.App. 18; Traylor v White, 185 Mo.App. 331; Humphries v. Railway, 191 Mo.App. 721; Pearson v. Lafferty, 193 S.W. 43; Kerr v. Bush, 198 Mo.App. 617; Dalrymple by Guardian v. Motor Co., 135 P. 91, 48 L. R. A. (N. S.) 424; Standard Oil Co. v. Anderson, 212 U.S. 215; Wyllie v. Palmer, 137 N.Y. 248, 19 L. R. A. 285. (3) The errors and omissions contained and made in plaintiff's instruction number two cannot be corrected and supplied by other instructions, inasmuch as plaintiff's instruction number two purports to cover the whole case. Walker v. White, 192 Mo.App. 18; State ex rel. v. Ellison, 272 Mo. 583; Humphries v. Railway, 191 Mo.App. 721; Hall v. Coal Co., 260 Mo. 367. (4) The trial court committed error in permitting plaintiff to testify as to the number of his children and the ruling of the Court of Appeals upon this point is in direct conflict with the following latest controlling decisions of this court: Hecke v. Dunham, 192 S.W. 120; Dayharsh v. Railway, 103 Mo. 570, 23 Am. St. 900; Williams v. Railway, 123 Mo. 573; Mahaney v. Railway, 108 Mo. 191; Stephens v. Railway, 96 Mo. 207. (5) Where appellant has once squarely objected to the introduction of certain evidence, it is not necessary that he follow it up with repeated objections on the same point. Bailey v. Kansas City, 189 Mo. 512; Wabash Ry. Co. v. Cockrell, 192 S.W. 446; Schierbaum v. Schemme, 157 Mo. 1; Gold v. Jewelry Co., 165 Mo.App. 154, Reynolds v. Publisher, 155 Mo.App. 612.

Duvall & Boyd for respondents.

(1) This court will not, under its rules governing applications for writ of certiorari, notice petitioner's charge that "the demurrer to plaintiff's evidence should have been sustained by the trial court." State ex rel. Scullin v. Robertson, 187 S.W. 34; State ex rel. Dun ham v. Ellison, 213 S.W. 459. (a) This court, for the facts in the case, will go only to the opinion of the Court of Appeals, and will not review the record to determine whether or not a demurrer should have been sustained. State ex rel. Dunham v. Ellison, 213 S.W. 459; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S.W. 804; State ex rel. Const. Co. v. Reynolds, 214 S.W. 369. (b) The Court of Appeals found that "there was ample evidence from which the jury could find that the delivery of beer, in which the truck was engaged at the time of the injury, was the business of the brewery company," and that point is not before this court. The cases of Hays v. Hogan, 273 Mo. 1, Guthrie v. Holmes, 272 Mo. 215, and Bolman v. Bullene, 200 S.W. 1068, cited by relator, and other similar cases cited by it, are not controlling in this case. As pointed out by the Court of Appeals in its opinion, there was proof of abundance of facts from which the jury could infer that the driver of the truck, although employed by Davis & Sons, was in fact the servant of appellant, Dick & Bros. Lockwood v. Am. Exp. Co., 76 N.H. 530; Epstein v. Ruppert, 29 Md. 432; Sandifer v. Lynn, 52 Mo.App. 553; Diel v. Henry Zeltner Brewing Co., 51 N.Y.S. 930; Williams v. National Cash Register Co., 157 Ky. 164; Usher v. Tel. Co., 122 Mo.App. 98; Banks v. Southern Exp. Co., 53 S.E. 156. (2) Plaintiff's instruction number two, which submitted the issuable facts, was correct. Counsel for petitioner complained that it did not require the jury to find that "the driver of the truck, at the time and place in question, was the agent, servant or employee of the petitioner," and is therefore erroneous. The instruction did better than that. It required the jury to find facts, which, if true, constituted him the agent of petitioner. (3) The Kansas City Court of Appeals correctly ruled against relator the contention that the trial court committed error in allowing the plaintiff to answer the question "who compose your family?" No objection was made to that question by anybody. The question was asked and answered at the outset of plaintiff's testimony and at the beginning of the trial. The question "Who are the members of your family?" was asked by counsel who represented Davis & Sons but who did not represent the brewery company said: "We object to it as being incompetent, irrelevant and immaterial." That question was not answered and the one now complained of was then asked and answered without any objection by any one. Even if it could be said that the questions were the same, but they were not, the objection made by counsel for Davis & Sons amounted in law to no objection. Fuller v. Robinson, 230 Mo. 22; Stevens v. Knights etc., 153 Mo.App. 196; Renfrew v. Goodfellow, 162 Mo.App. 333. (b) Such an objection would not be good unless the evidence elicited self-evidently could serve no purpose in the case. Surely it cannot be said that at the very beginning of the trial, the trial court should have known that the evidence elicited by the question was absolutely immaterial and would serve no purpose whatever in the trial of the case. How could the trial court know at that stage of the case but that the members of his family would be introduced to describe plaintiff's injuries and sufferings, or for some other material purpose? (c) But no objection was made by anyone to the question which was answered; nor was any motion made to strike out the answer. Nor was the point preserved in relator's motion for a new trial. The only complaint made by the relator in its motion for a new trial as to the admission of evidence was in these words: "The court erred in admitting over the objection of this defendant, incompetent, irrelevant and immaterial evidence offered by the plaintiff." (4) Relator has not shown and cannot show that in the opinion and judgment of the Court of Appeals in the case of Vaughn v. Davis et al., it announced any general principle of law contrary to the latest announcement of this court upon the subject, or, on a given state of facts, announced and applied any conclusion of law contrary to a conclusion of this court on a similar state of facts, and the writ of certiorari should not have issued in this case. State ex rel. Peters v. Reynolds, 214 S.W. 122.

JAMES T. BLAIR, J. Elder, J., not sitting.

OPINION

In Banc.

Certiorari.

JAMES T. BLAIR, J.

Certiorari. The record brought here by the writ is that of the Kansas City Court of Appeals in Vaughn v. Wm. F. Davis & Sons et al., 221 S.W. 782. Vaughn was struck and injured by an automobile truck in use for the delivery of beer and soda water in the City of St. Joseph. He sued W. F. Davis & Sons of St. Joseph, and Dick & Brothers Quincy Brewery Company, an Illinois corporation, and had judgment. The brewery company, relator here, alone appealed. The Court of Appeals affirmed the judgment.

Relator contends the opinion rendered in the case is in several respects in conflict with decisions of this court. One of these contentions goes to the ruling that there was sufficient evidence to take to the trial jury the question whether relator was liable for damages resulting from the truck driver's negligence. This makes it necessary to set out the facts stated in the opinion of the Court of Appeals in connection with the ruling mentioned. These facts are as follows:

"There was no question but that the driver was in the course of his employment, driving the truck in the business of delivering beer, for which it was intended and used; nor is there now any contention over the fact that he negligently ran plaintiff down and injured him permanently and seriously. The great contest is over the question whether the relationship of agency or master and servant can be said to have existed between the driver and the brewery company so as to render the latter liable for the former's negligence. Or, in other words, is the evidence such that the jury can say such a relationship did exist?

"The record discloses that at the time of the injury, and for four years prior thereto, Davis & Sons were distributing agents for the brewery company in the City of St. Joseph, and were also engaged in the manufacture and sale of soda water. They occupied a certain building at Main and Isadore streets on which the brewery company paid the rent, and in it were stored the shipments of beer which the brewery regularly made to St. Joseph. In it the brewery company maintained a...