State ex rel. McCrory v. Bland

• Decision Date: 11 November 1946
• Docket Number: 39896
• Citation: 197 S.W.2d 669,355 Mo. 706
• Parties: State of Missouri, at the Relation of Mr. and Mrs. P. H. McCrory, Relators, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

197 S.W.2d 669

355 Mo. 706

State of Missouri, at the Relation of Mr. and Mrs. P. H. McCrory, Relators, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals

No. 39896

Supreme Court of Missouri

November 11, 1946

Certiorari.

Civil Appeal from Action for Damages.

AFFIRMED AS TO APPELLANT MRS. P. H. MCCRORY AND REVERSED AS TO APPELLANT P. H. MCCRORY.

Affirmed as to appellant Mrs. P. H. McCrory and reversed as to appellant P. H. McCrory.

Calvin & Kimbrell, Walter W. Calvin and Bert S Kimbrell for relators; Guy B. Park of counsel.

(1) The court erred in overruling the defendants' joint and separate motion for a directed verdict in their favor interposed and offered by them, at the conclusion of all the testimony. Sec. 3680, R.S. 1939; Miller v. Busey, 186 S.W. 983; Claxton v. Pool, 197 S.W. 349; Moore v. Doerr, 199 Mo.App. 428, 203 S.W. 672; Drake v. Rowan, 216 Mo.App. 663, 272 S.W. 101; State v. Murray, 316 Mo. 31, 292 S.W. 434. (2) The court erred in refusing to give Instruction E, interposed and offered by the defendant, P. H. McCrory, at the conclusion of all the testimony. Sec. 3680, R.S. 1939; Authorities cited under Point (1) hereof. (3) The trial court, after the verdict was returned, and after the jury was discharged, had no legal authority or power to set aside the verdict, as to the husband, and permit the same to stand as to the wife; but, could only have set the verdict and judgment aside, as to both defendants. Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610; State ex rel. St. Louis Pub. Serv. Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141; Powell v. Bierman, 22 S.W.2d 854; Boudreau v. Myers, 54 S.W.2d 998; Kaimann v. Kaimann Bros., Inc., 182 S.W.2d 458. (4) The court erred in giving, over the objections and exceptions of the defendants, and each of them, instruction No. 2, offered by and on behalf of the plaintiff. (5) The court erred in giving, over the objections and exceptions of the defendants, and each of them, instruction No. 3, offered by and on behalf of the plaintiff. (6) Since all of the testimony which the defendant, P. H. McCrory, gave, upon the trial of this cause, was by deposition; and, since all the testimony which the defendant, Barbara McCrory, and Harriett McCrory gave was, also, by deposition, so to speak, this court may rightfully and legally, weigh the testimony, which those witnesses gave, where, as here, there is a direct and positive conflict, upon a very material point and issue, between the testimony, which those witnesses gave, and the uncorroborated testimony which the plaintiff gave; and, the general rule that the appellate court will not, and cannot, evaluate or weigh conflicting testimony, has no controlling application here. Neil v. Cunningham Store Co., 149 Mo.App. 53, 130 S.W. 503; Whipple v. Edward Aaron, Inc., 228 Mo.App. 968, 74 S.W.2d l.c. 1091; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458. (7) If, upon a full consideration of this case, this court should reach the conclusion that the verdict herein has been obtained by unfair and illegal means, then it will not hesitate to reverse, or to reverse and remand, this cause with such directions and recommendations as it may deem necessary and proper to impose. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Jones v. Kansas City, 76 S.W.2d 340. (8) The plaintiff's testimony as to how she came to fall; and, her description of the way or manner in which she fell, as well as her testimony as to other facts, and circumstances, immediately preceding and attending, her fall, are so obviously contrary to physical facts, or known physical laws; or, are so opposed to reasonable probability, that this court is fully warranted in concluding that such testimony is so manifestly false, or, so inherently unbelievable, that the same should be wholly disregarded. Hook v. Mo. Pacific Ry. Co., 162 Mo.App. 569, 63 S.W. 360; Spiro v. St. Louis Transit Co., 102 Mo.App. 250, 76 S.W. 684; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Hardin v. Illinois Central Railroad Co., 334 Mo. 1169, 70 S.W.2d 1075; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190; Carner v. St. Louis-S.F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947. (9) That the finding and verdict of the jury were, and are, the result of, and were occasioned by, perjury, or false swearing, by and on the part of the plaintiff herein. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74. (10) That the finding and verdict of the jury were, and are, the result of passion and prejudice, amounting to misconduct by and on behalf of the jury. (11) That the finding and verdict of the jury were so grossly excessive as to shock the conscience and sensibilities of the court, and to warrant the court in setting aside the judgment herein and reversing the cause. (12) The defendants, being husband and wife, the maintenance of a household, by them, was, and is, ordinarily, incident to the relationship of husband and wife; and, in the absence of any testimony to the contrary, the relationship of husband and wife, their object and purpose in maintaining such household, and their acts and conduct in connection with the maintenance thereof, precludes the idea, and relationship, as between them, of joint adventure or joint enterprise. Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562.

Cyril G. Baucke and Walter J. Gresham for respondents.

(1) Defendants' peremptory instructions were properly refused. Defendants did not stand on the request at the close of plaintiff's evidence, and the one asked at the close of all the case could not be given in face of the evidence. Schipper v. Brashear Truck Lines, 132 S.W.2d 993; Hardwick v. Wabash R. Co., 181 Mo.App. 156, 168 S.W. 328. (2) Defendants were engaged in a joint enterprise. The answer pleaded that the defendants constitute a single master under whose orders plaintiff was working when injured, thus making each liable for a tort of the other. Sauter & Adams v. Scrutchfield, 28 Mo.App. 150; Tannehill v. Kansas City, etc., Ry. Co., 279 Mo. 158, 213 S.W. 818; Perrin v. Wells, 22 S.W.2d 863; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Hobart v. Lee & Grodsky, 329 Mo. 706, 46 S.W.2d 859; Wells v. Wells, 288 S.W. 950; Eaton v. Wallace, 287 S.W. 614. (3) Amendment of the judgment is unnecessary. Even if one defendant should be held not liable, that would not affect the judgment as to the other. Stotler v. C. & A. Ry. Co., 200 Mo. 107, 98 S.W. 509; State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, 205 S.W. 626; State ex rel. St. Louis, etc., Rys. Co. v. Haid, 325 Mo. 532, 29 S.W.2d 714. (4) Plaintiff's instructions were correct. They required the finding of every ultimate fact essential to recovery, and were sustained by the evidence. Burns v. Polar Wave, etc., Co., 187 S.W. 145. (5) The verdict is warranted by the evidence. The testimony was clear upon every issue essential to recovery by plaintiff, and the jury found the issues in her favor. Ogilvie v. K.C. Pub. Serv. Co., 27 S.W.2d 733.

Tipton, C.J. All concur, except Gantt, J., not sitting.

OPINION

TIPTON

This court sustained relators' application to transfer this case from the Kansas City Court of Appeals. Christina Greer, plaintiff in the trial court, will be referred to as respondent, and Mr. and Mrs. P. H. McCrory, defendants in that court, will be referred to as appellants throughout this opinion.

In the circuit court of Jackson County, Missouri, respondent obtained a judgment for $ 7,000.00 against both appellants for personal injuries she received while working at their home. The judgment was affirmed by the Kansas City Court of Appeals and that court's opinion is reported in 192 S.W.2d 431.

Appellants contend that their separate motion for a directed verdict should have been sustained. We will state the evidence most favorable to respondent.

Respondent testified that she had done the laundry work for appellants at their residence in Kansas City, Missouri, since 1933, and that she performed this work in the basement of their residence. In describing the steps that descended from the first floor to the basement she stated that there was a light in the basement which did not light the steps all the way up, making them dark at the top. She told of a railing at the top of the stairway, a sort of shelf, where fruit, vegetables and other articles were stored. A hallway at the top of the stairway led from the basement door to the back door and out into the back yard.

On March 22, 1938, respondent arrived at appellants' residence at 6 o'clock A.M. and appellants and their daughter Harriett McCrory were there; the maid and chauffeur had not arrived. At 8 o'clock respondent started the laundry work and about 11:30 A.M. she started to the back yard to hang out the laundry. She had not noticed a mop on the stairway earlier that morning, but when she came up the stairs she noticed one on the landing at the side of the steps. She testified that she had spoken to Mrs. McCrory several times before about leaving a mop on the stairway. When she was coming up the steps on her way to the backyard to hang out the clothes on the day in question, she threw the mop behind the door in the hallway and Mrs. McCrory came to the door and "wanted to know what I was fussing about." Respondent told her, "If you don't quit putting the mop in the hall, somebody will fall and hurt themselves." About 3:30 P.M., respondent was bringing the clothes back into the house, carrying them in a basket which she held in front of her. She started down the steps and fell over the mop which was again on the stairway, falling all the way to the...