State v. Trimble

• Decision Date: 30 December 1921
• Docket Number: No. 22924.,22924.
• Citation: 236 S.W. 651,291 Mo. 227
• Parties: STATE ex rel. JENKINS v. TRIMBLE et al. Judges.
• Court: Missouri Supreme Court

236 S.W. 651

291 Mo. 227

STATE ex rel. JENKINS v. TRIMBLE et al. Judges.

No. 22924.

Supreme Court of Missouri, in Banc.

December 30, 1921.

Certiorari by the State, on the relation of M. R. Jenkins, against:Francis E. Trimble and others, Judges of the Kansas City Court of Appeals, to quash a judgment (229 S. W. 402). Writ quashed.

Thomas H. Hicklin and Scott J. Miller, both of Chillicothe, for relator.

Schmitz & Marshall, of Chillicothe, for respondents.

ELDER, J.

Relator seeks by writ of certiorari to quash a judgment rendered by the Kansas City Court of Appeals, 229 S. W. 402, affirming a judgment for $125, entered by the circuit court of Livingston county, in an action brought by the firm of Minteer, Williams & Minteer against M. R. Jenkins (relator herein) to recover the value of certain awnings ordered by relator and delivered by the aforesaid firm at the residence of relator in the city of Chillicothe.

The evidentiary facts in the case are thus stated in the opinion of the Court of Appeals:

"Plaintiff, a partnership consisting of J. C. Minteer, R. L. Williams, and H. W. Minteer, is engaged in the hardware business in Chillicothe. One evening in the latter part of May, 1919, H. W. Minteer, his wife, and one Mable Grace were in the home of the defendant. There were present also Mrs. Louise Kinney, a daughter of defendant, who, at the time, lived in her father's house as a member of his family. Defendant, who is quite deaf, also was present on the occasion in question. The daughter, Mrs. Kinney, in the presence of the group there in the house, asked her father if it would be all right for her to order the awnings for the house, referring to the fact that Mr. Minteer was then present. To this inquiry defendant is alleged to have replied `Yes.' The order for the awnings was then given to Mr. Minteer by Mrs. Kinney, who afterwards selected from samples the material for the same, directed plaintiff in the measurement of the porches and windows of the house, and instructed him to have the awnings made. Plaintiff ordered the awnings made by some firm not a resident of Chillicothe, and after some delay, the awnings were delivered, about August 4, 1919, at the residence of defendant. It is alleged the awnings would not fit any house other than the one for which they were especially made."

The pleadings are referred to by the Court of Appeals as follows:

"Plaintiff's second amended petition, upon which the case went to trial, alleges that the awnings were ordered and delivered and that defendant had neglected and refused to pay for them. The answer denies that he ordered the awnings, and states that if they were ordered through another person, the order was afterward canceled. The reply was a general denial of defendant's answer."

I. Relator contends that instruction A, given by the trial court on behalf of plaintiffs, ignored the defense set up by relator in his answer, viz., the question of relator having countermanded the order for the. awnings, and that the error of such omission was not cured by instructions 1, 3 and 5 given for relator. Relator insists that the holding of the Court of Appeals that no error was committed in giving instruction A and that relator's theory of the case was fully covered by his instructions 1, 3 and 5, is in conflict with three certain decisions of this court. This alleged conflict we shall discuss later. Before doing so, however, we set out the four instructions in dispute, referred to In the opinion of the Court of Appeals.

Plaintiff's Instruction A.

"The court instructs the jury that if you believe and find from the evidence that the defendant, M. R. Jenkins in the spring of 1919, in the presence of H. W. Minteer, a member of the plaintiff partnership, authorized his daughter, Louise Jenkins Kinney, to order awnings for his home situated in the city of Chillicothe, Livingston county, Missouri, and that upon said authorization, the said Louise Jenkins placed an order with the plaintiff partnership, Minteer, Williams & Minteer, for such awnings, and that in the month of August, 1919; as a result of said order, said awnings were delivered to the defendant, M. R. Jenkins, in the city of Chillicothe, Missouri, then your verdict will be for the plaintiff in such sum as you find to be the reasonable value of said awnings at the date of the order and delivery, not exceeding the sum of one hundred twenty-five dollars, together with interest at six per cent. on such sum as you may find to be the reasonable value of said awnings at the date of the order and delivery thereof, from the date of demand of payment thereof, if you find that such demand was made by the plaintiff upon the defendant."

Relator's Instructions 1, 3 and 5.

No. 1. "The court instructs the jury that it devolves upon the plaintiff to prove that the defendant authorized Mrs. Kinney to order the awnings; and if you believe that the defendant is hard of hearing and did not understand that she was asking for authority to order awnings from the plaintiff and did afterwards notify one of the plaintiffs that he did not order the same and did not want them, then you will find for the defendant, although you may believe that the plaintiff ordered said awnings and had them specially made to fit the windows of defendant's house."

No. 3. "The court instructs the jury that the defendant had a right at any time before the plaintiff had incurred expense having the awnings made especially for defendant's house, to countermand the order, if he made it; if you believe he did countermand said order, then you will find for the defendant."

No. 5. "The court instructs the jury that the defendant is not bound by any order given by any one than himself to plaintiff, unless said order was given by his authority and permission or was given in his presence and sanctioned and ratified by him with a full knowledge that the order was being made. And, although you may believe that Mrs. Kinney, defendant's daughter, gave plaintiffs the order, and if you further believe that he notified one of the plaintiffs who was measuring for the awnings, if you believe he did, that he did not order them and would not take them, then you will find for the defendant."

With reference to these instructions the Court of Appeals, in its opinion, has the following to say:

"Objection is made to plaintiff's instruction A, in that it purported to cover the entire case and direct a verdict and that it omitted an element of the defense, to wit: The question of the cancellation of the order for the awnings. Plaintiff contends that the question of cancellation was set forth in defendant's instructions 1, 3, and 5, and that the cancellation of the order was not an element of plaintiff's case.

"There is a long line of decisions holding that the giving of an instruction on the part of the plaintiff, purporting to cover the whole case and directing a verdict, which ignores matters of defense properly raised by defendant, is improper, unless the defect is cured by the giving, on behalf of defendant, of proper instructions covering such matters of defense. Judge Scott, in Clark v. Hammerle, 27 Mo. loc. cit. 70, announced that—

"`In the trial of causes neither party is bound to ask instructions. If they are not asked, the giving of them is at the discretion of the court.:a instructions are asked on the whole case, or of any particular matter arising out of it, which the court refuses, it is not bound afterwards to give instructions of its own as substitutes for those refused. * * * A party therefore who asks an instruction on the whole case must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary.'

"This doctrine has been affirmed and is the doctrine today. Of this decision in the Clark-Hammerle Case, Graves, J. (quoting judge Lamm) says, in Wingfield v. Railroad, 257 Mo. 347, 166 S. W. 1041:

"`It runs, however, hand in glove with another so qualifying it as to make it a usable rule in working out the practical administration of justice in concrete cases, viz., that the mere pretermission in plaintiff's instruction of an element in defendant's case (a part and parcel of the defense interposed) may not work reversible error if that very element is plainly and effectually put to the jury in other instructions on either side in such form as not to cause confusing contradiction between instructions, but rather to make more specific, in, say, defendants' instructions, a matter that was dealt with in general form in plaintiff's.' For the evolution of this doctrine and its application in concrete cases, Judge Graves cites: Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railway Co., 37 Mo. loc. cit. 263, 90 Am. Dec. 382; Fitzgerald v: Hayward, 50 Mo. loc. cit. 523; Owens v. Railways, 95 Mo. loc. cit. 181, 8 S. W. 350, 6 Am. St. Rep. 39. `But it will be observed,' he continues, `that neither in the principal opinion in the Owens Case nor in the dissenting opinion in the Sullivan Case (88 Mo. 169) was the doctrine in the Clark-Hammerle Case exploded. To the contrary, it was left to stand and run with the qualification that if the whole body of the law delivered to the jury put the case in correct form, then all essentials to recovery, or to the defense, need not appear in one instruction,' (citing Gordon v. Burris, 153 Mo. loc. cit. 232, 54 S. W. 546; Gibler v. R. R. Association, 203 Mo. loc. cit. 222, 101 S. W. 37, 11 Ann. Cas. 1194; Stauffer v. Railroad, 243 Mo. 332-333, 147 S. W. 1032, and a long line of other decisions, upholding the same principle).

"Under the laws of this state to entitle a plaintiff to recover, he is required: (1) To state in his petition the facts which are necessary to constitute his...