Stevens v. D. M. Oberman Mfg. Co.

• Decision Date: 18 February 1935
• Citation: 79 S.W.2d 516,229 Mo.App. 627
• Parties: RAY STEVENS, GUARDIAN, ETC., APPELLANT, v. D. M. OBERMAN MANUFACTURING CO. ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

79 S.W.2d 516

229 Mo.App. 627

RAY STEVENS, GUARDIAN, ETC., APPELLANT, v. D. M. OBERMAN MANUFACTURING CO. ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

February 18, 1935

Appeal from the Circuit Court of Boone County.--Hon. H. A. Collier Judge.

AFFIRMED AND REMANDED.

Affirmed and remanded.

Barney Reed and Sid C. Roach for appellant.

Ragland Otto & Potter, and Clark, Boggs, Cave & Peterson for respondents.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

This is an appeal by the plaintiff from the final order of the circuit court of Boone county, arresting a judgment for $ 4000, upon the motion therefor of defendants D. M. Oberman Manufacturing Company, a corporation, and D. M. Oberman, which judgment had been rendered in plaintiff's favor against such defendants in said court.

The action in which judgment was rendered was by the plaintiff, through his guardian and curator, against defendants and one Charles Melton for damages for injuries alleged to have been received by the plaintiff from being carelessly struck by an automobile while it was being carelessly operated and driven through the town of Dixon, Missouri, by defendant Charles Melton as chauffeur and employee of the other defendants above named. The verdict of the jury was in favor of defendant Melton and against the appealing defendant employers.

The petition in the cause does not state a cause of action against the appealing defendants, D. M. Oberman Manufacturing Company and D. M. Oberman, hereinafter for convenience referred to as employers, predicated upon their liability upon any actionable act of primary negligence or carelessness upon their part in the operation of the automobile but wholly predicates their liability upon the negligent and careless acts of their chauffeur, servant, and agent, Melton, in the operation of the automobile and in striking the plaintiff therewith; and it proceeds wholly upon the theory of respondeat superior, seeking to hold them liable for the consequential damages arising from the alleged careless and negligent act of Melton, their chauffeur within the scope of his employment.

Upon the trial, the verdict of the jury was as follows:

"We, the jury find for the plaintiff and against the defendants, D. M. Oberman Manufacturing Company, a corporation, and D. M. Oberman, and assess plaintiff's damages at the sum of $ 4000, and we further find in favor of the defendant, Charles Melton."

Upon this verdict, judgment was entered, reciting it and other preliminary proceedings and concluding as follows:

"It is therefore ordered and adjudged by the court that the plaintiff have and recover of and from the defendants D. M. Oberman Manufacturing Company, a corporation, and D. M. Oberman, the sum of four thousand dollars ($ 4000), the damages so assessed by the jury as aforesaid, together with all costs of this cause, and that execution issue therefor.

"It is further ordered and adjudged by the court that the plaintiff take nothing by his writ against the defendant Charles Melton, and that judgment herein be for said defendant, Charles Melton, and that said defendant, Charles Melton, recover of and from the plaintiff his costs in this behalf made and expended and that he have execution issued therefor."

Following the verdict and judgment, motions for new trial were filed by the plaintiff and each of the said employers. Such employers, in addition to their motions for new trial, also filed separate motions in arrest of judgment. Each of the motions for new trial was overruled upon hearing. The motions in arrest by the employers, however, were sustained; and the following judgment was entered in sustaining the same:

"It is therefore ordered and adjudged by the court that the judgment heretofore entered in this cause be, and the same is arrested as to the defendants D. M. Oberman Manufacturing Company and D. M. Oberman, and that said judgment is for naught held as to said defendants D. M. Oberman and D. M. Oberman Manufacturing Company, but that said judgment remain in full force and effect as otherwise entered."

Thereafter, the plaintiff filed an affidavit for an appeal in statutory form, and an appeal was granted to him to the Supreme Court. Employers appealed from the order overruling their motions for new trial but appear to have abandoned such appeal. There does not appear to have been any final judgment entered in the cause against the employers, other than the judgment in arrest of the judgment which had been entered upon the verdict of the jury. Such judgment upon said verdict was thereby completely wiped out as to said two employers. A judgment appears to have been rendered in favor of the non-appealing defendant Melton. It may not be regarded as final, however, from which an appeal might lie, but interlocutory only inasmuch as it did not dispose of all the parties to the record.

Plaintiff's appeal from the judgment in arrest reaching the Supreme Court, the plaintiff filed a motion therein to transfer such appeal to this court for the reason that the only question involved therein was whether or not the trial court erred in arresting the judgment against the employers, and that, as the amount of the judgment was only four thousand dollars, the appeal was within the jurisdiction of this court.

The Supreme Court, finding that the amount involved in the controversy was only four thousand dollars and that nothing appeared to give it jurisdiction of the appeal from the order in arrest, sustained plaintiff's motion to transfer and ordered that the appeal be transferred to this court as the court having jurisdiction of the same.

1. The only question upon this appeal for our decision is whether the trial court was right in sustaining the motion in arrest. This was so held by the Supreme Court in its opinion (found reported in 70 S.W.2d 899, l. c. 902), determining its jurisdiction as to the appeal and ordering the same transferred to this court.

That the trial court was right in sustaining the motion in arrest and in arresting the judgment, we think there can be no doubt.

2. It is prerequisite to a valid judgment against the principal that the agent or servant be convicted of negligence where recovery is sought against the principal--not upon any primary actionable negligence upon his part, but solely upon the negligent acts of the agent or servant and upon the theory that the principal is liable therefor. [McGinnis v. Chicago, R. I. & P. R. Co., 200 Mo. 347, 98 S.W. 590.] In that case, it was said by the court through Judge GRAVES, who wrote the opinion:

"We are firmly of the opinion that in cases where the right to recover is dependent solely upon the doctrine of respondeat superior, and there is a finding that the servant, through whose negligence the master is attempting to be held liable, has not been negligent, as was true in the case in hand, there should be no judgment against the master.

"The verdict in this case is a monstrosity. The jury say French was guilty of no negligence, yet, in the same breath, say the company was guilty of negligence, although nothing further was done by the company than what it did through French, its servant. Such a verdict is wrong, it is inconsistent and unreasonable."

The holding in McGinnis v. Chicago, R. I. & P. R. Co., supra, was approved by the Supreme Court in Lindman v. Kansas City, ...