Trent v. Lechtman Printing Co.

• Decision Date: 31 December 1912
• Parties: CLAY H. TRENT, Respondent, v. LECHTMAN PRINTING COMPANY, Appellant
• Court: Kansas Court of Appeals

152 S.W. 376

167 Mo.App. 540

CLAY H. TRENT, Respondent, v. LECHTMAN PRINTING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 31, 1912

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

AFFIRMED.

Battle McCardle for appellant.

(1) The demurrer to the plaintiff's evidence should have been sustained because there was no evidence upon which a jury was entitled to pass. (2) The instruction No. 1, asked by defendant, in the nature of a peremptory instruction should have been given for the same reason. a. Under plaintiff's own testimony the danger of attempting to remove cards from the press, in the condition alleged, was so imminent that no person of ordinary prudence would have persisted in it. b The danger was obvious, and plaintiff's testimony showed that he did not, and could not have relied upon any alleged assurance given by the foreman. c. The testimony of plaintiff shows that the foreman gave him no assurance, and that all he did at last complaint was to frown and look dissatisfied. A frown is not an assurance. d. All the testimony in the case showed plaintiff was not entitled to recover. Coin v Lounge Co., 222 Mo. 488; Epperson v. Cable Co., 155 Mo. 346; Showalter v. Fairbanks, 88 Wis. 376; Whaley v. Coleman, 113 Mo.App. 598; Knorpp v Wagner, 195 Mo. 637; Myers v. Glass Co. , 129 Mo.App 557.

Yates & Mastin and D. E. Bird for respondent.

(1) Appellant's sole point is that the case should not have gone to the jury. An examination of the record will show that the evidence is substantially the same as upon the former appeal. The opinion of this court upon that appeal is decisive of this case and every question in it. Trent v. Printing Co., 141 Mo.App. 437. Inasmuch as counsel at this time is able to make no pretense of error save that based upon a matter absolutely decided upon the former appeal, it is evident that this appeal is not in good faith, is for vexation and delay and the judgment should be affirmed with ten per cent damages. This point is not perfunctorily made; unless the statute is applied to this case, it may as well be repealed.

OPINION

JOHNSON, J.

--This case was here on a former appeal from a judgment recovered by plaintiff. We reversed the judgment and remanded the cause on account of misconduct of plaintiff's counsel in his argument to the jury. The case was tried again resulting in a verdict and judgment for plaintiff in the sum of $ 3500. Again defendant appealed and we are asked to reverse the judgment on the...