Varas v. James Stewart & Co.

• Decision Date: 04 June 1929
• Citation: 17 S.W.2d 651,223 Mo.App. 385
• Parties: JOSEPH P. VARAS, RESPONDENT, v. JAMES STEWART AND COMPANY, INC., A. CORPORATION, AND WILLIAM LAYES, APPELLANTS. [*]
• Court: Missouri Court of Appeals

17 S.W.2d 651

223 Mo.App. 385

JOSEPH P. VARAS, RESPONDENT, v. JAMES STEWART AND COMPANY, INC., A. CORPORATION, AND WILLIAM LAYES, APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

June 4, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

REVERSED.

Judgment reversed.

O'Neill Ryan and Case, Voyles & Stemmler for appellants.

(1) Plaintiff's action is one for deceit, that is, for the alleged false statement by defendants to plaintiff as to the condition of the automobile truck. To such a cause of action actual knowledge by defendants of a contrary condition was a necessary element, and presumptive knowledge was not enough. There was no duty on defendants, so far as plaintiff repairman was concerned, to know the condition of the truck. So far as Layes was concerned, there was no contractual relationship whatsoever. As to Stewart & Company, the contract of bailment involved was not of such a nature as to create such a duty. The giving of instruction No. 1 therefore, which permitted a recovery for plaintiff if appellants, "by the exercise of ordinary care would have known," of such alleged condition, was prejudicial error. King v. National Oil Co., 81 Mo.App. 155; Tipton v. Barnard & Leas Mfg. Co., 302 Mo. 162, 257 S.W. 791; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630; 2 Cooley, Torts, p. 148 et seq. (2) Plaintiff's amended petition fails to state a cause of action. It pleads actual and presumptive knowledge in the alternative. The allegation of presumptive knowledge was not sufficient to state a cause of action (see authorities under point 1). When in the alternative, each alternative must state a cause of action; otherwise the petition as a whole fails to state a cause of action. 31 Cyc, pp. 74-75; Berry v. Peacock C. & D. Co. (Mo. App.), 253 S.W 456; Beall v. January, 62 Mo. 434. (3) No proper foundation was laid to render competent as against James Stewart & Company, Inc., the testimony as to the alleged representation of Layes to respondent that there was "nothing else wrong (with the truck) that I know of," and the court should have admonished and instructed the jury that such testimony was not to be taken as substantive evidence against James Stewart & Company, Inc. (a) There must be a prima-facie showing of the fact of agency and the extent of the agent's authority before his statements become competent evidence against his principal. 1 Ruling Case Law, p. 511; Orchard Company v. Gilmour, 159 Mo.App. 204, 140 S.W. 763. (b) Layes was a mere ministerial servant, a chauffeur, driving the truck when and where his superiors directed him. In bringing the truck to Varas, he was performing a mere ministerial act, coupled, at most, with the duty to transmit his superior's message to Varas to repair the brake bands. This was the limit of his duty. Notice to or knowledge of a mere ministerial servant will not be imputed to the principal. 2 Corpus Juris, p. 865; Wheeler v. Stockyards & Term. Co., 66 Mo.App. 260; Mining Co. v. Fidelity & Cas. Co., 161 Mo.App. 185, 142 S.W. 438; Orchard Company v. Gilmour, supra. (4) An admission by a servant, made after the accident as a mere casual conversation or narrative statement and no part of the res gestae, may be admissible against the servant himself, but is not admissible in evidence against the master. The testimony as to the alleged statements of Layes made after the injury were not binding on Stewart & Company, and the court, in admitting such testimony, should have so admonished and instructed the jury. Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002; Redmon v. Railway Co., 185 Mo. 1, 84 S.W. 26; St. Charles Savings Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Adams v. Railroad Co., 74 Mo. 553. (5) The condition of the truck three days after the injury raised no presumption as to its condition on the day of the injury, and plaintiff's testimony as to such later condition should not have been admitted by the court. Caldwell v. Payne, 246 S.W. 312; Newcomb v. Ry. Co., 169 Mo. 409; Martin v. Fox, 40 Mo.App. 668. (6) It was prejudicial error to give instruction 3, offered by the plaintiff. This stated a mere abstract proposition of law. It neither made any reference to, nor required any application to, the facts in the case. Nor was its mischief rendered harmless by reading it in connection with the rest of the instructions, as they nowhere hypothesized any facts relating to the matter of agency. It could not have been otherwise than misleading and confusing, since the matter of agency was one of the fundamental issues in the case. Knodinger v. Citizens Bank of Maplewood, 300 S.W. 311; Wilsch v. Gleiforst, 259 S.W. 850; Stipel v. Piggott, 219 Mo.App. 222, 269 S.W. 942; Warder v. Seitz, 157 Mo. 140, 57 S.W. 537; Turner v. Loler, 34 Mo. 461. (7) Interrogation of the members of a jury panel as to their interest in, or connection with, an insurance company not a party to the suit is proper only so long as it is done in good faith. When, by unnecessary repetition of the question, it becomes apparent that the real purpose of the interrogation is to impress on the panel the fact of insurance, then plaintiff has demonstrated his lack of good faith, the interrogation becomes improper and prejudicial, and the court, upon proper motion, should discharge the panel. Kelley v. Sinn, 277 S.W. 36; Chambers v. Kennedy, 274 S.W. 726; Pettit v. Goetz Sales Co., 281 S.W. 973. (8) It was prejudicial error for the court to permit counsel for plaintiff, in the argument, to state that the plaintiff had suffered a loss of income in the sum of $ 3000 and that the evidence showed such a loss, or words to that effect. There was no such evidence, and instruction No. 3, on the measure of damages, failed to include an item for loss of earnings. Chawkley v. Ry. Co., 297 S.W. 20; Jackman v. Ry. Co., 206 S.W. 244; Chapman v. Ry. Co., 269 S.W. 688; Neff v. City of Cameron, 213 Mo. 350, 111 S.W. 1139. (9) It was prejudicial error for the court to permit counsel for plaintiff, in the argument, to state to the jury that the jury could not return a verdict in favor of plaintiff and against James Stewart & Company, Inc., and in favor of Layes, but that the jury, in order to return a verdict against James Stewart & Company, Inc., was required to return a verdict against both defendants. There was nothing to this effect in the instructions, and counsel cannot go outside of the instructions in stating the law to the jury. See authorities under point 8. (10) The verdict is against the weight of the evidence: (a) With respect to the vital element of knowledge of the alleged defect, it is based entirely on the alleged admissions of Layes after the injury. Even if properly admitted, these admissions had but little, if any, weight. They did not constitute substantial evidence; they constituted but the merest scintilla. Layton v. Chinberg (Mo. Sup.), 282 S.W. 434. (b) The testimony on behalf of plaintiff is improbable and contrary to sound reason. (c) Plaintiff failed to establish causal connection between the alleged bare wire and his injury. (d) Plaintiff's own testimony shows that, if he had exercised ordinary care for his own safety, he would have discovered the alleged defect.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The giving of instruction No. 1 was not error. (a) Appellants cannot avoid responsibility by merely showing that they did not know of the defective condition of the commutator wire since it was their duty to know, if it could have been discovered by reasonable care and diligence. Eudy v. Fed. Lead Co., 220 S.W. 504; Walling v. Mo. Stair Co., 227 S.W. 879; Zein v. Pickel Stove Co., 273 S.W. 165; Chapman v. Mining Co., 177 Mo.App. 264; Ogan v. R. R. Co., 142 Mo.App. 248; Jost v. American Car & Foundry Co., 246 S.W. 340; Cook v. Atlas Portland Cement Co., 263 S.W. 1027; Birkard v. Rope Co., 217 Mo. 466; Steinhauser v. Spraul, 114 Mo. 551; Scheckella v. Mining Co., 180 S.W. 12. (b) Layes had actual knowledge and his knowledge was knowledge on the part of the company, it being a material fact coming to his knowledge with reference to the subject of his agency, and a presumption that he had discharged his duty of disclosure to his principal. Bank v. Lovitt, 114 Mo. 519; Bartlett v. McCallister, 289 S.W. 814; Kimberline v. Tel. Co., 206 S.W. 430; Bodermueller v. Columbia Box Co., 237 S.W. 879; Mason v. St. Louis Transit Co., 237 Mo. 425. The company acted through Layes in a matter in which the information possessed by Layes was pertinent. (c) The principal is affected with knowledge of all material facts of which the agent receives notice or acquires knowledge while acting in the course of his employment and within the scope of his authority, although the agent does not in fact inform his principal thereof. Hickman v. Green, 123 Mo. 165; Hedrich v. Beeler, 110 Mo. 91; Meier v. Blume, 80 Mo. 179; Babbitt v. Kelly, 96 Mo.App. 529; Jackson Co. v. Schmid, 141 Mo.App. 229; Johnson & Co. v. Ice & Refrigerating Co., 143 Mo.App. 441. (d) Appellants were bound to know that in replacing brake linings on their automobile the automobile would be cranked. Kippenbrock v. R. R. Co., 270 Mo. 479. And the danger was a known one, in so far as appellants were concerned. Haney v. Mining & Smelting Co., 205 S.W. 93. (e) As to the liability of appellant Layes to respondent, a third person: General Rule. An agent who violates a duty which he owes to a third person is answerable to such person for the consequences whether it be an act of malfeasance of misfeasance or nonfeasance. 20 A. L. R. 99 et seq., and cases cited; 18 R. C. L. 819, sec. 272. (1) The term "nonfeasance" refers to the omission on the part of the agent to perform a duty which he owes to his principal by virtue of...