Wegman v. Joseph

• Decision Date: 06 February 1917
• Docket Number: No. 14572.,14572.
• Parties: WEGMAN v. JOSEPH.
• Court: Missouri Court of Appeals

191 S.W. 1076

WEGMAN v. JOSEPH.

No. 14572.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs January 4, 1917.

Opinion filed February 6, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by H. P. Wegman against E. Z. Ziegler and William I. Joseph. From a judgment against both defendants in justice's court, defendant Joseph appealed to the circuit court, where judgment was rendered for plaintiff against Joseph and one Robert E. Murphy as surety on the appeal bond, and Joseph appeals. Judgment reversed.

Frank Coffman and Roscoe Anderson, both of St. Louis, for appellant. John W. Calhoun and M. R. Conkling, both of St. Louis, for respondent.

REYNOLDS, P. J.

This action was commenced before a justice of the peace by the plaintiff against one E. Z. Ziegler and appellant William I. Joseph. The statement or petition filed in the justice's court avers that Ziegler and appellant are co-partners in the theatrical business in the city of St. Louis, under the firm name and style of Ziegler Theater; that at the special instance and request of both defendants, plaintiff performed work and labor in the capacity of a moving picture operator at Ziegler's Theater, for which work and labor defendants agreed to pay him at the rate of $20 a week. Averring that he had worked between dates named and for the space of three weeks and two days, plaintiff avers that there are $65 justly due him, for which he demands judgment together with interest and costs.

The defendant Joseph filed an affidavit to the effect that he was at no time and is not now a partner of Ziegler and was not at any time and is not now connected in any way as a co-partner with the Ziegler Theater, as alleged in the petition but was connected only as an employé and creditor.

Judgment went against both defendants in the court of the justice of the peace and from this the defendant Joseph alone appealed to the circuit court, where, on a trial before the court and a jury, a verdict was found in favor of plaintiff and against defendant Joseph, and his damages assessed at $65. Judgment followed against Joseph and one Robert E. Murphy, his surety on the appeal bond. From this the defendant Joseph has duly appealed to our court.

Among the errors assigned are the failure of the court to sustain the demurrers to the evidence interposed by defendant, and the error of the court in giving three of the instructions at the instance of plaintiff, this latter on the ground that...