Wright v. Hannan & Everitt, Inc.

• Citation: 81 S.W.2d 303,336 Mo. 732
• Parties: George Wright, an Infant, by His Next Friend, Sydnor C. Wright, Appellant, v. Hannan & Everitt, Inc., a Corporation
• Decision Date: 30 March 1935
• Court: United States State Supreme Court of Missouri

81 S.W.2d 303

336 Mo. 732

George Wright, an Infant, by His Next Friend, Sydnor C. Wright, Appellant, v. Hannan & Everitt, Inc., a Corporation

Supreme Court of Missouri

March 30, 1935

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Affirmed.

Inman & Horsefield and T. J. Crowder for appellants.

(1) Motion in arrest of judgment is to call court's attention to errors appearing on the face of the record proper, which consists of the petition, summons, all subsequent pleadings and the verdict and judgment. Midwest Natl. Bank & Trust Co. v. Parker Corn Co., 245 S.W. 217; Stid v Railroad, 211 Mo. 411; Harvell v. Jackson County, 262 Mo. 403; Saddlery Co. v. Bullock, 86 Mo.App. 89. (2) On appeal from a judgment sustaining a motion in arrest of judgment, appellate court is precluded from considering all matters dehors the record, as all such matters can only be preserved by a motion for a new trial and a bill of exceptions. Midwest Natl. Bank & Trust Co. v. Parker Corn Co., 245 S.W. 217; State ex rel. Conant v. Trimble, 277 S.W. 920. (3) On appeal from order sustaining motion in arrest, only matters intrinsic to the record can be considered; therefore, if the petition states a cause of action which, if proved, would be consistent with the verdict, then it is error to arrest judgment. Porter v. Railroad Co., 28 S.W.2d 1035; Welch v. Bryan, 28 Mo. 30; 34 C. J. 43. (4) Where master and servant, or principal and agent, are sued jointly for injuries occasioned by the negligence of the servant or agent, when the petition alleges an omission or nonfeasance of duty causing injury to a third person, then the master is liable, and a judgment should not be arrested even though the servant, or agent, is exonerated. McGinnis v. Ry. Co., 200 Mo. 347; Steinhauser v. Spraul, 127 Mo. 541; Michely v. Miss. Valley Structural Steel Co., 299 S.W. 830; Orcutt v. Century Bldg. Co., 201 Mo. 424; Baird v. Larabee Flour Mill Corp., 220 S.W. 988; Lynch v. Railroad Co., 61 S.W.2d 924. (5) Where the defendant is required to introduce proof of a fact made up by the pleadings, such fact cannot be taken advantage of by a motion in arrest. Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 198.

Woodward & Evans for respondent.

(1) The respondent is charged with liability solely on the doctrine of respondeat superior on account of the alleged negligent acts of the defendant Scott. Inasmuch as the latter was exonerated by the jury verdict, there could be no liability against the respondent and the judgment against it was properly arrested. McGinnis v. Ry. Co., 200 Mo. 347, 98 S.W. 590; Wade v. Campbell, 211 Mo.App. 274, 243 S.W. 248; Michely v. Steele Co., 221 Mo.App. 205, 299 S.W. 830. (2) The petition charges that the defendant Scott was operating the automobile which caused plaintiff's injuries and it was his primary duty to operate it carefully so as to avoid injury to all members of the public. A failure to discharge this duty, whether by act of commission or omission, would constitute misfeasance so as to render him jointly liable with his master or principal. Restatement of the Law of Torts, sec. 302, p. 814, sec. 314, p. 854; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; State ex rel. Hancock v. Falkenhainer, 316 Mo. 651, 291 S.W. 466; Varas v. Stewart & Co., 223 Mo.App. 385, 17 S.W.2d 651; Whiteaker v. Ry. Co., 160 S.W. 1011; Baird v. Flour Mills, 220 S.W. 988; McGinnis v. Railroad, supra. (3) The petition alleged throughout that the defendant Scott was operating the automobile, and the appellant will not be permitted to take a position inconsistent with these allegations. State ex rel. Boatmen's Bank v. Webster Groves, 327 Mo. 594, 37 S.W.2d 908.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, a minor, brought suit by his next friend Sydnor C. Wright, against respondent, Hannan & Everitt, Inc., and Virgil Scott, to recover damages in the sum of $ 45,000 alleged to have been sustained when an automobile driven by Scott, as a servant of respondent, struck a truck upon which appellant was a passenger. On a trial a jury returned a verdict in appellant's favor and against respondent Hannan & Everitt, Inc. Appellant's damages were fixed, by the jury, in the sum of $ 10,000. The jury, by their verdict, found the issues in favor of the other defendant Virgil Scott. Respondent filed a motion in arrest of judgment, which the trial court sustained, whereupon appellant duly appealed.

The motion in arrest of judgment was sustained on the theory that upon the face of the record the verdict of the jury could not be sustained, that is to say, the jury in exonerating Scott, the driver of the car causing the injury, necessarily relieved respondent of liability.

If appellant's cause of action was based solely upon the misfeasance of the servant, Scott, the action of the trial court must be sustained because the jury by their verdict have said that Scott was not negligent. If Scott was not negligent it necessarily follows that respondent could not be held in damages on the doctrine of respondeat superior for an act of misfeasance of its agent. This has been the uniform holding of this court. [McGinnis v. Chicago, R. I. & P. Railroad Co., 200 Mo. 347, 98 S.W. 590; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899, l. c. 903 (9); Michely v. Mississippi Valley Structural Steel Co., 299 S.W. 830.] Many other cases could be cited but this is not necessary because appellant concedes this to be the correct rule of law. Appellant, however, insists that the rule above mentioned is not applicable to the case at bar because the petition in addition to charging specific acts of negligence on the part of the servant, which in law constitute misfeasance, also charged that the servant had been guilty of conduct, which in law amounted to nonfeasance, and that for nonfeasance only the master and not the servant was liable to third persons. This requires an examination of the petition. The charges of negligence therein read as follows:

"1. That the driver of said truck upon which plaintiff was a passenger saw, or by the exercise of the highest degree of care, could have seen, the automobile driven by the defendant, Virgil Scott, over and along Goodfellow Avenue and approaching said intersection, and in a position of imminent peril of being collided with by said truck, in time thereafter, by the exercise of the highest degree of care, to have stopped said truck, checked its speed, swerved its course or given timely and adequate warning of its approach and thereby have avoided the collision and injuries to the plaintiff, but negligently failed to do so.

"2. That the defendant, Virgil Scott, was negligently operating said automobile over and along Goodfellow Avenue at its intersection with Emma Avenue under all the facts and circumstances at a high and dangerous rate of speed.

"3. That the defendant, Virgil Scott, negligently failed to keep a lookout laterally ahead on the approach of his automobile to Emma Avenue, and negligently failed to discover the presence of said automobile truck in said intersection, in time thereafter to have stopped his automobile and avoided said collision, thereby causing the injuries to plaintiff.

"4. That the defendant, Virgil Scott, saw the truck upon which plaintiff was a passenger, or by the exercise of the highest degree of care could have seen it, in a position of imminent danger of being struck by his said automobile, in time thereafter, by the exercise of the highest degree of care, to have stopped said automobile, checked its speed, swerved its course, or given timely and adequate warning of its approach and thereby have avoided the collision and injuries to plaintiff, but negligently failed to do so."

Appellant in support of his theory has cited the McGinnis case, supra and also Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; Lynch v. M., K. T. Railroad Co., 333 Mo. 89, 61 S.W.2d 918; Steinhauser v....