Summary
In Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602, 604 [4], the judgment was reversed and the cause remanded for error in the giving of such forms of verdict and the court stated: "The giving, by the trial court, of this form of verdict was in effect, and tantamount to, an instruction that they were authorized to make such finding and was apparently so understood by them and therefore misleading and prejudicial."
Summary of this case from Quinn v. St. Louis Public Service CompanyOpinion
July 9, 1935.
1. APPEAL AND ERROR: Cross-Appeals. In an action against two defendants where a verdict was rendered against one and in favor of the other and both sides appealed, it should be treated as one case in the appellate court.
2. MASTER AND SERVANT: Respondeat Superior. In an action for personal injuries against the owner of a bus and its driver, not as joint tort-feasors, but where under the petition the employer was liable only on account of the negligence of the servant a verdict against the employer and in favor of the driver could not stand because of the doctrine of respondeat superior.
3. MASTER AND SERVANT: Appeal and Error. Where a verdict in an action for damages was rendered against the owner of the bus on account of the negligence of the driver and in favor of the driver, it was not necessary that the defendant owner of the bus should assign error in its motion for a new trial to entering of a judgment on the verdict because its invalidity appears on the face of the record proper; the petition and the verdict were inconsistent.
4. MASTER AND SERVANT. On the trial of an action for damages against the owner of a bus and its employee, the driver, where plaintiff sought recovery on account of the negligence of the driver, a form of verdict submitted to the jury by the court authorizing a verdict in favor of one defendant and against the other was reversible error.
Appeal from Circuit Court of City of St. Louis. — Hon. Fred J. Hoffmeister, Judge.
REVERSED AND REMANDED.
Wilton D. Chapman for Pickwick-Greyhound Lines, Incorporated.
(1) The cause of action being predicated wholly upon the negligence of appellant's employee, and the jury having found that the negligent acts alleged were not the proximate cause of plaintiff's injuries, the verdict should be reversed outright. McGinnis v. Ry. Co., 200 Mo. 347; Michely v. Miss. Valley Struc. Steel Co., 299 S.W. 830; So. Ry. Co. v. Harpin, 68 S.E. 1103; Williams v. Hines, 86 So. 695; Loveman v. Bayless, 160 S.W. 841; Pangborn v. Buick Motor Co., 105 N.E. 423; Doremus v. Root, 63 P. 572; Indiana Nitroglycerine Co. v. Lippincott Glass Co., 75 N.E. 649; Railroad Co. v. Jopes, 142 U.S. 18; Hobbs v. Ill. Cent., 152 N.W. 40; Simple v. So. Pac., 177 P. 871; Bardwell v. Shelton, Jr., Store Co., 4 S.W.2d 479. (2) The court erred in permitting the jury to consider the voluntary statement of witness that her case had been settled by appellant. Distlar v. Life Ins. Co., 206 Mo. App. 263, 227 S.W. 133; Scharff v. Standard Tank Car Co., 214 Mo. App. 658, 264 S.W. 56. (3) When an unfair and untruthful inference is raised in the mind of the jury by insinuations of plaintiff's counsel, defendants should be permitted to refute that inference. Mann v. Weiss, 185 Mo. App. 345. (4) Plaintiff's Instruction 2 should not have been given, as it permitted the jury to find against appellant without considering the contributory negligence, if any, of plaintiff. (5) The verdict was grossly excessive.
Gallant Hannigan and Robert L. Aronson for Hugo Ruehling.
(1) Instruction 4 was erroneous because the theory of contributory negligence which was set forth therein had not been pleaded in the answer of defendants. Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Lyons v. Wells, 270 S.W. 129; Bullmore v. Beeler, 33 S.W.2d 161; Benson v. Smith, 38 S.W.2d 749; Kuhlman v. Water, Light Transit Co., 307 Mo. 607, 271 S.W. 788; Abbott v. Ry. Co., 83 Mo. 271. (2) Instruction 3 was defective in failing to require that defendants exercise the highest degree of care to avoid collision under the humanitarian doctrine of negligence. Sec. 7775, R.S. 1929; Robinson v. Ross, 47 S.W.2d 122; Bruce v. East Side Packing Co., 6 S.W.2d 986; Hults v. Miller, 299 S.W. 35; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Martin v. Fehse, 55 S.W.2d 440; Payne v. Reed. 59 S.W.2d 43, 332 Mo. 343; Niehaus v. Schultheis, 17 S.W.2d 603; Roark v. Stone, 30 S.W.2d 647, 224 Mo. App. 554. (3) It was error for the court in this case to give and deliver to the jury four forms of verdict, since the liability of the employer for the acts of the employee had been conceded by counsel for defendants, and there was no issue of agency nor of independent liability. 64 C.J., pp. 1062-63, sec. 870. (4) It is proper to interrogate a witness on cross-examination as to prior inconsistent statements for the purpose of impeaching him and of affecting his credibility. State v. Allen, 183 S.W. 329, 267 Mo. 49; St. Louis v. Worthington, 52 S.W.2d 1003, 331 Mo. 182.
Gallant Hannigan and Robert L. Aronson for respondent.
(1) Ground of motion for new trial, charging that judgment was against the law and the evidence, is not sufficiently specific to preserve question for appellate review. Bond v. Williams, 214 S.W. 202, 279 Mo. 215; Lynch v. Ry. Co., 106 S.W. 68, 208 Mo. 1; De Maria Janssen v. Baum, 52 S.W.2d 418, 227 Mo. App. 212; Whitehead v. Liberty Natl. Bank, 56 S.W.2d 833; Belcher v. Haddix, 44 S.W.2d 177; Williams v. Jenkins, 32 S.W.2d 580, 326 Mo. 722; Greer v. Carpenter, 19 S.W.2d 1046. (2) An assignment of error that verdict is against the law is insufficient for indefiniteness and presents no question. Matthews v. Karnes, 9 S.W.2d 628; Pfotenhauer v. Ridgway, 271 S.W. 50, 307 Mo. 529; State ex inf. Barrett ex rel. McCann v. Parrish, 270 S.W. 688, 307 Mo. 455; Harmon v. Irwin, 219 S.W. 392; McCahon v. Quick Service Laundry Co., 263 S.W. 238; Howlett v. Randol, 39 S.W.2d 463; State ex rel. Ward v. Trimble, 39 S.W.2d 372, 327 Mo. 773; Campbell v. Campbell, 20 S.W.2d 655. (3) Appellant cannot complain of statements by a witness elicited by the cross-examination of appellant's counsel. The matter of declaring a mistrial for alleged prejudicial remarks of a witness rests within the discretion of the trial court. Scharff v. Standard Tank Car Co., 264 S.W. 56; Distler v. Columbian Natl. Life Ins. Co., 227 S.W. 133; Plannett v. McFall, 284 S.W. 850. Cases under point 1. (4) The appellant was not entitled to rehabilitate its witness Felhaber after successfully objecting to his impeachment. Kent v. Miltenberger, 15 Mo. App. 480. (a) Former statements not under oath are not admissible to corroborate a witness. State v. Creed, 252 S.W. 678, 299 Mo. 307; Radler v. Ry. Co., 51 S.W.2d 1011, 330 Mo. 968. (b) The trial court properly excluded from evidence the conclusions and opinions of the witness. (c) The scope of cross-examination and of redirect examination are largely within the discretion of the trial court. (5) Any possible deficiency in Instruction 2 by omission of reference to the issue of contributory negligence is cured and supplied by defendants' Instructions 3, 4 and 5 on that issue; the entire charge must be read together. Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Johnson v. Boaz-Kiel Const. Co., 22 S.W.2d 881; Smith v. Gately Stores, 24 S.W.2d 200; Allison v. Dittbrenner, 50 S.W.2d 199; Kaiser v. Jaccard, 52 S.W.2d 20; Mitchell v. Ry. Co., 69 S.W.2d 290; Davis v. Independence, 49 S.W.2d 101, 330 Mo. 201. (6) The verdict is not excessive. Beebe v. Kansas City, 34 S.W.2d 57, 327 Mo. 67; Morris v. Atlas Portland Cement Co., 19 S.W.2d 865; Snyder v. American Car Foundry Co., 14 S.W.2d 603; Wheeler v. Ry. Co., 18 S.W.2d 494; Trussell v. Wright, 285 S.W. 114; Haberman v. Kuhs, 270 S.W. 399; Farley v. Lehrack, 272 S.W. 987. (7) Plaintiff's judgment against respondent should not be ordered retried as to amount merely because plaintiff is successful on his appeal in the companion case. Wilton D. Chapman for Melville Dahncke.
Plaintiff was injured when an automobile he was driving and a bus, owned and operated by the corporate defendant Pickwick-Greyhound Lines and in charge of the defendant Melville Dahncke, collided on Missouri State Highway 61 at or near the intersection of that highway and State Highway No. 25. Plaintiff brought this action for damages for the injuries so sustained. The petition alleges that the defendant Pickwick-Greyhound Lines is a corporation owning and operating motorbusses over Missouri State Highway 61 and that defendant Dahncke "was at all times mentioned the agent and chauffeur of the defendant, Pickwick-Greyhound Lines." It is then alleged that the collision was caused by the negligent manner, in several specified respects, in which Dahncke drove the bus predicating the liability of the Pickwick-Greyhound Lines, the corporate defendant, wholly and solely upon the rule or doctrine of respondeat superior. Plaintiff asked damages in the sum of $40,000. Defendants filed a joint answer, a general denial followed by allegations to the effect that "whatever injuries, if any" plaintiff received "were directly due to or were contributed to by plaintiff's own negligence and carelessness" in the manner stated. Plaintiff's replication was a general denial. Upon a trial in the Circuit Court of the City of St. Louis the jury returned the following verdict: "We, the jury in the above entitled cause, find the issues herein joined in favor of the plaintiff and against defendant Pickwick-Greyhound Lines, Inc., a corporation, and we assess plaintiff's damages at the sum of $7500 (seventy-five hundred dollars) and we further find in favor of defendant Melvin Dahncke." The motion of the Pickwick-Greyhound Lines for a new trial was overruled as was plaintiff's motion for new trial as to defendant Dahncke and judgment entered in conformity with the verdict from which both plaintiff and the Pickwick-Greyhound corporation appealed.
While any party to the action considering himself aggrieved may appeal from the judgment cross-appeals or separate appeals in the same case are not received and treated as separate cases in the appellate court but "the case retains its unity throughout the appeal" and is "properly only one case in that appellate court which has jurisdiction." [Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839; Morton v. Southwestern T. T. Co., 280 Mo. 360, 217 S.W. 831; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390.] As each appellant has separately perfected an appeal and each has been separately docketed here (Pickwick-Greyhound Lines' appeal as No. 32959, and plaintiff's appeal as No. 32960) we make the foregoing observation and proceed to a consideration of the two appeals as one case. In view of the cross-appeals the amount in dispute is such as to give this court jurisdiction. [See cases cited supra.]
Pickwick-Greyhound Corporation, as appellant, submits that the verdict and judgment in this case cannot stand since under the pleadings the corporate defendant's liability, if any, is wholly dependent upon a finding by the jury that the alleged negligent acts of its employee caused plaintiff's injuries and the servant having been exonerated by the verdict of the jury it follows that there can be no liability on the part of the master and the judgment against it cannot therefore stand and must be reversed. As we have pointed out the action is not against the two defendants as joint tort-feasors but under the petition if the employer is liable at all it is because of the doctrine of respondeat superior, "the rule of law which holds the master responsible for the negligent act of his servant committed while the servant is acting within the general scope of his employment and engaged in his master's business." Such is this case. The gravamen of the charge is the negligence of the employee and no recovery can be had unless it is found by the jury that the employee was negligent therefore when the jury found in favor of the defendant employee, and thereby that he was not negligent, it necessarily followed there could be no liability on the part of the employer. The same situation as to verdict and judgment was ruled in McGinnis v. Chicago, Rock Island and Pacific Ry. Co., 200 Mo. 347, 98 S.W. 590. In that case McGinnis, an employee of the defendant railway company, was injured while engaged in loading a handcar onto a railroad work car. It was alleged that the injury was caused by the negligent act of one French, a fellow workman. McGinnis brought an action for damages against French and the railway company based necessarily, as in the instant case, on the doctrine of respondeat superior. A verdict was returned, and judgment entered thereon, in favor of defendant French, but against the defendant company in the sum of $10,000. The company appealed but the plaintiff "took no further action as to" defendant French "by way of appeal or otherwise." This court said: "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 attempted 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. . . . French has been acquitted of the charge of negligence. Plaintiff takes no further action as to him by way of appeal or otherwise. . . . It follows that the judgment should be reversed and it is so ordered." [See, also, Michely v. Mississippi Valley Structural Steel Co., 221 Mo. App. 205, 299 S.W. 830, and Stephens v. D.M. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899, and cases there cited.]
But, as respondent, plaintiff says this complaint and contention of the Pickwick-Greyhound Corporation was not sufficiently and specifically set forth in its motion for a new trial and therefore cannot be considered on appeal. The grounds in its motion for a new trial to which the Pickwick-Greyhound corporation directs our attention as being sufficiently inclusive are: that "the verdict is against the law;" "the verdict is against the evidence;" and that "the verdict is against the law, the evidence and the law under the evidence." Appellant's contention, to which we shall presently refer, is, in effect, that the verdict, under the pleadings and the evidence, is without warrant of law and in view thereof defendant contends that the grounds noted while general are sufficient but without so ruling or entering here upon a discussion as to the sufficiency of the motion in question, or the office of a motion for new trial generally and the requirements thereof, we think the defect in, or invalidity of, the verdict and judgment complained of arises on the face of the record proper and therefore can be properly reviewed here had no motion for a new trial been filed. [Stephens v. D.M. Oberman Mfg. Co., supra: Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126; Warren v. Badger Lead Zinc Co., 255 Mo. 138, 164 S.W. 208; Durst v. Townes, 224 Mo. App. 675, 31 S.W.2d 583; Chilton v. Drainage District, 224 Mo. App. 467, 28 S.W.2d 120; City of St. Louis v. Dietering (Mo. App.), 27 S.W.2d 711; Dysart v. Crow, 170 Mo. 275, 70 S.W. 689; State ex rel. v. Carroll. 101 Mo. App. 110, 74 S.W. 468.] The petition, all subsequent pleadings, the verdict and the judgment are included in the record proper. [Capitain v. Mississippi Valley Trust Co. (Mo.), 177 S.W. 628; Pickel v. Pickel, 176 Mo. App. 673, 159 S.W. 774; Fenn v. Reber, 153 Mo. App. 219, 132 S.W. 627.] The petition and the cause of action as therein stated and the verdict considered it is apparent that the verdict is inconsistent and without any warrant or basis in law and that no valid judgment can be founded, or stand, thereon against the Pickwick-Greyhound Corporation because the verdict "shows that the jury found the facts upon which" that defendant's "liability must depend" in its favor; "namely that the employer was not negligent." [Stephens v. D.M. Oberman Mfg. Co., supra.] As said in the McGinnis case, supra, the "verdict . . . is a monstrosity" and cannot be permitted to stand therefore the judgment entered thereon must be reversed but error presented upon plaintiff's appeal, and which appears to have occasioned the erroneous verdict, requires that the cause be remanded.
Plaintiff, as appellant, cites as error the action of the trial court, to which the plaintiff objected and excepted, in giving to the jury the form of verdict which they returned herein as one of the written forms of verdict which they were authorized to return. In this connection plaintiff correctly says that under the pleadings and evidence in this case "if either" of the defendants was liable "both were liable." Both plaintiff and defendants concede that under the pleadings in this case the liability of the employer, the corporate defendant, is dependent solely upon the doctrine of respondeat superior and that there is no basis, either in the pleadings or evidence, for the verdict returned herein. The giving, by the trial court, of this form of verdict was, in effect, and tantamount to, an instruction that they were authorized to make such finding and was apparently so understood by them and therefore misleading and prejudicial. The judgment is therefore reversed and the cause remanded. Sturgis and Hyde, CC., concur.
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.