Grattan v. Suedmeyer

COX, J. The plaintiff assigns as error the action of the court in directing a verdict in favor of defendants William Suedmeyer, Sr., and William, Jr., and in refusing plaintiff permission to take a nonsuit. The striking of plaintiff was by iDmil Suedmeyer and the theory upon which plaintiff seeks to hold the other defendants responsible therefor is that he was at the time their servant; William, Sr., being the employer and William, Jr., being at the time the foreman in charge of the work. If the servant, in performing the work of the master, injures a person, either through malice or negligence, the master is liable, but if the servant is not doing the work of the master at the time of the injury, but is, at that particular time, following his own inclinations aside from his master’s work, the master is [724] not liable, and this is the rule by which to test the master’s liability. [Gerretson v. Dunckel, 50 Mo. 104; Canfield v. C. R. I. & P. R. R., 59 Mo. App. 354; Collette v. Rebori, 107 Mo. App. 711, 82 S. W. 552; Heahl v. Wabash R. R., 119 Mo. 325, 24 S. W. 737.] In Garretson v. Dunckel the court said, “In determining whether a particular act is done in the course of a servant’s employment it is proper first' to inquire whether the servant was at the time engaged in serving his master. If the act was done while the servant was at liberty from his services and pursuing his own ends exclusively, there can be no question that the master is not responsible.” The work of' Emil, who struck and injured plaintiff, was to assist in placing concrete work in the basement of the building. He was not instructed to remove or punish persons who might come upon the premises and his act in assaulting plaintiff had no connection whatever with his duties as a laborer in the concrete work. It is clear that neither William, Sr., nor William, Jr., could be held responsible for the act of Emil, on the ground that he was employed by them and committed the assault in the line of hfs employment. It is contended that William, Jr., is liable because he called Emil and was directly responsible for the assault in that way. This position is also untenable. At the time the call was made William, Jr., and Fitzgerald were engaged in a difficulty, and the most that can be made out of this call to Emil is that he was asking Emil to assist him in the difficulty with Fitzgerald, and if plaintiff’s testimony is to be believed, he, the plaintiff, was at that time taking no part in the difficulty, but was a mere onlooker, and if under these circumstances Emil turned aside and assaulted plaintiff, he must have done so of his own volition, and not in response to the call of his brother. It is further contended that defendant, William, Sr., should be held responsible because he has ratified [725] the act by continuing defendant, Emil, in his employ, and assisting him in the defense of this action. Can it be said that a father is to be held responsible for the tort of his son because he refused, on receiving notice of his son’s act, to discard him, but continues to treat him as a father should treat a son? Such a proposition is too monstrous to be for a moment countenanced in a court of justice. The action of the court in giving the peremptory instruction in favor of defendants, William Suedmeyer, Sr., and William, Jr., was correct. Should the court have permitted plaintiff to take a nonsuit with leave as asked by him? The statute, section 639, Revised Statutes 1899, provides: “That the plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court and not afterwards.” We understand this statute to mean that a nonsuit may be taken by plaintiff at any time before the jury retire to consider the verdict, or before the issues of fact are submitted to the court for determination. An involuntary nonsuit is one that is taken by reason of some adverse ruling of the court which prevents a recovery by plaintiff, and when a demurrer to the testimony is sustained the plaintiff cannot usually know what the action of the court will be until the instruction or demurrer, as the case may be, is passed on, and, hence, would.have no occasion to take a nonsuit until that time, and the fact that nonsuit is not taken immediately, so it is taken before the jury retire should make no difference. [Templeton v. Wolf, 19 Mo. 101; Lawrence v. Sheve, 26 Mo. 492; Lawyers Co-operative Publishing Co. v. Gordon, 173 Mo. 139, 73 S. W. 155.] But it may be said that if the demurrer to the testimony was properly sustained a nonsuit would be of no avail. The very purpose of taking a nonsuit is to put the plaintiff in a position to bring another ac [726] tion should he wish to do so, and it may be that upon another trial he will be able to furnish more proof. The action of the court, in refusing to permit plaintiff to take a nonsuit as to two defendants, was erroneous, and for that reason the judgment on the verdict in favor of defendants, William, Sr., and William, Jr., will be reversed and the cause remanded. Defendant, Emil Suedmeyer, against whom judgment was rendered for $500, assigns as error the giving and refusing instructions and admission of incompetent testimony. The instructions given were well enough, except one as to the measure of damages. This instruction is as follows: “The jury is further instructed if your verdict is in favor of the plaintiff, then in assessing his damages you should take into consideration: “(1). The nature, character and extent of such injuries, if any. “(2). The pain of body and mind, if any, which he has suffered from said injuries. “(3). The impairment of body and mind, if any, which plaintiff is reasonably certain to suffer in the future therefrom. “(4). The amount and value of time, if any, lost by plaintiff in consequence of said injuries. “(5). The impairment, if any, of his future earning capacity caused by such injuries. “(6). The money expended for nursing, medical attendance and medicine, if any, by plaintiff on.account of said injuries.” This instruction was technically correct, except that sections 4, 5 and 6 should have limited the amounts to such sums as were reasonable. [Davidson v. Traction Co., 211 Mo. 320, 109 So. 583; Stoetzle v. Sweringen, 96 Mo. App. 592, 70 S. W. 911.] This instruction was erroneous for the further reason that there was no evidence upon which to base it as to sections 4, 5 and 6. To warrant a recovery for these items the proof [727] must show their value, cases cited, supra; [Moellman v. Lumber Co., 114 S. W. 1023; Heidbrinck v. United Railways Co., 113 S. W. 223; Slaughter v. Metropolitan Street Ry. Co., 116 Mo. 269, 23 S. W. 760.] The evidence as to the connection of plaintiff and Fitzgerald with the labor organization, and their authority to represent them should have been excluded. What was said and done as a part of the alleged difficulty, or what took place on the premises immediately preceding the difficulty was properly admitted by reason of its bearing upon the cause of the trouble, but all other testimony in relation to the labor union or the parties connected therewith, should have been excluded. For the errors noted the judgment against Emi] Suedmeyer will be reversed and the cause remanded. All concur.