165 Mo. App. 320 | Mo. Ct. App. | 1912
This-is a suit for damages accrued to plaintiff as a result of the wrongful trespass and threatening conduct of defendant’s agent while acting within the scope of his authority. Plaintiff recovered and defendant prosecutes the appeal.
Defendant, incorporated, manufactures and sells gas to its patrons in the city of St. Louis, and plaintiff, a married lady, resided at 812 North Jefferson avenue, in the same city, at the time of the trespass complained of. Plaintiff was pregnant with child and confined to her bed, threatened with a miscarriage, when defendant’s agent, engaged in inspecting gas meters, came to the door of the flat occupied by her and demanded admission for the purpose of reading the gas meter. Plaintiff was not a consumer of gas, but it seems the family who occupied the apartment above her was and that the meter which the agent sought to read pertained to that household but was installed in the basement beneath the first floor apartment occupied by plaintiff. The bed occupied by plaintiff was in the front room and near the door, and
The case was here on a former appeal, and may be found reported under the title of Bouillon v. Laclede Gas Light Co., 148 Mo. App. 462, 129 S. W. 401, where a more extended statement of the facts appears. At the trial, plaintiff’s family physician testified for her as an expert, touching her condition and the probable results which might be entailed upon one in her condition by the violent and threatening conduct detailed with respect to defendant’s agent.
There is no complaint here touching any of the questions propounded to this witness by plaintiff’s counsel nor as to the answers given by him thereto, but of its own motion the court, over the objection and exception of defendant, asked the witness to state “What was the cause of the actual miscarriage that took place ? ” In answer to this question, the physician stated, that in his opinion, it was due to the shock produced by the various elements combined in the hypothetical question, which it is unnecessary to copy here. It is argued that this question propounded by the court as to “the cause” of the miscarriage and the answer thereto were improper for the reason that it invaded the province of the jury. We find it unnecessary to express an opinion touching this argument
The only assignment in the motion for a new trial relating to evidence introduced is the fourth, and that is as follows: ‘ ‘ The court erred in admitting improper and incompetent evidence offered on behalf of plaintiff.” The word “offered” employed in this assignment should be accorded its usual meaning, which implies an offer on the part of plaintiff, and suggests no thought of a complaint with respect to the action of the court on its own motion. The statute (Sec. 1841, R. S. 1909) prescribes that motions shall be accompanied by a written specification of the reasons upon which they are founded, and provides, too, that no reason not so specified shall be urged in support of such motion. No one can donbt that the office of the motion for a new trial is to direct the trial court’s attention to the errors complained of, for the purpose of review. Indeed, the most recent ruling of our Supreme Court, touching this question declares that the motion for a new trial must direct the attention of the trial court to the precise error of which complaint is made. It is said, too, in the same case that no reason not so specified shall be urged in snpport of the motion. [State v. Scott, 214 Mo. 257, 261, 113 S. W. 1069.] Obviously, the fourth ground of this motion — that is, the “court erred in admitting improper and incompetent testimony offered on behalf of plaintiff”' — is insufficient to direct the attention of the trial court to evidence elicited by it and not offered by plaintiff at all. But it is argued such is a technical view, and it may be; however, the statute above'referred to and the Supreme Court decision are authority for the proposition so stated and conclude the rule here.
For defendant, it is urged that the case of Collier v. Catherine Lead Co., 208 Mo. 246, 106 S. W. 971, declares a general assignment pertaining to the in
Plaintiff’s first instruction did not require the jury to find that defendant’s agent was acting withim the scope of his employment at the time of the trespass complained of, and it is argued the judgment should be reversed for this reason. There can be no doubt that the master may-not be -required to respond for the wrongful conduct of the servant except upon the rule respondeat superior, and this requires that
Defendant’s counsel asked Kavanaugh, its agent, when on the witness stand, “What attempt, if any, did you make to enter that room?” The question was objected to on the ground that the witness had already testified touching the matter. The objection was sustained and it is urged this was error. But we believe there was no error in sustaining the objection, for it is shown that the witness had pointedly stated theretofore that he “didn’t make any attempt to get into the room.”
We see no error in the refusal of the several instructions requested by defendant’ which the court declined to give. There is nothing whatever in the case suggesting that defendant’s agent had stepped aside from the business of his master and entered upon a