Gibson v. Ducker

170 Mo. App. 135 | Mo. Ct. App. | 1913

OPINION.

FARRINGTON, J.

(after stating tbe facts).— Tbe appellate court will not set aside an order granting a new trial because tbe trial court gave an erroneous reason for granting it, provided a correct reason is pointed out by tbe party seeking a new trial which appears from tbe record to be a good and sufficient reason for sustaining tbe motion. It is also true that if the trial court grants a new trial on tbe ground that tbe verdict is against tbe weight of tbe evidence, that being a function peculiar to tbe trial court, tbe appellate court will not interfere with the order, unless tbe discretion of tbe trial judge has manifestly been abused. Tbe decisions of this State, cited by respondents, are clearly in favor of this proposition. Where there is evidence to sustain a verdict and tbe trial court has not set tbe verdict aside on tbe ground that it is against tbe weight of tbe evidence, tbe appellate court will not interfere with tbe action of tbe trial court, because, in cases at law, tbe appellate courts will not set aside orders of tbe trial court granting new trials, nor will they grant new trials where tbe motion for a new trial has been overruled when in order to do so tbe appellate court must weigh tbe evidence.

In this case, we must first determine -whether the trial court sustained the motion on the ground that, having weighed the evidence, the verdict was against the weight thereof. "We think the reasons set forth by the trial court clearly indicate that the new trial was granted to the Duckers because there was no evidence on which a verdict could stand, and not because there was some testimony but not sufficient, according to the scales of the trial judge, to justify the verdict. It is true, the trial judge in his order used the word “insufficient,” and this, the respondents say, indicates a deliberation on the weight of the evidence. However, in the same sentence in which this word is used, the trial judge sustains the motion on the ground that the demurrer offered should have been sustained, and this is a direct declaration on the part of the trial court that there was no evidence to weigh; and, following also in the same sentence, and indicating his reason, he sets the verdict aside as to Lambert because the verdict is an entirety and not for the reason that there was no evidence to support it. If we are to hold that the trial judge meant by saying that there was insufficient testimony to support the verdict that it was against the weight of the evidence, we convict him by saying in one breath that there is evidence, but of little weight, and in the next breath that there is no evidence; if, on the other hand, we hold that by the use of the word “insufficient,” followed by the similar statement he meant there was no evidence, his reason for setting it aside is consistent. We conclude, as did the Supreme Court in the case of Crawford v. Kansas City Stock Yards Co., 215 Md. 394, 402, 114 S. W. 1057, that the trial court set the verdict aside because there was no evidence to connect the Duckers with the arrest.

The case of Foley v. Harrison, 233 Mo. 460, 507, 136 S. W. 354, relied upon by respondents, is in fact an authority in favor of the contention of the appellant. The court in that case granted a new trial merely “for the reason that the plaintiff is not entitled to recover.” The Supreme Court held that there was no recital in the order sustaining the motion other than the one above quoted, and that the Supreme Court could not say from this that the trial court did not set aside the verdict as being against the weight of the evidence. In the case before us, the trial court did give as a reason that the demurrer to the evidence should have been sustained as to the Duckers, and that the motion for a new trial was not sustained as to Lambert for the reason that there was no evidence to support the verdict as to him. A careful reading of the reasons given by the trial judge can lead to no other conclusion than that he sustained the motion because he considered there was no evidence to support the verdict, and we will therefore now consider the second point to ascertain whether or not the trial court was justified in sustaining the motion on that ground; and if we find that there was any evidence from which an inference could reasonably be drawn that the Duckers were connected with and responsible for the unlawful arrest and detention, the verdict of the jury must stand and we must hold that it should not have been set aside on the ground that there was no evidence to support it.

It is contended by the respondents that although W. S. Ducker procured the services of the policeman, Lambert, to collect the fifty cents, they did not employ Lambert or authorize him to make the arrest or to detain the appellant* and both Lambert and "W. S. Ducker testified that Lambert was not employed or authorized by W. S. Ducker to take the appellant into custody; and respondents contend that because the appellant failed to show any express order or authority given by them to Lambert to make the arrest, the officer in making the arrest acted beyond the scope of the authority which the Duckers gave him, and that for Ms wrongful act they, the Duckers, could not be held responsible.

On tMs question, the respondents rely upon the case of Milton v. Railroad, 193 Mo. 46, 91 S. W. 949, in which the majority of the Supreme Court held that a detective agency employed for the purpose of investigating a crime and reporting back to the railroad company was not given authority and it was not witMn the scope of their employment to make an arrest of any suspects, and that where an arrest was made under such authority the railroad company would not be held responsible; and in that case, the rule is approved that if one is employed to collect a debt, it is not witMn the scope of his authority to arrest the debtor. It will be observed that the court in that case said it was very doubtful from the record whether the suspect was arrested at the instance of the detective agency or the legally constituted authorities of Kansas City. However, the facts of the case before us are entirely different from the facts in that case, because there was no evidence in that case that the railroad company knew or had. any notice whatever that the detective agency was about to cause the arrest nor that the railroad company ratified the action of its agent after it ascertained the facts. In the case before us, it will be noted that the plaintiff testified that before W. S. Ducker left the depot, after having pointed out the plaintiff to the officer, the officer was talking to-him (the plaintiff) about arrest and was telling him that he could make an arrest under the circumstances; and although it appears that plaintiff commenced to talk to Ducker in the presence of the officer, Ducker told plaintiff he had given him an opportunity to pay, and that he must now settle with the officer. From tMs the jury could well infer that Ducker was approving and giving his assent to the threatened arrest. Moreover, plaintiff says he was compelled to go with Ms grips back to the hotel and that when he reached the hotel office in company with the policeman, he called on bystanders to witness the fact that he was being made to pay what he did not owe and stated that he had been arrested by the officer. Ducker at that' time did not disapprove of the action of the policeman, bnt spoke up and said, according to plaintiff’s evidence, that he was not arrested bnt was detained, and the evidence shows that the policeman then made a similar remark. So that even though no such authority was given as the officer saw fit to exercise, and even if Ducker could not have surmised that the officer would arrest the plaintiff when he (Ducker) left the depot, he ratified such action when the officer brought the plaintiff back to the hotel and he accepted the fruits of the agent’s action. He had an opportunity to disavow the act of the officer when the knowledge was brought home to him that the plaintiff had been brought back under arrest to pay this sum; this he did not do, but instead, accepted the fifty cents and closed the incident by writing a receipt. There is also evidence of some weight, from which the jury had a right to infer that Ducker was connected with the arrest from the remark made by Ducker on the following day to Looney, namely, “that it was not his.custom to treat people in this manner, but that he had sent the policeman down after Mr. Hibson just to show him he could collect that extra fifty cents. ’ ’

The Supreme Court in the case of Hall v. Railroad, 219 Mo. 553, 586, 118 S. W. 56, in discussing the scope of an agent’s authority cites the case of Milton v. Eailroad, supra, as an authority. The question in the Hall ease concerned the authority of a brakeman in directing the plaintiff to perform some work in connection with the handling of some cars, and it was held that he had no such authority from his employment; but the court said: “A license could only be granted by some authorized act of the defendant, or by asquiescence of defendant for a length of time.” So in the case before ns, Ducker at least acquiesced in the arrest or unlawful detention for a sufficient length of time to get the fifty cents, the full accomplishment of his purpose in procuring the services of the policeman, which, we think, clearly distinguishes this case from that of Milton v. Railroad, supra. A jury might well infer from the plaintiff’s evidence as to the transaction, from the fact that Ducker went to a policeman and stood by, mute, hearing the policeman talk about arresting the plaintiff, and later accepting the benefit of the agent’s act after he heard the plaintiff declare that he had been arrested and brought back to the hotel to pay what he did not owe, and from the conversation with Looney — that he had sent the policeman down after Mr. Gibson just to show him he could collect that extra fifty cents — that the acts of the policeman, if not performed under an express authority to arrest or detain the plaintiff, were at least implied, or ratified. It is the established law of this State that the master is civilly liable for the wrongful acts of his servants, whether of omission or commission, when done in the course of their employment, even though the master did not authorize or know of such acts. [Garretzen v. Duenckel, 50 Mo. 104, 107; Whitehead v. Railroad, 99 Mo. l. c. 270, 11 S. W. 751; Chicago Herald Co. v. Bryan, 195 Mo. l. c. 588, 589, 92 S. W. 902; Barree v. Cape Girardeau, 197 Mo. l. c. 391, 392, 95 S. W. 330; Wahl v. Transit Co., 203 Mo. l. c. 272, 101 S. W. 1.]

We must hold that this record does disclose some evidence from which the jury could infer that the plaintiff was arrested and compelled to go back to the hotel and that the Duckers were sufficiently connected with the act of the officer to charge them with liability. The jury having passed on this evidence and found for the plaintiff, their verdict must stand as a verity and be controlling unless the trial court saw fit in the exercise of a sound discretion to set it aside as against the weight of the evidence. The court had no right to set it aside for the reason assigned in the order, and if that tribunal did not set it aside as against the weight of the evidence, this court cannot do so. No other reasons have been set forth by the respondents to justify the order of the trial court and we must therefore hold that the court erred in sustaining the motion for a new trial. The judgment is reversed and the cause remanded with directions to the circuit court to set aside its order sustaining the motion for a new trial and enter judgment in accordance with the verdict.

All concur.