*1 Ap Ruehling Hugo Pickwick-Greyhound Lines, Incorporated, v. pellant. Pickwick-Greyhound Hugo Appellant, Incor Lines, Ruehling, (2d) 602. Melville Dahncke. porated, One, July Division Incorporated. Chapmam Lines, D. Wilton *2 Euehling. Hugo Hannigan L. Aronson for Gallant <& Robert. respondent. L. Aronson Hannigan Robert & Gallant *3 for Dahncke. Chapman D. Wilton Melville injured he
FERGUSON, C. Plaintiff was when automobile driving operated corporate de- bus, by and a owned and Pickwick-Greyhound in Lines and fendant defendant Highway State or near Dahncke, Melville collided on Missouri at highway Highway Plain- intersection of that and State No. 25. brought damages injuries for the tiff this action so sustained. Pickwick-Greyhound alleges Lines petition the defendant operating Missouri corporation owning and motorbusses over is a defendant “was at times Highway State and that Dahncke all agent defendant, Pickwiek-Grey- chauffeur mentioned the alleged Lines.” caused It then collision was hound negligent manner, specified respects, several Dahncke predicating drove bus defendant, wholly solely upon rule
Lines, corporate or damages respondeat superior. Plaintiff in the sum asked $40,000. general fol- joint answer, filed a a denial Defendants any” if by allegations injuries, effect “whatever to the lowed directly plaintiff received “were due to were contributed negligence and in the manner. stated. plaintiff’s own carelessness” Upon denial. a trial replication Plaintiff’s jury follow- City of St. Louis the Court of the returned Circuit cause, find the “'We, the above entitled ing verdict: against defendant in favor of the joined herein issues plain- Inc., corporation, and we assess Pickwick-Greyhound Lines, dollars) (seventy-five $7500 hundred damages at the sum of tiff’s Dahncke.” The in favor of defendant Melvin we further find *4 Pickwick-Greyhound Lines for new trial was over- of the a motion Dahncke motion new as to defendant plaintiff’s as was ruled conformity with from which in the verdict judgment entered and appealed. corporation and the plaintiff both aggrieved considering himself any party to the action While separate cross-appeals appeals judgment the may appeal from separate in received and treated* as cases the same are in the case not unity throughout ap its the but “the case retains court appellate only appellate one case in court which “properly and that peal” is Telephone Co., 331 Bell jurisdiction.” v. Southwestern has [Walsh (2d) 839; Co., v. Southwestern T. & T. 52 W. Morton Mo. 831; Sandusky Sandusky, Mo. 360, 217 S. W. 280 Mo. separately an appellant perfected has As each 390.] (Pickwick-Grey separately here has docketed and each been appeal 32960) plaintiff’s appeal as No. appeal as No. and hound Lines’ foregoing proceed a consideration of observation and to make the we cross-appeals amouni In of the the appeals as one case. view two the dispute give jurisdiction. is such as in cited this court cases [See supra.]
Pickwiek-Greyhound Corporation, submits appellant,' as that judgment the verdict in this case cannot stand under since the pleadings corporate the 'wholly if liability, any, defendant’s is de pendent upon a finding by jury alleged negligent acts that employee plaintiff’s injuries of its caused having and the servant jury been exonerated the verdict of the it can follows there liability part judgment be no oh of against the master and the it cannot therefore stand and be reversed. As pointed must we have against the action is not joint out the two'defendants'-as tort-feasors petition if employer but under the *is liable at all it is because respondeat superior, of “the rule of law which holds negligent the master responsible for the his servant act of committed is acting while scope the servant within the employ of his engaged ment in his master’s business.” Such is cáse. gravamen negligence employee The of is the of and no recovery jury employee can be had unless it found is that the negligent was therefore when the found in of favor the de employee, thereby negligent, fendant he was not it neces sarily followed part there could be no on the of em ployer. judgment The same situation as was ruled in Chicago, Ry. Co., McGinnis v. Rock Island and Pacific Mo. 347, 98 McGinnis,' S. W. 590. In that case of the de employee railway injured engaged company, fendant was loading while in handcar work alleged injury onto railroad car. It was that the negligent by the act of eaused one a fellow French, workman. Mc- brought damages against Ginnis an action for French and the rail way necessarily; company case, based in as the instant on the doc respondeat 'superior. trine of A returned, verdict was thereon, against entered in favor of French, defendant but the de $10,000. company company fendant the sum appealed Thé but “took further “by no action as to” defendant French way appeal or otherwise.” This court said: firmly “We are opinion right in cases where dependent to recover is solely upon respondeat superior doctrine of finding and there is a ’ through servant, negligence that the whose' the master attempted liable, negligent, to be held has'not been as was true case hand, there judgment against should be no the master. The verdict monstrosity. jury say this case is a guilty French was negligence, yet, breath, say in the same the company guilty *5 although negligence, nothing of further company was done the through than what did French,- it its servant. Such a verdict is '. . wrong, is inconsistent . it and unreasonable. French has been acquitted negligence. the Plaintiff takes no further by way action as to him ... appeal or otherwise. It follows judgment . the be and is that should reversed it ordered.” so [See, also, Michely Mississippi Valley Co., v. Structural 221 Mo. Steel 299 205, 830, Mfg. App. Stephens Co., S. W. v. D. M. Oberman and. (2d) 1078, 334 Mo. 70 S. 899, W. and cases there cited.] But, plaintiff says respondent, as and con complaint -sufficiently Corporation tention of the not specifically and forth in and set its motion for new trial there grounds cannot be on appeal. fore considered The its motion- for1 Piekwiek-Greyhound trial to corporation a new the directs which being sufficiently our attention inclusive that “the verdict as are: against law-;” evidence;” against is “the the and that verdict'is against law, is “the verdict and law under the the evidence refer, Appellant’s contention, presently evidence.” which we to shall effect, is, verdict, evidence, that under the pleadings and the without law and is warrant of in view thereof defendant contends grounds that while are but noted sufficient without so ruling sufficiency as entering or upon here discussion question, generally or the motion for new motion officeof a requirements invalidity thereof, in, and the think the defect or we judgment of, face of complained of arises on the proper properly here had no record and therefore can be reviewed Mfg. v. for a trial been filed. D. M. Oberman motion new [Stephens supra; Mfg. Co., 656, 325 Mo. Co., Dougherty v. Manhattan Rubber Badger (2d) Co., 29 Lead Zinc Mo. 126; W. Warren v. & S. 255 224 31 208; 675, Mo. W. 138, 164 W. Durst v. Townes, App. S. S. Drainage 224 28 S. (2d) 583; District, App. 467, Chilton v. Mo. Dietering (Mo. 27 W. (2d) 120; City App.), S. W. of St. Louis v. Dysart 689; 70 ex
(2d) 711; Crow, Mo. S. W. State rel. v. all Carroll, App. 110, petition, 74 S. W. The v. Mo. 468.] judgment subsequent pleadings, are included the verdict and the (Mo.), Co. Mississippi Valley Trust proper. the record [Capitain 774; 628; App. 159 W. v. Pickel, W. Mo. 177 S. Pickel App. petition Reber, Fenn v. 153 Mo. 627.] as therein stated and the verdict considered cause of action any inconsistent without war apparent the verdict is it judgment founded, valid can be rant :or basis in law and Pickwick-Greyhound Corporation stand, against the because thereon upon which” that that the found the verdict “shows facts favor; “namely its depend”-in “liability must defendant’s Mfg. employer negligent.” D. M. Oberman not [Stephens v. ease, Co., supra, said in the McGinnis the “verdict As supra.] monstrosity” permitted- . be to stand there is a cannot pre must be reversed error thereon but .entered fore appears plaintiff’s appeal, have upon sented occasioned requires rema'hded.’ the erroneous verdict' that the cause‘be *6 Plaintiff,-as appellant, cites as error tbe action of the trial eonrt,. plaintiff objected excepted, giving .jury form they of verdict which returned herein as one of they written forms of verdict which were authorized to return. In plaintiff correctly says this connection pleadings that under evidence this case “if either” of the defendants was liable “both liable.” were Both and defendants that, concede pleadings under this case the of the employer, corporate defendant, dependent re-, solely upon the spondeat superior and that there is basis, either in pleadings evidence, the verdict returned herein. The giving, by the court, form of Was, effect, to, and tantamount they instruction that were finding authorized to make such apparently so understood them and therefore misleading and prejudicial. is therefore reversed and the re cause Sturgis Hyde, manded. CC., concur. Ferguson, adopt-
PER foregoing C., is opinion CURIAMThe opinion judges ed as the All the court. concur. Company, Corpora Construction Kelso v. W. A. Ross
Charles Ross, Ross, Administrator Estate of A. tion, M. J. W. engaged business under the name of formerly in the who was Company, Appellants. W. A. Construction Ross (2d) 527. July One, 1935.*
Division February 8, 1935; Term, Opinion September filed at *NOTE: 1935; rehearing April transfer to Court motion to motion for overruled July 9, filed; May Term, en Banc motion overruled at