Winfrey v. Lazarus, 148 Mo. App. 388

Winfrey v. Lazarus

148 Mo. App. 388 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

(after stating the facts).— The errors assigned by counsel for the appellant are, that the verdict is against the weight of the evidence and is not supported by any evidence; that the instructions given by the court at the instance of plaintiff, especially the first, were improper and that the instructions were inconsistent; that under the third instruction given at the instance of defendant, a verdict should have been returned in favor of the defendant, and that the amount of the finding in favor of plaintiff is excessive. Whether the verdict is against the weight of the evidence, is a matter for the determination of the trial judge and not of this court. Counsel contend that the verdict is not supported by any evidence. We have set out the substance of the evidence on the issue as to whether, at the time of the accident, the machine was being operated by one who, at the time, may be said *396to have been acting under the authorization of the defendant and within the scope of his employment. We do not think it can be said that there was no evidence whatever to sustain the verdict, so far as involves that issue. We think the evidence which we have set out clearly shows that the case was one for the jury and that its determination rests entirely upon the conclusions that the jury might properly draw from it, determinable by them also on the credit that they gave to the witnesses.

The principle underlying the determination of cases of this character is well set out by Judge Nortoni in the case of Shamp v. Lambert, 142 Mo. App. 567, 121 S. W. 770, where at page 772 of the last cited publication, it is said, in substance, that the employer is liable for all injuries to person or property caused by the negligence of his employee, if the act which results in the injury is done while the employee is acting within the scope of his employment in the employer’s service, though the act was not necessary to the performance of the employee’s duties and it was not expressly authorized by the employer or known to him. Judge Nortoni, citing many cases supporting this, quotes from Garretzen v. Duenckel, 50 Mo. 104, that “when the servant acts in the course of his employment, although outside of his instructions, the master will be held responsible for his acts,” referring also to Snyder v. Railroad, 60 Mo. 413, in which the foregoing excerpt from the Garretzen case is quoted approvingly. It seems very clear to us from the evidence in this case, that the chauffeur, Conley, was acting in the course of his employment by the defendant when he obeyed the direction of the defendant’s daughter to bring the machine down for her use. The defendant, by his own testimony, shows beyond room for dóubt that when he went on his journey he left this machine for the convenience and at the service of the members of his household. He said, in effect, he did not want to discharge Conley because good chauffeurs *397were not easily picked np. But lie did more than merely retain Conley in his employ, — he left him in charge of the machine, obviously intending it to be used. He says that they rarely got his sister-in-law to use it. “She seldom gets into an auto. It is hard to get her into it.” So there was no one left but his daughter who would be apt to use it. He surely contemplated that she should use it and that Conley would drive it when she did use it. She was the daughter of the defendant, and, for the time being, an inmate of his household, with all the privileges of a daughter in the home of her parents. When defendant was informed of her use of his machine, on his return from Europe, and of the fact of the accident having occurred, according to his own testimony, he made no objection or protest whatever, nor any suggestion that Conley should not have obeyed the demand of the daughter, or of lack of authority in his daughter to control the use of the machine. The facts before the jury unmistakably tended to prove that the chauffeur understood that he Avas at the direction of the daughter and when he received Avord from her to come down town with the machine for her, he, without any hesitation, obeyed. The testimony of the daughter even goes so far as to tend to show that she was so far mistress of the household that the servants in the house were under her control. She referred to them in this AAray, when asked who they were: “I had two girls there just about that time; one left and then the other one came.” With testimony of this character before them, the jury had a right to infer that the chauffeur, in bringing the machine down from the garage to the point to which he had been summoned by Mrs. Baker, vras acting in the course of his employment, and within the scope of his employment, although he had no specific instructions from his employer to do this particular act or to make this particular trip. The acts of the daughter, the Avhole trend of her testimony and that of her father, warranted the jury in *398finding that the daughter was a member of the household of the defendant; the testimony of the daughter and of the defendant tended to prove that this machine was subject to the control and for the use of the members of the household of the defendant, and that when the chauffeur obeyed any of them in the use of it he was aching Avithin the scope of his employment.

The learned counsel for the defendant cites authorities in support of his contention that the employer is liable only when the employee is acting within the scope of his employment. We not only do not dispute that, but recognize it as the law. When, however, he attempts to argue that this chauffeur was not acting within the' scope of his employment and for that relying particularly on the case of Clark v. Buckmobile Co., 107 N. Y. App. Div. 120, we do not agree with him nor do we think this authority meets the case at bar; it is not analogous, in its facts, to the case at bar.

The first instruction, of which we have given a sufficient synopsis to show its import, was correct and is not subject to the assignment of error levelled against it. Neither do we think that there was any inconsistency in the instructions, which we assume is meant to apply to defendant’s third instruction as contrasted with the first one given at the instance of plaintiff. We do not think instruction numbered three is inconsistent with number one, or of such a character as to lead to the conclusion that the jury by their verdict, entirely disregarded it. The jury are told by that instruction, in substance, that they are to find for the defendant unless they find that at the time of the use of the machine by the direction of the daughter, the daughter aauis a member of the household of the defendant. That very properly left it to the jury to determine whether the daughter was or was not a member of the household of the defendant. If the jury, on the evidence, found that she was such member, it cannot be said that their verdict was in disregard of this instruction. If the *399clause referred to, requiring the jury to pass on the question of whether the daughter was a member of the household, had been omitted from this third instruction and the instruction given with that omission, it would have been unmistakably and clearly error. Even as it is, without the aid of the instruction given at the instance of plaintiff, its tendency was to minimize in the minds of the jury the real point in issue, that is, the determination of whether the daughter was a member of the household of the defendant when she ordered the machine to be brought down for her service. It put that issue before the jury in the most extremely favorable light possible for the defendant. The defendant cannot complain of it as it was his own instruction and he surely has no ground to complain of it for failing to give him the benefit of his defense.

As to the proposition made by the learned counsel for the defendant, that there is no evidence to support the allegations of negligence on the part of the defendant’s employee and that the verdict is excessive, it is to be said that while it is true that there was contradictory evidence to that of plaintiff on the part of the defendant as to the rate of speed and as to the care and caution exercised respectively by the chauffeur and by the plaintiff and also conflicting evidence as to the extent of the injury and damage to the plaintiff, the jury were properly instructed on these matters and the weight to be given to this testimony was entirely within the province of the jury. We see no error to the prejudice of the defendant in the record .and do not consider the verdict so excessive as to warrant interference by us on that account. The judgment of the circuit court is affirmed.

All concur.