(273 S.W.) some study, but are unable to agree to it. | acts and conduct of plaintiff's employer as We think the natural law of gravity, under casting liability upon defendant. It is true the related facts, especially considering that that the jury was required to find that the street ran or sloped to the east, would plaintiff's employer engaged defendant to probably cause the box to overbalance and furnish a truck and to haul boxes, and that fall to the east. The facts in this case are plaintiff was ordered by his employer to ride unlike the facts in Cadwell v. Wilson Stove on the truck to the depot and aid in unloadCo. (Mo. Sup.) 238 S. W. 415. ing, but that is about all the jury were required to find, except that the boards were rotten and loose, giving away when the box passed over the point, causing the box to fall and injure plaintiff. The instruction is insufficient, for it is neither based on the petition nor the proof. The instruction does not, by hypothesizing facts, require the jury We do not think the court errèd in refusing to direct a verdict for defendant, in view of the rule of law that, on motion for a directed verdict, the truth of plaintiff's evidence is admitted and the most reasonable and favorable inferences must be drawn from it in plaintiff's behalf. [8] III. Defendant complains of instruc- to find in any manner a duty on plaintiff's tion No. 2, reading: "The court instructs the jury that if you find and believe from the evidence that on or about December 22, 1921, plaintiff was employed by the Crystal Mirror Plate Company; that on said date his employer engaged the defendant to furnish a truck and to haul boxes of mirror plates from its plant to the railroad freight depot: that defendant furnished a truck to plaintiff's employer; that plaintiff was by his employer ordered to ride on defendant's truck to the depot (if you find it was defendant's truck), and to assist and aid in unloading the mirror plate. "The court further instructs you that it was the duty of defendant, if you find the foregoing to be facts, to exercise reasonable care in furnishing and providing a truck in reasonably safe condition, and in reasonably good repair, and if you further find and believe from the evidence that the defendant was negligent in failing to exercise reasonable care to furnish a truck in reasonably good condition and in reasonably good repair, but instead furnished a truck which was not in reasonably safe condition and not in reasonably good repair (if you so find), in that the end of the abutting short board mentioned in evidence was rotten and loose, if you so find; and if you further find and believe from the evidence that it was necessary to shove the box of mirror plate men-. tioned in evidence across said boards; that as the rear corner of the said box of mirror plate passed over the point where said boards abut, if you so find, the boards gave way, causing the corner of the box to fall, sink, and drop, if you so find, causing the box to get off balance, tilt and fall, if you so find, and to injure plaintiff, if you so find, and if you further find and believe from the evidence that this condition of the floor or bed of the truck, if you so find, was known to the defendant, or could by the exercise of reasonable care have been known to it, and that this condition, if you so find, caused plaintiff to be injured, if you so find. then you will return a verdict for the plaintiff." While a number of objections are urged to this instruction, and inasmuch as plaintiff will be given the opportunity to obviate the possibility of error at a succeeding trial, we notice one particular objection which we consider certainly well taken. The criticism relates to that portion of the instruction which calls to the attention of the jury the part to unload the box; it fails further to re quire the jury to find that he was unloading the box; that he sustained injuries while performing any work; that he was ever on the truck or pushing the box; that he rode on the truck and was unloading the box with the express or implied consent or without objection from the driver; that the driver was in charge of the truck and operating it; and that by prearrangement between his employer and defendant or through the apparent scope of authority of the driver and with his express or implied consent, it was contemplated that plaintiff, as servant of his employer, was to board the truck and unload or aid in unloading the box. Some of the criticisms here noted may overlap, but the requirements are generally essential. though the requirement that plaintiff's employer directed him to go upon the truck to unload the boxes is probably essential under the facts in this case to show the character of plaintiff's presence on the truck, nevertheless, as the instruction is now written, we agree that it improperly calls the attention of the jury to the acts and conduct of plaintiff's employer. Al [9] IV. Defendant's final contention charges error in giving an instruction, reading: "The court instructs the jury that if you find and believe from the evidence that the Crystal Mirror Plate Company engaged the defendant to furnish a truck and to haul boxes of mirror plate for it, then the court instructs you that it was the duty of the defendant to exercise reasonable care to furnish a truck in reasonably safe condition, and in reasonably safe state of repair, and that a failure so to do, if you so find, constitutes negligence." We cannot see the purpose of this instruction, for, without going as far as instruction 2, it is expressly covered by its terms. However, we think this instruction is erroneous, for it gave the jury a roving commission to find defendant negligent, without further finding that defendant actually furnished a truck, and without hypothesizing facts sufficient to show that plaintiff was rightfully on the truck. Then again, we think the instruction should require the jury 1. Pleading May 5, 1925.) 369(1)-Sustaining oral motion at close of plaintiff's case, requiring it to elect on which cause of action it would proceed, held not error. In action against constable and sureties on official bond, first count on theory that execution under which defendants levied on goods was void on face, and second count relying on oppressive action by defendant, based on valid execution, were inconsistent, and, after overruling demurrer on such ground, requiring plaintiff, on oral motion at close of evidence, to elect on which ground it would proceed was not error. Appellate court has nothing to do with weight of evidence, and, even though it believes weight thereof was in favor of appellant, it cannot disturb verdict, and judgment of trial court supported by evidence. 4. Appeal and error ~930(1)—On appeal defendants' evidence and all reasonable infer ences therefrom must be considered, where substantial evidence supports verdict. Where defendants prevailed at trial, securing verdict, which is attacked on appeal, defendants' evidence and all reasonable inferences therefrom must be considered, where substantial evidence supports verdict. 6. Appeal and error 171(1) Appellant adopting at trial theory that constable and sureties were liable because of excessive levy is bound thereby on appeal. In action against constable and sureties on official bond for damages from levy of execution, where plaintiff's instruction, given to jury at trial, stated that, if levy was excessive through honest mistake or judgment exercised in good faith by constable, no recovery could be had, he is confined to that theory on appeal. 7. Appeal and error 171(1)-Plaintiff, failing to submit in instructions theory of recovery cannot rely on such theory on appeal. In action against constable and sureties on official bond for damages growing out of levy of execution, where plaintiff's instructions concerning agreement between it and constable to hold goods levied on in storage did not submit right to recover because of alleged failure to return all goods levied on, after verdict for defendants, plaintiff on appeal cannot resort to theory of recovery different from that relied on at trial. Appeal from Circuit Court, Marion County; Chas. T. Hays, Judge. Action by the State, on the relation of the Athletic Tea Company, against Henry Cameron, Constable of Mason Township, Marion County, and others, sureties on his official bond. Judgment for defendants, and plaintiff appeals. Affirmed. W. T. Myers, of Hannibal, Glahn & Diemer, of Palmyra, and Gatewood & Lee, of St. Louis, for appellant. Lewis O'Connor and Rendlen & White, all of Hannibal, for respondents. DAUES, P. J. This is an action against the respondent Cameron, constable of Mason township, Marion county, Mo., and the sureties upon his official bond. The cause was tried to the court and jury, resulting in a verdict and judgment for defendants, from which plaintiff has appealed. It appears that a judgment was rendered in the justice's court in favor of one Courtney against relator, the Athletic Tea Company, the appellant in this cause. Execution was issued upon said judgment, and the constable levied upon certain properties of the tea company, which properties consisted of coffee, tea, spices, etc., which the tea company kept stored in a livery barn in the city (273 S.W.) of Hannibal. The levy was made by lock-in statu quo until the final determination of ing and nailing up the door to the room in the barn where the property was then stored. Thereafter the Hannibal court of common pleas, in a certiorari proceeding, set aside the judgment of the justice, and the property was restored by the constable to the tea company. The property was levied upon in June, 1921, and was released in October, 1921. The first count of the petition proceeded upon the theory that the execution under which the constable made the levy was void upon its face, and that the constable therefore held said goods without any authority, and that the action of the constable upon said void execution was a trespass against the rights of plaintiff and to plaintiff's dam age. The second count alleged that the proceedings were regular and the execution valid, but that the constable acted oppressively by taking goods of the value of $1,000 to satisfy a judgment and costs of $53.27; that the goods so levied upon were of a perishable nature, and that it therefore was the duty of the constable to give immediate notice of execution and sale and to return the execution within 30 days; that he failed to do so, and retained the goods for about 4 months; that he failed to preserve same to prevent them from deteriorating while in his control; that, after the judgment of the justice had been declared null and void in the certiorari proceeding in the common pleas court, the constable turned back only a part of the goods so levied upon; and that a large portion of said goods had deteriorated by reason of a lack of care thereof. The total damage alleged in the second count is $979.99. The respondents demurred to the petition on the ground that the counts were inconsistent. The court overruled this demurrer, whereupon respondents answered that the justice had full and complete jurisdiction of the subject-matter, and that the execution was duly and regularly issued, and was regular and valid on its face. The answer further alleges that the constable under said execution levied upon 150 packages of tea and coffee, together with certain other articles of similar character, and that the constable exercised his best judgment in good faith in making said levy; that he took into possession under the execution only such property as he deemed necessary to satisfy the judgment and costs. It is then alleged that on or about June 18, 1921, when appellant filed its petition by certiorari to have the judgment of the justice set aside, the respondent constable entered into an agreement with the attorney and agent for the relator tea company that the property should remain in the room where the constable had locked up same, and that all matters should remain such certiorari proceedings in the common pleas court, and that immediately upon the determination of the certiorari proceedings the constable turned back and delivered to the tea company all the property levied upon in pursuance of such understanding between the constable and the tea company's agent, and that the appellant therefore is estopped from claiming any damage done to said merchandise while same was in the possession of respondent Cameron as constable. The answer further denies that the property held under the execution was damaged or in any wise injured while in the possession of the constable, but that all such property was returned in good merchantable condition. The cause proceeded, and at the close of plaintiff's case the defendant again orally moved the court to require an election by relator on which count it would stand. The court sustained such motion to elect, whereupon appellant elected to proceed upon the second count, which was the cause of action on the theory that the execution was valid as above set out. The proof of the defendants was to the effect that the constable levied upon only such amount of goods as he thought was enough to pay the judgment, costs, and expenses. The constable himself testified in this regard as follows: "I levied upon what I thought was enough to pay the $50 and expenses. It did not look like to me there was more than $40 or $50 worth of goods in the building. I knew nothing about the value of the tea, coffee, or dishes." The constable further testified that he securely locked the place where the goods were stored, and kept same at said place until the certiorari proceedings were determined, that, immediately upon the certiorari proceedings being filed, he met the attorney and agent for the relator, the tea company, and that it was agreed between said attorney and the constable that nothing should be done in regard to the execution or proceedings, and that the property should remain just as it was then stored until the court of record passed upon the matter under such certiorari proceedings, and that he kept such property in such condition until it was released again to the tea company. There is a sharp conflict in the evidence between the parties as to the value of the commodities kept in the storeroom under the execution, and the constable's testimony, as brought into the evidence by deposition, is by no means as convincing as his testimony given at the trial. This is also true with reference to the testimony of the constable with reference to the agreement made with the agent of the tea company. However, there is substantial evidence on the part of defendants that the constable in good faith levied upon only so much property as he deemed would cover the judgment and costs, and also that he had a distinct agreement with the tea company that the goods should remain in the barn until the certiorari proceedings were determined. It is defendant's testimony also that substantially all of the goods were returned to the tea company; some of the coffee and tea and other merchandise having been destroyed by mice and vermin, and some of such merchandise having deteriorated by reason of heat and the time of storage. [1] It is appellant's first insistence that the court erred in sustaining the oral motion to elect, and to support such contention the case of Wamsganz v. Blanke-Wenneker Candy Co. (Mo. App.) 216 S. W. 1025, is strongly relied upon. That case is one wherein an oral motion to elect was overruled, and it was decided that the trial court did not commit error in disallowing the motion because same was not timely made. However, in that case the petition was not demurred to. The defendant there at the close of plaintiff's case for the first time moved that the plaintiff be required to elect. No such motion having been filed before that time, and no demurrer having been offered to the petition, the court held that the movant was in no position to complain because such motion was untimely made, and that the matter was waived, even though the election might properly have been required if timely raised. It does not appear by any means that the court would have held it error had the lower court required an election at the close of plaintiff's case. [2] In the instant case a demurrer was offered charging that the counts were inconsistent. Being there unsuccessful, the defendants again, at the close of plaintiff's case, orally called the matter to the court's attention, and we think no error lies on the ground that such motion made at the close of plaintiff's case was oral. The law, of course, is well established that the plaintiff cannot proceed upon inconsistent counts, but he must elect upon which repugnant count he will proceed. Snyder v. Toler, 179 Mo. App. 376, loc. cit. 380, 166 S. W. 1059. And. indeed, there are authorities to sustain the position that, where inconsistent counts are joined in the same petition, plaintiff may be compelled at the close of his evidence to elect upon which of his counts he will take the verdict. Roberts v. Railroad, 43 Mo. App. 287, loc. cit. 289; Southworth Co. v. Lamb, 82 Mo. 242, loc. cit. 248; Behen v. Transit Co., 186 Mo. 430, 85 S. W. 346. The counts were clearly inconsistent, and the court's action in requiring an election was not error. [3] The main argument of appellant's brief really amounts to a complaint that the weight of the evidence is strongly in favor of evidence on the part of the plaintiff challenging the testimony of the defendants as to the material issue offered under the second count. However, it hardly requires the citation of authorities on the proposition that this court, an appellate tribunal, has nothing to do with the weight of the evidence, and, even though we may believe that the weight of the evidence was in favor of the appellant, we cannot disturb the verdict and judgment of the trial court, if defendants' evidence supports the verdict. [4, 5] The defendant prevailed at the trial, securing a verdict before the triers of the fact, and the defendant's evidence and allreasonable inferences therefrom must be considered where there is substantial evidence to support the verdict. Whiteaker v. Railroad, 252 Mo. 438, loc. cit. 452, 160 S. W. 1009; City of St. Louis v. Railroad, 248 Mo. 10, 154 S. W. 55. And accordingly, since we find substantial evidence to support the verdict, we must leave that question where we find it. It is conceded in this case that the justice of the peace had jurisdiction of the subject-matter, and there are authorities to the effect that, where a justice has jurisdiction of the subject-matter, the constable, a ministerial officer, is not bound to examine into the validity of the judgment, the proceedings, or the process. It is sufficient for his protection if the execution was regular upon its face and the court from which it was issued had jurisdiction of the subjectmatter. This is the case, even though the officer may have been notified, among other things, of defects in the proceedings. Nest v. Haines, 189 Mo. App. 433, loc. cit. 436, 176 S. W. 513. Owls' [6] Appellant's instruction, however, submitted to the jury the question of excessive levy, and by the instruction so offered the jury were told that, if they find that said levy so made was excessive through honest mistake or judgment exercised in good faith by the constable, no recovery could be had. This is the theory adopted by appellant, and appellant is confined to that theory. White v. Pierce (Mo. App.) 213 S. W. 512; O'Hara v. Gas Light Co., 244 Mo. 395, 148 S. W. 884. [7] The question of agreement between appellant and the constable to hold the goods in storage at the barn was submitted to the jury on instructions by appellant and on a counter instruction by defendants. We observe from the instructions that appellant did not submit in any instruction plaintiff's theory for recovery on account of alleged failure to return all of the goods so levied upon by the constable, and, under the instructions fairly submitting the issues, and under the evidence, the jury returned a verdict for the defendants. Appellant's instructions submitting these theories to the jury as the sole issue in the case, it cannot now (273 S.W.) We have examined the other points made, | 7. Evidence 14-Common knowledge that but do not find them availing under the pres ent state of the record. Judgment is affirmed. BECKER and NIPPER, JJ., concur. EVANS v. SOUTHERN WHEEL CO. (St. Louis Court of Appeals. Missouri. May Refusal to direct verdict for defendant for want of evidence that wheels, which petition alleged defendant negligently failed to prop, could have been propped while wheel lock was being made by plaintiff and another employee, held not error, where plaintiff abandoned such contention, which was not vital to his cause, in submitting latter to jury. 2. Master and servant 258 (7)-Allegation of employee's inexperience, with other allegations, held to furnish basis of recovery. Allegation of plaintiff's inexperience and ignorance, in connection with other allegations of petition that plaintiff was directed to work on wrong and dangerous side of wheel in making wheel lock with another employee, held to furnish basis of recovery for resulting injuries. 3. Master and servant 286(2)—Evidence of employee's inexperience held for jury. Evidence held to justify submission of case to jury as showing that employee was inexperienced in making wheel locks. 4. Master and servant 190(17)-Superior servant, directing inferior, not "fellow servant," but "vice principal." While dual capacity doctrine obtains in Missouri, superior servant, directing and exercising authority over inferior as to matters about which he was authorized to direct him, is not latter's "fellow servant," but "vice principal." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fellow Servant; Vice Principal.] 5. Master and servant 287 (8)-Evidence employees making wheel lock were not fellow servants held for jury. Evidence held to justify submission of case to jury as warranting inference that employees 6. Master and servant 103(1)-Duty to fur- experience is required to handle articles of great weight. It is common knowledge that experience is required to handle articles of great weight. 8. Master and servant 153 (2)-Inexperienced servant held not chargeable with knowledge miscalculation of distance or time would cause heavy wheel in hands of superior to fall. Inexperienced servant, placed in position toward which experienced superior servant had to tilt heavy wheel, so as to catch flange under that of wheel held by inferior servant in making wheel lock, held not chargeable with knowledge that miscalculation of distance or time would cause wheel to fall on him. 9. Trial 243-Instruction, in action for injuries while locking wheels, held not inconsistent. Instruction allowing recovery for injury to servant while locking wheels, if, because of ignorance and inexperience, he did not lean his wheel quickly enough, and, before he leaned it sufficiently, employee with whom he was working leaned other wheel against that of plaintiff, held not inconsistent. Appeal from St. Louis Circuit Court; Robert W. Hall, Judge. "Not to be officially published." ern Wheel Company. Judgment for plainAction by John Evans against the Southtiff, and defendant appeals. Affirmed. Holland, Rutledge & Lashly, of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent. DAVIS, C. This is an action for negligently causing injury to plaintiff while engaged in performing work known as locking wheels. The jury returned a verdict for $2,041.65 in favor of plaintiff, and from the judgment entered thereon defendant appealed. Plaintiff's evidence tends to show that at Spring avenue and Market street, in the city of St. Louis, defendant was operating a plant for the manufacture of metal wheels for railroad cars; that plaintiff was injured while in the employ of defendant on February 8, 1923; that a little over two weeks previous thereto plaintiff sought employment from defendant, asking General Foreman O'Connor for work, who inquired of plaintiff whether he knew anything about rolling wheels; that plaintiff answered, "No," and O'Connor said, "I will find something for you to do"; that O'Connor then took plaintiff to defendant's employee named Crook, who was a wheel roller, his duties consisting in rolling wheels, and to whom O'Connor gave plaintiff as a sandman to keep the tracks clean, swept, and in repair for the wheel rollers; that O'Connor told plaintiff For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |