Mulanix v. Reeves

Citation112 S.W.2d 100,233 Mo.App. 143
PartiesPRESTON MULANIX, RESPONDENT, v. W. T. REEVES AND WILLIAM N. REEVES, BY HIS GUARDIAN AD LITEM, CHARLES E. MURRELL, JR., APPELLANTS
Decision Date15 November 1937
CourtCourt of Appeals of Kansas

Appeal from the Circuit Court of Adair County.--Hon. Emert C Hilbert, Judge.

REVERSED AS TO DEFENDANT W. T. REEVES, AFFIRMED AS TO DEFENDANT WILLIAM N. REEVES.

Judgment reversed as to defendant W. T. Reeves and affirmed as to defendant William N. Reeves.

Henderson & Deacy and Murrell & Murrell for appellants.

(1) The trial court should have given a peremptory instruction at the close of all of the evidence in the case directing the jury to find for the defendant. Curtis v. Harrison, 253 S.W. 474; Kilcoyne v. Metz, 258 S.W. 4; Bright v. Thacher, 202 Mo.App. 301; Kibble v. LaMar, 54 S.W.2d 427; Hays v. Hogan, 273 Mo. 1. Nor was mere proof of the ownership of the automobile sufficient to take the case to the jury on the question of agency. State ex rel. v. Bland et al., 64 S.W.2d 638; Hays v. Hogan, supra; Murphy v. Loeffler, 327 Mo. 1244 39 S.W.2d 550. (2) The trial court erred in giving plaintiff's principal instruction which undertakes to cover the whole case. The instruction, as given, requires no finding of any affirmative fact essential to a verdict for plaintiff or upon which negligence might be predicated. Annin v. Jackson, 100 S.W.2d 872; Allan v Missouri Pacific Railway Co., 294 S.W. 80; Lauff v. J. Kennard and Sons, 186 Mo.App. 123; Sander v. City, 51 S.W.2d 529; Powell v. St. Joseph Ry., etc., Co., 81 S.W.2d 957; State ex rel. Brancato v. Trimble et al., 18 S.W.2d 4; Harke v. Haase, 75 S.W.2d 1001; Killian v. Albert Wenslick Real Estate Co., 89 S.W.2d 716; Watts v. Moussette, 86 S.W.2d 487; Grimes v. Red Line Service, 85 S.W.2d 767; Lesser v. Ry. Co., 85 Mo.App. 326. (3) The trial court erred as to defendant, W. T. Reeves, in giving to the jury plaintiff's Instruction No. 2. (4) The court erred in giving to the jury plaintiff's Instruction No. 3 which instruction is defective in that it fails to hypothesize any facts in evidence necessary to be found to authorize a recovery. (5) The court erred as to each defendant in overruling their motion for a new trial.

Rieger & Rieger and E. M. Jayne for respondent.

(1) No error was committed in refusing W. T. Reeves' demurrer to the evidence. The automobile was shown to be his automobile and it was shown that the operator was driving it with his permission. This made a prima facie case of agency and the jury was not compelled to believe defendant's evidence, which was offered and tended to show that the driver was on his own mission, and was not an agent of the owner of the automobile. Edwards v. Rubin, 2 S.W.2d 205; McCarter v. Burgen, 6 S.W.2d 979. (2) The court did not err in giving to the jury respondent's principal instruction and for three definite reasons. (a) The case was a res ipsa loquitur case and the authorities cited by appellant expressly except res ipsa loquitur cases from the rule. Annin v. Jackson, 100 S.W.2d 872; Harke v. Haase, 75 S.W.2d 1001. (b) The petition was drawn charging general negligence and the proof was of general negligence. Respondent did not attempt to prove specific negligence. (c) But even if the case was not a res ipsa loquitur case, and even if respondent proved specific negligence appellants can not complain of the error for they joined in it by asking instructions on the same theory and submitting the issues from their standpoint on the question of general negligence. The error, being common to both parties, cannot avail the appellants now. Grimes v. Red Line Service, 85 S.W.2d 767.

OPINION

REYNOLDS, J.

This is an appeal by the defendants from a judgment for $ 1750 rendered against them in favor of the plaintiff in the Circuit Court of Adair County, Missouri, for damages for personal injuries caused by an automobile (of which the defendant W. T. Reeves was owner) being driven by his son, the defendant William N. Reeves, on December 11, 1936, colliding with a trailer upon which the plaintiff was riding, which at the time was being drawn by a railroad section gasoline motor car along the main track of the Wabash Railway Company across Jefferson Street in the city of Kirksville, Missouri.

The suit wherein such judgment was rendered was instituted by the plaintiff's filing his petition in such court on December 29, 1936.

The defendant William N. Reeves, at the time being a minor under the age of twenty-one years, the Honorable Chas. E. Murrell, Jr., was by the court appointed guardian ad litem for him; and such guardian ad litem filed a separate answer for such defendant denying each and every allegation in the plaintiff's petition.

The defendant W. T. Reeves also filed separate answer denying each and every allegation in the plaintiff's petition.

Upon a trial had at the February Term, 1937, of the court, before the Honorable Noah W. Simpson, special judge of the court, and a jury, a verdict was returned, finding the issues for the plaintiff against both the defendants and assessing his damages at $ 1750, upon which verdict a judgment was in due time rendered in the plaintiff's favor against both the defendants in the said sum of $ 1750, from which judgment both the defendants, after unsuccessful motions for a new trial, have appealed to this court.

The evidence tends to show that the Wabash Railway Company operated and maintained a main line of railroad and side tracks upon either side, running north and south through the city of Kirksville, Missouri, which intersected with and crossed Jefferson Street, a public street in said city running east and west across the city, at a point a block or so south of its depot and carhouse in said city and that on the morning of December 11, 1936, the plaintiff was riding on a low, flat-topped trailer car being drawn along the main line of the railroad in said city by a railway section gasoline motor car, which trailer car as it passed over Jefferson Street was run into by the automobile of the defendant W. T. Reeves, at the time being driven by his son (the defendant William N. Reeves) east along Jefferson Street, with such force as to tear the trailer car loose from the motor car and hurl it from the track, severely injuring the plaintiff.

The evidence shows that the plaintiff was, at the time of his injury, in the employ of the receivers of said company, on his way to engage in his work of repairing and maintaining the roadbed and tracks of said company; that the trailer and motor car were at the time being operated by the plaintiff's foreman, one Powell, who was also an employee of the receivers; and that the trailer and motor car were supplied or furnished by the receivers for transporting the plaintiff and other employees from place to place along the railway to pursue their work.

The defendant W. T. Reeves, the owner of the automobile, was at the time of the accident school physician of Kirksville and had been such for a period of about eleven years. He used such automobile in the practice of his profession and in the prosecution of his business. The automobile was also used by other members of his family, including the defendant William N. Reeves, in the prosecution of their own affairs and for their own pleasure, when desired or needed.

The evidence discloses that the defendant William N. Reeves on the date of the accident was attending school at the State Teachers College and had been enrolled in that school for a considerable length of time prior to the date of the collision; that he was paying at least a part of his expenses, including his tuition, out of the money which he himself earned; that the automobile, while owned by the defendant W. T. Reeves, was a family car and was used as such by the various members of his family at pleasure; that it had been used by the son at all times that he needed to do so; that, on the morning of December 11, 1936 (that being the date of the accident), the son was using the car for the purpose of going to visit one Dr. Beatty, who lived in the Rollins Apartment in Kirksville, by whom he was employed to give certain attentions before going to school; that he left the house of his father about seven o'clock A. M., driving the automobile in question; that, on the date of the accident, the son was eighteen years of age and was residing with his parents and it had been his custom over a period of a year and a half to attend to the duties for which he was employed early in the morning and to drive to Dr. Beatty's in the automobile; and that, on some occasions, he would proceed from there to school and, on others, he would return home. The evidence does not show that William N. Reeves was engaged in any business or mission on behalf of his father at the time of the accident or that his father had anything to do with the employment of his son by Dr. Beatty or that his father was a party to the arrangement or contract therefor or interested therein in any way. Dr. Beatty paid the son for his services and such funds as the son derived on such account were kept and retained by him. The evidence fails to disclose any connection between the defendant W. T. Reeves and Dr. Beatty as physician and patient or otherwise but shows to the contrary that there was none.

At the time of the collision between the defendants' automobile and the trailer upon which the plaintiff was riding, the plaintiff was traveling south, going to his work. He had boarded the trailer at the carhouse of the railway company about a block from its depot north of Jefferson Street around seven o'clock the morning of that date. Other employees engaged in like work with the plaintiff were also riding on this trailer going to their work. When the driver of...

To continue reading

Request your trial
2 cases
  • State ex rel. Massman v. Bland
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1946
    ......54, 262 S.W. 393;. Harpole v. Wunderlich, 230 Mo.App. 578, 93 S.W.2d. 1104; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897;. Mulanix v. Reeves, 233 Mo.App. 143, 112 S.W.2d 100;. Anderson v. Nagel, 214 Mo.App. 134, 259 S.W. 858;. Marshall v. United Rys. Co. of St. Louis, 184 ......
  • Sweat v. Brozman
    • United States
    • Court of Appeals of Kansas
    • December 2, 1946
    ...... Saunders v. Prue, 151 S.W.2d 478, 235 Mo.App. 1245; Kurz v. Greenlease Motor Car Co. (Mo. App.), 52 S.W.2d 498;. Mulanix v. Reeves, 112 S.W.2d 100, 233 Mo.App. 143;. Tourkakis et al. v. Bellman et al. (Mo. App.), 71. S.W.2d 1084; State ex rel. v. Bland, 64 S.W.2d ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT