Hays v. Hogan

• Decision Date: 22 December 1917
• Docket Number: No. 18573.,18573.
• Citation: 200 S.W. 286,273 Mo. 1
• Parties: HAYS v. HOGAN et al.
• Court: Missouri Supreme Court

200 S.W. 286

273 Mo. 1

HAYS v. HOGAN et al.

No. 18573.

Supreme Court of Missouri, Division No. 1.

December 22, 1917.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by Bertie A. Hays against R. S. Hogan and J. E. Hogan. Judgment for plaintiff. From an order granting a new trial, plaintiff appealed. The Springfield Court of Appeals reversed the order. Certified to this court. The order of the trial court is reversed as to one defendant, and affirmed as to the other.

The plaintiff brought this suit in the circuit court of Howell county against the defendants to recover $10,000 damages for the death of her husband, through the alleged negligence of the latter in so running and operating an automobile as to frighten the team of mules hitched to the wagon in which he was riding, and thereby causing it to run away and overturn the wagon, and in so doing fell upon and crushed and killed him. The verdict and judgment were for the plaintiff, and on motion a new trial was ordered, from which order the plaintiff duly appealed the cause to the Springfield Court of Appeals, which reversed the judgment ordering the new trial and remanded the cause, with directions to the circuit court to reinstate the verdict and judgment as originally entered therein. On motion for a rehearing one of the judges of the Court of Appeals dissented from the former opinion and certified the cause here because, as stated, it was in conflict with certain decisions of this court. The facts of the case are few and largely undisputed. The facts, as disclosed by the record, are these:

The plaintiff and the deceased were husband and wife; that on May 27, 1912, he was killed by means of a farm wagon, in which he was riding, turning over and upon him, and crushing him to death, caused by the team of mules hitched thereto becoming frightened at the automobile owned by defendant, R. S. Hogan, and driven by his son, J. E. Hogan, the other defendant. The occurrence took place on a public highway in Howell county, Mo. R. S. Hogan owned the car, and had done so for a year or more prior to the date of the injury; that he purchased it for the use of himself and family; that while the son J. E. Hogan had, with the permission of his father, driven the car in the performance of his duties to the latter, and for the pleasure of his mother and other members of the family, yet he was instructed by the father, R. S. Hogan, to never take the car out or drive it for his own purposes, without his permission or that of his mother. Upon this occasion the son was driving the car for his own purposes without the authority of his father or mother; that the son, J. E. Hogan, was a member of his father's family; that the father kept no hired chauffeur; that the machine had been bought and maintained for the use of the family as a pleasure vehicle; and that it was driven and used prior to the accident by the son, J. E. Hogan, and two other brothers of defendant J. E. Hogan. The father himself testified in a deposition which was offered by plaintiff as a part of her case without objection:

"Well, we use it just as a family vehicle, as a pleasure car, and for such use as the family might desire; just a family vehicle."

Both defendants testified that the son lived at the home of his father as a member of the family, paid no board whatever, and was employed in the bank in which the defendant father was president. It appeared from the depositions of the defendants introduced by the plaintiff that the son had used the machine from time to time for a period of more than a year, and that the father granted him the use of it whenever he asked for it. The testimony of a number of witnesses was to the effect that the defendant's son had been seen by them driving this automobile on various occasions prior to the time of the accident, both in the daytime and in the evening, sometimes with other members of the Hogan family in the machine as passengers, and at other times with only himself and his wife or other friends riding with him. The testimony further disclosed that the machine was kept in a garage at the father's home, and that defendant J. E. Hogan learned to drive from the use of this very machine in question.

The plaintiff introduced the depositions of R. S. and J. E. Hogan in presenting her case in chief. By these depositions it is shown that R. S. Hogan did not permit his son Jack to use the automobile at pleasure; that none of his sons were at liberty to use the machine at pleasure; and in answer to the question, "Was he permitted to use the machine for his own pleasure and that of his friends?" the answer was, "Not without permission." From this deposition it further shows that defendant R. S. Hogan did not know of the son ever taking the automobile without asking either him or his mother, and that he never knew of his taking the machine out and using it for himself and friends, outside of the family. The father was not at home on the day of the accident, but was in another part of the state. There was evidence tending to prove that the automobile was being carelessly and negligently driven at the time of the accident, and that was the cause of the team becoming frightened and running away, which resulted in the injury, as before stated. There was also evidence tending to show the contrary. Since, however, the jury has passed upon that question, no useful purpose would be served by detailing it here.

Wilfley, McIntyre & Nardin, of St. Louis, and O. L. Haydon, of Westplains, for appellant. Green & Green, of Westplains, W. J. Orr, of Springfield, J. D. Brooks, of Alton, and Hamlin & Seawell and Lewis Luster, all of Springfield, for respondents.

WOODSON, J. (after stating the facts as above).

I. This case is properly here, not only on account of the fact that the Court of Appeals certified it here under the mandate of the Constitution, but also because certain constitutional questions are involved, which will be presently considered. For the reasons stated, we will pay no further attention to the question of the jurisdiction of this court over this case.

II. The large question presented by this record for determination is stated by counsel for appellant in this language:

"Where one owns and maintains an automobile for the use and pleasure of himself and family, and an injury is inflicted through the negligence of the person in charge of the automobile while using the machine for one of the purposes for which it is kept, the owner is liable. And this is true whether the person driving the machine at the time is a member of the family or a hired chauffeur."

In support of this proposition we are cited to the following authorities: Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631; Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224; McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775; Campbell v. Arnold, 219 Mass. 160, 106 N. E. 599; Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Ploetz v. Holt (1913) 124 Minn. 169, 144 N. W. 745; Guignon v. Campbell, 80 Wash. 543, 141 Pac. 1031; Switzer v. Sherwood, 80 Wash. 19, 141 Pac. 181, Ann. Cas. 1917A, 216; Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59; Allen v. Bland (Tex. Civ. App. 1914) 168 S. W. 35; Hazzard v. Carstairs, 244 Pa. 122, 90 Atl. 556; Moon v. Matthews, 227 Pa. 488, 76 Atl. 219, 29 L. R. A. (N. S.) 856, 136 Am. St. Rep. 902; Cowell v. Saperston, 149 App. Div. 373, 134 N. Y. Supp. 284, also 208 N. Y. 619, 102 N. E. 1100; Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487; Winn v. Haliday (1915) 109 Miss. 691, 69 South. 685; McHarg v. Adt (1914) 163 App. Div. 782, 149 N. Y. Supp. 244; Carrier v. Donovan, 88 Conn. 37, 89 Atl. 894; Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. (N. S.) 332; Lashbrook v. Patten, 1 Duv. (Ky.) 317; Winfrey v. Lazarus, 148 Mo. App. 388, 128 S. W. 276; Daily v. Maxwell, 152 Mo. App. loc. cit. 422, 133 S. W. 351; Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527; Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125.

Preliminary to the discussion of this question, it may not be improper to state that the trial court granted the new trial because under the record it was of the opinion the defendant R. S. Hogan was not liable, and that the verdict of the jury was so indefinite and uncertain a proper judgment could not be rendered thereon; in that connection the court also stated that it did not sustain the motion for a new trial because the verdict was not supported by the evidence or was against the weight of the evidence, nor on the ground of passion or prejudice of the jury against the defendants. Counsel for respondents contend that this court has no authority to consider the reasons assigned by the trial court for granting the new trial, because those reasons were not entered of record as required by section 2023, R. S. Mo. 1909, but were preserved, if it all, in the bill of exceptions.

This court has repeatedly held that where a statute such as this requires a matter to be spread of record, it must be done and cannot be preserved in a bill of exceptions, and vice versa, if required to be saved in the bill of exceptions it cannot be preserved by the record proper. Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440; Taylor v. Scherpe et al., 47 Mo. App. 257; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542. Notwithstanding this insistence which is well founded, still we may consider the same as throwing light upon the view the circuit court took of the case during the progress of the trial, and the view he had of it when passing on the motion for a new trial. This carries us back to the large proposition before quoted. By reading it in the light of the remarks made by the trial court in granting the new...