Stack v. General Baking Company
| Decision Date | 25 June 1920 |
| Citation | 223 S.W. 89,283 Mo. 396 |
| Parties | WILLIAM STACK v. GENERAL BAKING COMPANY and GEORGE H. KELLER, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.
Affirmed.
Watts Gentry & Lee and Jones, Hocker, Sullivan & Angert for appellants.
(1) The court erred in overruling the demurrers to the evidence offered at the close of plaintiff's case and again at the close of all the evidence in the case: (a) The physical facts, as testified to by plaintiff and his own witnesses and as admitted by counsel for plaintiff, show that the accident could not have happened as claimed by plaintiff. Where testimony by a plaintiff or his witnesses is entirely contrary to the physical facts and contrary to all human experience, such testimony should be disregarded and a demurrer to the evidence should be sustained. Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Huggart v. Railroad, 134 Mo. 679; Payne v. Railroad, 136 Mo. 579; Petty v. Railroad, 179 Mo. 666; Weltmer v. Bishop, 171 Mo. 116; Champagne v. Hornbey, 189 Mo. 726; Nugent v. Milling Co., 131 Mo. 241; Deane v. Transit Co., 192 Mo. 575; Lange v. Railroad, 151 Mo.App. 500. (b) The plaintiff himself was guilty of contributory negligence in driving at an excessive rate of speed and in violating an ordinance pleaded and proven by plaintiff himself, requiring all vehicles to keep as near the right-hand curb of the street as possible. (c) Plaintiff was further negligent in violating the statute requiring him to turn to the right, for he turned to the left. Lloyd v. Calhoun, 48 Wash. 438, 82 Wash. 35; Laws 1911, p. 327, sec. 8, subd. 3. (d) The plaintiff had no right whatever to be upon the street with his automobile under the circumstances revealed by his own evidence, because the statute prohibits any chauffeur driving an automobile for hire to operate such automobile upon any public highway in this State without complying with the sections of the statute found in the Act of 1911 (in force at the time of this accident), requiring every chauffeur to file an affidavit with the Secretary of State, pay a fee, procure a chauffeur's license and wear a badge issued by the Secretary of State. The plaintiff admitted that he had done none of these things, and that he was driving the car for hire; hence, he was a chauffeur within the meaning of the statute, and having no license, he had no rights upon the street. Under such circumstances the rule is the same as pertains to the rights of a trespasser. He is not entitled to recover damages for injury resulting from mere negligence, and one who injures him could not be held liable in the absence of malice, or at best, in the absence of evidence showing that after the trespasser's position of peril was discovered there was full opportunity to avoid injuring him. Laws 1911, sec. 11, subd. 4, p. 328. The principle is similar to that which precludes a foreign corporation from recovering in an action for goods sold in this State, or on account of other business transacted here when it had failed to comply with our statutes requiring foreign corporations to be licensed to do business in Missouri. States ex rel. Hays v. Robertson, 271 Mo. 475; Holden v. McGillicuddy, 215 Mass. 563; Dudley v. Northampton St. Ry. Co., 202 Mass. 443; Dean v. Boston Ry. Co., 217 Mass. 495. The rule applied to trespassers and bare licensees in this State is that no duty is owed them until their presence is known, and then the only duty is not to willfully or wantonly injure them. Kelly v. Benas, 217 Mo. 1; Frye v. Ry. Co., 200 Mo. 377. (2) The court erred in excluding all of the certified copies of the records of the Court of Criminal Correction of St. Louis, showing that James Carroll had been convicted of various offenses. Sec. 6383, R. S. 1909. Proof of identity of name makes a prima-facie case of identity of person, and the burden is then shifted to the opposite party to prove lack of identity. The mere fact that there may have been several persons named James Carroll in St. Louis does not alter the rule. It has been applied in cases of very common names, such as Lee Woods, Michael McGuire and John Smith. Flournoy v. Warden, 17 Mo. 435; Gitt v. Watson, 18 Mo. 274; State v. Forsha, 190 Mo. 296; State v. Blitz, 171 Mo. 530; State v. Woodward, 191 Mo. 617; State v. Sovern, 225 Mo. 591; State v. Woods, 274 Mo. 617; State v. McGuire, 87 Mo. 642. A prima-facie case being made as to identity of person by proving identity of name, no amount of oral testimony by the other side, whether in the form of denial by the witness or testimony by other persons, can deprive the party seeking to show identity of the right to have that question submitted to the jury. It is like any other prima-facie case. Once established, no amount of oral testimony prevents the submission of it to the jury. Gannon v. Gas Light Co., 145 Mo. 502; Wilson v. Rutherford, 69 Mo.App. 304; Keiley v. Knights of Father Matthew, 179 Mo.App. 608; Johnson v. Grayson, 230 Mo. 380; State v. Fredericki, 269 Mo. 689. This is the rule, independent of any statute, and Sec. 6383, R. S. 1909 makes our contention absolutely unanswerable. (3) Instruction No. 1, given at the request of plaintiff, was erroneous in that, whilst undertaking to cover the entire case and all the issues embraced therein, including defense of contributory negligence, it entirely omitted reference to two specifications of contributory negligence which were material issues in the case. This has often been held to be error, and the mere fact that such defenses were submitted in a separate instruction does not cure the error. Bellows v. Travelers Ins. Co., 203 S.W. 978; Riegel v. Biscuit Co., 169 Mo.App. 513; Ross v. Met. St. Ry. Co., 132 Mo.App. 472; Payne v. C. & A. Ry. Co., 129 Mo. 405; State ex rel. Long v. Ellison, 272 Mo. 571; Hall v. Coal & Coke Co., 260 Mo. 367; Toncrey v. Railroad, 129 Mo.App. 600; Meegan v. Railroad, 161 Mo. App 48; Powell v. Railroad, 126 Mo.App. 53; Boothe v. Loy, 83 Mo.App. 607; Hohstadt v. Daggs, 50 Mo.App. 240.
Frumberg & Russell for respondent.
(1) Failure to procure a chauffeur's license is no defense to the plaintiff's cause of action. Lindsay v. Cecchi, 80 A. 523; Southern Ry. Co. v. Vaughn, 118 Va. 692; Railroad v. Wishard, 104 N.E. 592; Lockridge v. Minneapolis & St. P. Railroad, 161 Iowa 74; Zageir v. Southern Express Co., 89 S.E. 43; Derr v. Chicago, M. & St. P. Railroad, 157 N.W. 753; Black v. Moree, 185 S.W. 682; Hemming v. New Haven, 82 Conn. 661; Shaw v. Thielbahr, 82 N. J. L. 23; Light & P. Co. v. Aetna Acc. & Liability Co., 184 Ala. 601; Armistead v. Lounsberry, 129 Minn. 34; Hughes v. Steel Co., 136 Ga. 511; Crossen v. Railroad Co., 158 Ill.App. 42; Hyde v. McCreery, 130 N.Y.S. 269; Yeager v. Winton Motor Co., 53 Pa.Super. Ct. 203; Atlantic C. L. Co. v. Wier, 58 So. 641; Lucky v. Kansas City, 169 Mo.App. 666; Nafziger v. Mahan, 191 S.W. 1080. (2) Violations of statutes or ordinances constitute no cause of action or ground of defense unless they cause the injury. Karle v. Railroad, 55 Mo. 476; Holman v. Railroad, 62 Mo. 562; Kelly v. Railroad, 75 Mo. 138; Powell v. Railroad, 76 Mo. 80; Braxton v. Railroad, 77 Mo. 455; Hudson v. Railroad, 101 Mo. 13; Hanlon v. Railroad, 104 Mo. 381; Bluedorn v. Railroad, 121 Mo. 258; Jackson v. Railroad, 157 Mo. 261; Hutchinson v. Railroad, 161 Mo. 246. (3) A party cannot invoke a presumption which he has destroyed by his own evidence. Mockowik v. Railroad, 196 Mo. 550; Reno v. Railroad, 180 Mo. 483; Nixon v. Railroad, 141 Mo. 439; Bragg v. Railroad, 192 Mo. 331. (4) An ordinance requiring vehicles to keep as close as possible to the right-hand curb of the street should receive a reasonable construction. Mauchle v. Panama-Pacific Co., 174 P. 400. An instruction given for plaintiff and purporting to cover the entire case may state the qualification relating to contributory negligence in general terms, leaving it to the defendant to ask more detailed instructions. Bellows v. Travelers Ins. Co., 203 S.W. 978; Keating v. Lewis, 74 Mo.App. 226; Weller v. Railroad, 59 Mo.App. 410; Halliburton v. Railroad, 58 Mo.App. 27; Phelps v. Salisbury, 161 Mo. 1; Newcomb v. Railroad, 182 Mo. 687.
The appeal is from a judgment against both defendants in the sum of seventeen thousand dollars for personal injuries.
On the fifteenth day of May, 1915, between 3:30 and 4 o'clock a. m., plaintiff was driving his automobile north on Jefferson Avenue in the City of St. Louis when he collided with a wagon belonging to the Baking Company, driven by Keller, and was severely injured. The suit was to recover damages for the injuries thus sustained.
The negligence alleged as ground for recovery was a violation by the driver, Keller, of Ordinance No. 1327 of the City of St. Louis, regulating traffic upon the streets, as follows:
"A vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible."
The plaintiff also sets out Ordinance No. 1349 of the Revised Code of St. Louis, which related to lights required on vehicles between sunset and sunrise. The petition alleged a violation by defendant of that ordinance as a cause of the collision.
The petition also in effect alleged a violation of the statute, in that Keller drove his horse on the left side of the street and so caused the collision.
The joint answer of the defendants, after admitting that the defendant, General Baking Company, was a corporation organized and existing under the laws of New York and licensed to do business in Missouri; that at the times mentioned in the petition Keller was employed by the General Baking Company as driver of one of its...
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