Mebas v. Werkmeister
| Citation | 299 S.W. 601 |
| Decision Date | 08 November 1927 |
| Docket Number | No. 19546.,19546. |
| Parties | MEBAS v. WERKMEISTER |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
Action by John Mebas against Emil Werkmeister, represented by his guardian, and another. Judgment for plaintiff, and from an order granting defendant's motion for a new trial plaintiff appeals. Reversed and remanded, with directions.
Frank A. Habig and D'Arcy & Neun, all of St. Louis, for appellant.
Geers & Geers, of St. Louis, for respondents.
This is an action for damages for personal injuries growing out of an automobile accident. Plaintiff recovered a verdict for $6,500, which verdict, upon defendants' motion for new trial, was set aside. From such plaintiff appeals to this court.
The announced grounds upon which the motion for new trial was sustained was that error was committed in giving instructions 1, 2, and 3 on the part of plaintiff, and a failure to give instruction 12 on behalf of defendants. This may be treated together, as they raise but one question, and that is as to whether the case was properly submitted to the jury on the theory that there was sufficient evidence to the effect that the driver of the machine was acting in the interest of his father, the defendant Severin Werkmeister, to make the doctrine of respondeat superior applicable.
The petition alleges that the defendant Emil Werkmeister, while in the line of his duty, and in the discharge of his obedience and duty to his father, Severin Werkmeister, and while in the performance of the duty, business, and commission owing to his father, negligently struck, and seriously injured, plaintiff. It is charged that defendant Emil Werkmeister, while driving his father's automobile in the city of St. Louis on December 20, 1923, seriously injured plaintiff, and specifies as negligence: The failure to keep as near the right-hand side of the street as possible; failure to warn; failure to keep brakes in good condition; excessive speed; and relies also on the humanitarian doctrine. There are other assignments of negligence, none of which need here be discussed, since no question arises about them.
The defendant Emil Werkmeister, a minor, filed an answer by Severin Werkmeister, his guardian ad litem, which is, first, a general denial, together with a plea of contributory negligence. Defendant Severin Werkmeister filed an answer, in which he admits that he was the owner of the Ford automobile which caused the injury, and admits that his son Emil Werkmeister was driving and operating the automobile at the time of the accident, but denies that the son was employed or engaged in his (Severin Werkmeister's) business, but that the son was operating the Ford automobile without this defendant's consent, or at his request, or under his direction, and then further alleges that the boy was engaged in his own private business at the time.
The reply is a general denial.
Since there is not, and cannot be, any question about the sufficiency of the evidence to submit the case to the jury as to Emil Werkmeister, the driver of the machine, we will recite only so much of the record as bears directly on the point before us for decision; that is, whether under this record the father is liable for the negligence of his 17 year old son while driving the father's automobile to or from high school, on the theory that the son was then acting in the interest of his father and not on a journey of his own, disconnected with the interest of the father.
The evidence tends to show that plaintiff, on the morning of December 20, 1923, was riding in the side seat of a motorcycle in St. Louis county, near the limits of the city of St. Louis, on Gravois avenue; that, when he arrived at that point, and within the city limits, he and his companion got off of the motorcycle and started to cross Gravois avenue, when defendant Emil Werkmeister ran over him with the automobile in question while driving same at from 30 to 40 miles an hour; that defendant Emil Werkmeister did not slow down or stop or sound a signal, nor swerve the automobile in order to avoid striking plaintiff. It is in evidence that plaintiff, after the injury, was taken to the city hospital in St. Louis, where he remained two weeks, and he was then removed to a private hospital, where he remained seven weeks longer. He suffered, among the injuries, a fracture of two bones in his left leg; the bones having protruded through the flesh of the leg, necessitating a surgical operation to set the leg. He remained home for a long period of time, and was not able to work for one year after the accident. It was shown that his hospital and doctor expenses amounted to more than $1,000; that he lost wages of upwards of $1,700; and that the injury is permanent; and that the injured leg will remain crooked, and shorter than the other one. There is no question with reference to the extent of the injury.
Plaintiff's evidence supporting the allegations of negligence was denied by witnesses on the part of defendants, but a clear and strong case was made for the jury in that respect.
Now, as to the evidence relating to the question as to whether a case was made for the jury against the father, defendant Severin Werkmeister. We will refer to these defendants as father and son without repeating their full names.
Plaintiff introduced a deposition of the son, in which he admitted that he was 17 years of age the day before the accident; that he was living with his parents, both of whom were living; that his father was the owner of the automobile in question; and that he (the son) was driving same when he struck plaintiff; that his father had owned the machine for about two years; and that on this day he was on his way to the Kendrick High School in the city of St. Louis, quite a distance from his home, he and his parents living in St. Louis county. He testified further that he used the automobile regularly in the summer, but not regularly during the winter months; that his father knew that he used the machine, and permitted him to use it, and, quoting the record, "that his father permitted him to use the automobile every day; that his father is a gardener at Affton, Mo., and that during the summer time, when he did not go to school, he would help his father at his place; that his father never drives the automobile; that his father did not know how; and that witness did all of the driving; and that in going to and from school he drove the automobile himself; that, if his folks wanted to go out and take a drive, witness would do the driving, and that he acted as chauffeur for the family; that no one else in the family drove the automobile at all; that, at the point where he struck plaintiff, the Cherokee line car comes around a little parkway there off of Gravois avenue; * * * that, while on the way to school on that day, there was nothing else he was going to do that day." A question was then asked, "Just going to school and coming back," with the answer, "Coming home; yes, sir;" "that there was no reason for his getting home at a certain time; he always got home at the same time; that he helped his father in the evenings when he got home; that as soon as he got back home with the...
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