Oliver v. Morgan, 32113.

• Citation: 73 S.W.2d 993
• Decision Date: 17 July 1934
• Docket Number: No. 32113.,32113.
• Parties: OLIVER et ux. v. MORGAN.
• Court: United States State Supreme Court of Missouri

73 S.W.2d 993

OLIVER et ux. v. MORGAN.

No. 32113.

Supreme Court of Missouri, Division No. 1.

July 17, 1934.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Ausbon Leroy Oliver and his wife against Charles R. Morgan and International Harvester Company, wherein a demurrer to the evidence was sustained as to the second named defendant, whereupon plaintiffs took a nonsuit as to such defendant. From a judgment for first named defendant, plaintiffs appeal.

Affirmed.

Everett J. Hullverson and Staunton E. Boudreau, both of St. Louis, for appellants.

Allen, Moser & Marsalek, of St. Louis, for respondent.

STURGIS, Commissioner.

This is an action for damages under sections 3263 and 3264, R. S. 1929 (Mo. St. Ann §§ 3263, 3264, pp. 3371, 3377), to plaintiffs as father and mother of the deceased for the death of their minor son caused, as is alleged, by the negligence of the defendant. It is alleged and conceded that plaintiffs' minor child, a boy about six years old, was run over and killed on Cass avenue, in St. Louis, by an automobile driven by the defendant Charles R. Morgan. The International Harvester Company was also made a defendant on the theory that defendant Morgan was its agent and servant in driving this automobile at the time of the accident and it was therefore liable under the doctrine of respondeat superior. The petition charges Morgan with negligence in causing this child's death, in that he was driving his automobile at a high, excessive, and dangerous rate of speed, in driving the car in violation of one or more of the ordinances of the city, in failing to keep a vigilant watch so as to discover the deceased on the street or to sound a warning, slacken the speed, or swerve the automobile so as not to strike said child. The petition also charges a violation of the humanitarian rule of negligence thus: "That defendant negligently failed to keep a vigilant watch for persons and vehicles on the street or in the pathway or approaching the pathway of defendant's automobile, when, by keeping such watch, defendant could have seen said Ausbon Leroy Oliver, Jr., deceased, on the street therein or approaching the pathway of defendant's automobile, in time for the defendant to have stopped the said automobile, slackened the speed thereof, sounded a warning or swerved the automobile and thus and thereby have avoided striking and injuring the said Ausbon Leroy Oliver, Jr., deceased, but defendant negligently failed to do so."

The case was tried by a jury, and at the close of plaintiffs' case the court sustained a demurrer to the evidence as to the International Harvester Company on the ground that the evidence failed to show that defendant Morgan was engaged in any work or service of said company or that it was liable for Morgan's act in running down this child. The plaintiffs then took a nonsuit as to such defendant, it dropped out of the case, and the trial proceeded against defendant Morgan. The plaintiffs asked and had the case submitted to the jury on the sole ground of the violation of the humanitarian rule of negligence. The jury, under the instructions given, found a verdict for defendant Morgan, and judgment was entered accordingly, from which judgment plaintiffs have appealed.

The evidence is conclusive that defendant Morgan was not the agent and servant of the International Harvester Company or engaged in any work or service for it on the occasion in question, and if this appeal is broad enough to cover the action of the court in forcing plaintiffs to take a nonsuit as to that defendant and then refusing to set it aside, no error was committed. Nor do plaintiffs assign or urge any error in this respect. Also, as the liability of that company rests solely on the doctrine of respondeat superior, the verdict for defendant Morgan was in effect a verdict for that company. McGinnis v. Chicago, R. I. & P. Ry. Co., 200 Mo. 347, 362, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656; Whiteaker v. Chicago, R. I. & P. Railroad Co., 252 Mo. 438, 450, 160 S. W. 1009; Brunk v. Hamilton-Brown Shoe Co. (Mo. Sup.) 66 S.W.(2d) 903.

The facts as to the accident are that defendant Morgan was driving his automobile east on Cass avenue along the right or south side. The deceased child, with some companions, was playing along the south sidewalk or the adjacent vacant lot. A man selling toy balloons came along and these children became interested in them. When the balloon man started to cross the street to the north side, the children, including the deceased, started to follow him. This was near the center of the block. It was a disputed fact whether or not there were a number of automobiles parked along the south side of the street next to where the children were playing and looking at the balloons. The defense of defendant Morgan is that he was driving on the proper side of the street at a moderate rate of speed and in the space between the street car track in the center of the street and the automobiles parked along the south side next to the curb; that the automobiles obstructed his view of the sidewalk space and for a short distance in the street, though he says he was not paying much attention to any one who might be on or along the sidewalk; that he did not see the deceased child till he suddenly darted out into the street from between two parked cars next to the south curb some five or six feet in front of his car; that he was almost on the child when it darted in front of his car from between the parked automobiles; that he tried to swerve the car to the north and at once put on his brakes, but that the child came into danger so suddenly and so close to his car that he could not avoid striking him. This was the main issue in the case. There was some evidence for plaintiffs that defendant was driving at a speed of thirty-five miles an hour and he could perhaps have been convicted of primary negligence. The plaintiffs chose, however, to rest their case solely on the humanitarian doctrine and asked and the court gave for them an instruction, the material part of which reads: That if the jury find that the child came into a place of imminent peril in front of defendant's automobile, "and that defendant Morgan saw, or by the exercise of the highest degree of care could have seen, said Leroy Oliver in such position of imminent peril, if you so find, in time for the defendant Morgan thereafter, by the exercise of the highest degree of care, with the means and appliances then at hand and with reasonable safety to said automobile and its occupants, to have stopped the said automobile, slackened the speed thereof, swerved the same or given warning to said Leroy Oliver of its approach and movement, and that defendant Morgan could thereby have prevented said automobile striking said Leroy Oliver, and that said defendant failed to do so, and in so failing, if you so find, was negligent, and that said automobile did strike said Leroy Oliver, causing injuries which resulted in his death, as a direct result of such negligence, if you so find, causing plaintiffs to suffer damage thereby," then to find for plaintiffs.

This and another instruction defining the highest degree of care and one on the measure of damages, to the effect that if "you find in favor of the plaintiffs, you will assess their damages, if any, at such sum as you may deem fair and just, with reference to the necessary pecuniary injury resulting to plaintiffs from said death, and also having regard to the mitigating or aggravating circumstances, if any, attending the neglect or default, if any, of defendant," were all the instructions asked or given for plaintiffs.

The errors assigned here relate to the instructions given for defendant. It is said that the court erred in giving this instruction for defendant: "The charge laid by plaintiffs against the defendant is one of negligence. You cannot presume that defendant in this case was negligent. In other words, plaintiffs may recover on said charge of negligence only if such charge is sustained by the preponderance, that is, the greater weight, of the credible evidence to the reasonable satisfaction of the jury that the charge is true as laid, and it does not devolve upon the defendant to disprove the charge, but rather the law casts the burden of proof in respect of it upon the plaintiffs, and such charge of negligence must be sustained by the preponderance, that is, the greater weight, of the credible evidence to the satisfaction of the jury, as above stated."

This instruction is characterized as a "lecturing" instruction and is claimed to be erroneous in impressing the jury that it should find for defendant unless defendant was guilty of primary negligence. We do not think so. The jury had before it only the one instruction of plaintiffs above quoted requiring the jury to find for plaintiffs if defendant was negligent under the humanitarian rule. That was the charge laid by plaintiffs against the defendant, and this instruction speaks of it in the singular as the charge of negligence, and we do not see how the jury could understand otherwise. That was the charge of negligence on which the plaintiffs sought a verdict, and that charge was not to be presumed, but...