Shelton v. Wolf Cheese Co.

• Citation: 93 S.W.2d 947,338 Mo. 1129
• Decision Date: 23 April 1936
• Docket Number: 33515
• Parties: Frank Shelton v. Wolf Cheese Company, a Corporation, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 947

338 Mo. 1129

Frank Shelton v. Wolf Cheese Company, a Corporation, Appellant

No. 33515

Supreme Court of Missouri

April 23, 1936

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Reversed and remanded (with directions).

Culver Phillip, Kaufmann & Smith for appellant.

(1) The giving of an erroneous instruction on the part of the defendant cannot constitute prejudicial or reversible error or authorize the granting of a new trial if the record shows the plaintiff made no case, and a demurrer to the evidence should have been sustained. Chappee v. Lubrite Refining Co., 85 S.W.2d 1034; Trainer v. Haeterite Mining Co., 243 Mo. 359; Barr v. Ry. Co., 37 S.W.2d 927. (2) In order to fasten liability on appellant, it was necessary for the plaintiff both to plead and prove that at the time plaintiff was struck by an automobile driven by D R. Reid the driver was operating the car within the scope of his employment and upon the business of his master. (a) The petition did not allege any such fact and is fatally defective. Snyder v. Railroad Co., 60 Mo. 413; Noggle Wholesale & Mfg. Co. v. Sellers & Marquis Roofing Co., 183 S.W. 659; Walker v. Ry. Co., 121 Mo. 575. (b) There was no evidence offered or received to establish that fact excepting a telephone conversation with the appellant's manager, Carl J. Brath, in the course of which Brath said that on December 2, 1932, at the time of the accident, D. R. Reid was working for appellant and was calling on customers. The alleged statement of the manager was made March 15, 1933, more than three months after the transaction, and in reply to information requested by plaintiff's counsel. That testimony was incompetent because it was hearsay and did not relate to any transaction then pending with which the manager was connected, but was the recital of a past event, and does not furnish any competent testimony to take the case to the jury. Adams v. Ry. Co., 74 Mo. 553; Rogers v. McCune, 19 Mo. 557; Carson v. Stock Yards Co., 167 Mo.App. 443; Devlin v. Ry. Co., 87 Mo. 545; McDermott v. Ry. Co., 87 Mo. 285; Savings Bank v. Denker, 275 Mo. 607; Parr v. Ill. Life Ins. Co., 178 Mo.App. 155.

Meyer & Imbersteg and Horace Merritt for respondent.

The admission made by the office of the Wolf Cheese Company over the telephone was clearly admissible. 1 Greenleaf on Evidence (15 Ed.), p. 173, sec. 114; Hawk v. Applegate, 37 Mo.App. 39; Updyke v. Wheeler, 37 Mo.App. 686.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for damages for personal injuries sustained by plaintiff Frank Shelton, on the night of December 2, 1932, when he was struck by an automobile, driven by D. R. Reid. The casualty occurred near the southeast corner of the intersection of Twelfth Street and Mitchell Avenue in St. Joseph, Missouri, as Shelton, a pedestrian, was attempting to cross from the south to the north side of Mitchell Avenue. Emerson Reid, a brother of D. R. Reid, the driver, was the owner of the automobile. D. R. Reid was an employee of the Wolf Cheese Company, a corporation, which conducted a business in St. Joseph. This action was against Emerson Reid, the owner of the automobile, and the Wolf Cheese Company, as defendants. On the trial of the case, in the Circuit Court of Buchanan County, plaintiff took a nonsuit as to defendant Emerson Reid, at the conclusion of the evidence on the part of the plaintiff, but the case was submitted to the jury as to the other defendant, Wolf Cheese Company. The jury returned a verdict for defendant company. Plaintiff's motion for a new trial was sustained on the ground, specified of record, that, "the court erred in giving Instruction 'G' on the part of defendant." The defendant company thereupon appealed from the order granting a new trial and as the amount of damages asked exceeds $ 7500 we have jurisdiction of the appeal.

Appellant does not contend here that the instruction specified in the order granting a new trial, as ground therefor, was not erroneous but rests its appeal upon the proposition that, under the evidence, a submissible case was not made and that the trial court erred in refusing its instruction, in the nature of a demurrer to the evidence as a whole, directing a verdict in its favor. If this contention is sustained and upon the whole evidence plaintiff was not, as a matter of law, entitled to have the case submitted to the jury it follows that error, if any, in the instruction is immaterial, for "if plaintiff has no case, he cannot be hurt by erroneous instructions." [Barr v. Missouri Pac. Railroad Co. (Mo.), 37 S.W.2d 927; Allen v. Larabee Flour Mills Corporation, 328 Mo. 226, 231, 40 S.W.2d 597, 600; Bello v. Stuever (Mo.), 44 S.W.2d 619; Chappee v. Lubrite Refining Co., 337 Mo. 791, 85 S.W.2d 1034; Traner v. Sphalerite Mining Co., 243 Mo. 359, 148 S.W. 70.]

The petition alleges several acts of negligence in the operation of the automobile by D. R. Reid as the proximate cause of plaintiff's injuries. The case was submitted on excessive speed, driving to the left of the center of the street and failure to warn. The defendant cheese company, as appellant, does not contend that there was no substantial evidence tending to show negligence on the part of the driver Reid, but says there was no competent, substantial evidence adduced tending to show that at the time plaintiff was struck and injured D. R. Reid was driving the automobile upon or in connection with, or in furtherance of, its business, or in its behalf, or in the course of his employment by it. We shall therefore refer but briefly to the evidence relating to the manner in which the casualty occurred.

Twelfth Street, a north and south street, in the city of St. Joseph, is intersected by Mitchell Avenue, an east and west street. A telephone pole from which a guy wire ran to the ground stood a short distance east of the southeast corner of the intersection. Plaintiff testified that about eight o'clock the night of December 2, 1932, he was struck by the automobile as he was walking north across Mitchell Avenue, along the east side of Twelfth Street; that at the time he was struck he "was over to the north side of Mitchell," within "about 15 feet of the north side of Mitchell" and "the car came from the west;" that before going into Mitchell Avenue he "looked east and west" and saw two cars "east of me and one west" which "looked to be about a block away." The width of Mitchell Avenue is not stated. Plaintiff's witness Shea stated, that he was walking east on the south side of Mitchell Avenue and on the west side of Twelfth Street; that as he reached the west side of Twelfth Street he "heard the brakes squeak, looked that way," and "saw him (Shelton) roll out in the street;" that the automobile was stopped with the front wheels over the curbing on the south side of Mitchell and the back wheels in the street; that the automobile broke the guy wire on the telephone post and stood "headed southeast;" that as the automobile went through the intersection it "was about in the middle of the street" and "going in the neighborhood of 45 or 50 miles an hour." As noted this occurred the night of December 2, 1932. The driver D. R. Reid died approximately one month thereafter, January 3, 1933. Three of the other occupants of the automobile (a Plymouth sedan), called as witnesses for defendant, testified in substance; that D. R. Reid was driving the automobile east on Mitchell Avenue; that as he neared Twelfth Street he slowed up and as he entered and crossed the intersection he increased the speed so that when he reached the east side of Twelfth Street the automobile "was traveling 20 to 25 miles an hour;" that the automobile was traveling south and to the right of the center of Mitchell Avenue, the right side of the automobile being within three or four feet of the south side of the avenue; that the automobile had passed the sidewalk on the east side of the intersection when plaintiff walking "rapidly" north suddenly came into the street from behind the telephone pole and about ten feet directly in front of the automobile; that Reid "put on the foot brake and also the emergency brake and at the same time turned the car" to the right and over the south curb, striking and breaking the guy wire of the telephone pole; that the "left front part" of the automobile struck plaintiff; and that the automobile stopped in about the position described, supra, by plaintiff's witness Shea.

The undisputed evidence is, that D. R. Reid, a single man, age about forty-seven, lived at the home of his brother Emerson Reid. Mr. and Mrs. Emerson Reid and Mr. and Mrs. Schaffer Mrs. Schaffer's son, "Billy" Shane and D. R. Reid resided at the same house, 2762 Jackson Street, in St. Joseph. Both Emerson Reid and Schaffer were employed but neither was employed by defendant Wolf Cheese Company nor so far as the record shows ever worked for that company. D. R. Reid entered the employ of the cheese company in April, 1932, and was thereafter regularly employed by the company until his death in January, 1933. It seems the company carried on a wholesale business. D. R. Reid was a "truck salesman." He drove a "refrigerator truck" stocked with the company's products over a regular assigned route, making daily calls on stores and retailers in the territory assigned to him. He would call at stores and retail markets on his route ascertain the needs, in that line, of the merchant or dealer and make immediate delivery from the truck of the products or merchandise desired. The truck was owned by the company which operated four of these refrigerator trucks at St. Joseph. On December 2, 1932, a Mr. and Mrs. Lay and their son, residents of Jackson, Missouri, were visiting at the Reid-Schaffer home...