Acker v. Koopman
| Decision Date | 27 May 1932 |
| Docket Number | 30304 |
| Parties | ACKER v. KOOPMAN |
| Court | Missouri Supreme Court |
Foristel, Mudd, Blair & Habenicht, of St. Louis, for appellant.
Geo. A Hodgman, J. J. Hawk, and J. Elton Wyatt, all of St. Louis for respondent.
This is an action for damages for personal injuries. Plaintiff, in October, 1927, was riding in an automobile driven by her brother, north along Broadway street in the city of St. Louis. While passing in front of defendant's residence, the automobile in which plaintiff was riding was struck by an automobile, driven by Lloyd Wiggins, and plaintiff was injured. Wiggins had driven the car he was operating from a side street. He attempted to drive in front of plaintiff's brother's car in order to go into the driveway leading into defendant's residence.
Defendant was a contractor and kept his equipment in a yard at his residence. Wiggins was employed by him to drive a truck. Defendant had another employee, Tom Sherrer, who was a bricklayer apprentice. The chief issue in this case was the relation between Wiggins and the defendant at the time of the collision. The only evidence on behalf of the plaintiff to show that Wiggins was engaged in the business of defendant, rather than his own, was the testimony of plaintiff's brother and son, which defendant denied, that after the accident defendant told them that he had sent Wiggins to get some sponges for him. Defendant's evidence was that, on the day before the collision, Wiggins told him he wanted to take his wife to the hospital the next day; that he arranged for Sherrer to drive his truck; and that he told Wiggins to work in his scaffold yard, straightening up scaffold material and cleaning tools until 10 or 11 o'clock and then leave. Defendant further testified that he left early that morning before Wiggins came to work and was out of the city until after the collision. Sherrer came to work in his own car, which he left in the scaffold yard, and went with defendant's truck on a trip, which defendant directed him to make.
Wiggins came to work after Sherrer and defendant had both left. After working a little more than two hours, he decided to borrow Sherrer's car to take his wife to the hospital. He drove away in Sherrer's car and first went to a place near by, where he bought some sponges. His testimony was that be got these sponges for his brother-in-law, who washed automobiles, and who had asked him to buy them. Wiggins said he also worked on Sundays helping in this work. His brother-in-law corroborated this testimony. Wiggins further testified that, after he bought the sponges, it started to rain and he decided to go back to defendant's scaffold yard to get his coat, which he had left there, before going to take his wife to the hospital. On the way back the collision occurred.
The jury found for defendant, and from judgment thereon the plaintiff appealed. Plaintiff assigns as error the giving of defendant's Instruction No. 2, which was as follows:
It would seem that this instruction would be clearer, either if the first sentence had ended with the words, 'on which the witness was engaged,' instead of ending at the word, 'evidence,' and then commenced as the last sentence, 'Unless you so find, then you are instructed,' etc., or, if the words, 'if you so find,' after 'engaged' were eliminated. However, this is not the complaint plaintiff makes, and, in addition to this instruction, the court also gave an instruction at defendant's request that the verdict must be for defendant if the jury found: 'That the witness Wiggins on the day of the collision temporarily left his employment with the defendant Koopman before the collision * * * that at the time of the collision the said Wiggins was driving the automobile of the witness Sherrer on an errand personal to the interests of the said Wiggins, and that the said Wiggins was not doing any act at the instance of or for the use of the defendant Koopman at the time of the collision.'
Plaintiff's instruction submitted the case under the humanitarian doctrine. Plaintiff's instruction touched very lightly upon the relation that must have existed, between Wiggins and defendant, in order for defendant to be liable. It instructed the jury upon the elements of the humanitarian doctrine, after first instructing them that if they found plaintiff was riding north on Broadway in an automobile and 'a collision occurred between said automobile and an automobile that was being driven in an eastwardly direction across said Broadway by defendant's servant and chauffeur, for and on behalf of defendant, if...
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