Bauer v. Holtkamp
| Decision Date | 20 April 1965 |
| Docket Number | No. 31890,31890 |
| Parties | Francis M. BAUER, Plaintiff-Respondent, v. James HOLTKAMP, Defendant-Respondent, and Mary Jane Sullivan, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Omer H. Avery, Troy, Derrick & Holderle, St. Louis, for defendant-appellant.
Hungate & Grewach, Troy, for plaintiff-respondent.
Edwards, Seigfreid & Runge, Mexico, Mo., for defendant-respondent.
FRANK D. CONNETT, Jr., Special Judge.
It was about 1:00 o'clock in the morning on April 18, 1962, when a card party in the home of Mr. and Mrs. William Edelen in Millwood, Lincoln County, Missouri, ended, and the guests began to leave. Among those leaving were Patrick and Mary Jane Sullivan, husband and wife. They were in a Ford automobile, belonging to Mary Jane and being driven by Patrick. They intended to go home. He backed the automobile northwardly out of the Edelen driveway, and on to a blacktop road, designated Highway E, running east and west. He failed to turn short enough and crossed the road and backed into a four-foot ditch and became stuck. This left the front end of his car blocking most of the north half of the road. While Patrick and four or five other guests were trying to get the Ford out of the ditch, James Holtkamp, driving an Oldsmobile automobile, approached from the east. He crested the hill some 150 feet east of the stalled Ford; was unable to stop; swerved out to his left; traveled 164 feet farther west on a course which took him into and along a two-foot deep ditch, and out again and across the yard of William Edelen and crashing into a house next door, belonging to Francis Bauer. The collision damaged the house in the amount of $974.
Francis Bauer brought suit in the Circuit Court in Lincoln County against James Holtkamp and Mary Jane Sullivan for this damage. The case was tried in the Court without a jury and the Court found in favor of the plaintiff and against defendant Mary Jane Sullivan in the amount of $974. The Court found in favor of defendant Holtkamp. After an intervening motion for new trial, defendant Sullivan appeals to this Court.
Defendant's first contention is that the plaintiff, Francis M. Bauer, is not the real party in interest and the suit should be dismissed. The only evidence pertaining to this issue came from the cross-examination of plaintiff. Plaintiff testified that the Farm Bureau Insurance Company had paid him some $970 for his entire loss; that as far as he knew, he was just there as a witness and would not get any of the money if judgment were rendered in his favor. When asked by the cross-examiner whether or not he had transferred his rights, arising out of the damage to his house, to any other person or corporation, he replied that he didn't know what the examiner meant; that he had endorsed the check but didn't know whether anything was written on the back of the check or not; that he signed no other papers. As noted by the able trial Judge, the proposition stated in the case of Hayes v. Jenkins, Mo.App., 337 S.W.2d 259, is on all fours with this case. There was no evidence offered that there had been an assignment of the cause of action or a satisfaction and release. An assignment or release of a cause of action cannot be inferred solely from the fact of payment. Bare legal title to the cause of action is sufficient to maintain an action at law. There being evidence that plaintiff was the owner of the house that was damaged and it not appearing that plaintiff assigned his claim or entered into a satisfaction and release, the contention that plaintiff was not the real party in interest is denied.
Appellant's next point is that the evidence does not support the finding that defendant Mary Jane Sullivan was negligent. The evidence was that defendant's husband, Patrick, was driving the Ford when it was backed into the ditch, and the negligence was therefore his. However, respondent points out that the evidence also shows that defendant Mary Jane Sullivan owned the automobile, was personally present when it was being driven by Patrick, and that the owner and driver were engaged in a joint venture, to-wit, returning to their home from the party. He contends, therefore, that in such an instance, the negligence of Patrick, the driver, is imputable to the owner, and cites Kieffer v. Bragdon, Mo.App., 278 S.W.2d 10, 16. Imputed negligence was the basis of the trial court's finding that Mary Jane Sullivan was negligent.
Appellant in his reply brief agrees with this proposition of law but attempts to counter respondent by contending that since plaintiff did not plead this theory of imputed negligence, but pleaded specific negligence, that he will not be permitted to recover on a theory of imputed negligence. He argues that the law is that a plaintiff having pleaded a specific charge of negligence or a specific theory of recovery, he will not be permitted to recover on any other ground or theory; that since he did not plead his theory of imputed negligence, he cannot rely upon it to sustain a judgment; that he was bound by the theory he pleaded. Although appellant's rule of law is sound, it does not apply in this instance. Relying on imputed negligence after having pleaded specific negligence is not changing the ground or theory of recovery. Imputing the negligence of one to another has nothing to do with whether the negligence was pleaded specifically or generally, or what act or acts alleged to constitute actionable negligence make up one's theory of recovery.
The reason or basis for the rule of imputed negligence in these automobile cases is that a relation of principal and agent, or master and servant, exists between the owner and the driver of an automobile, and the owner being personally present in the automobile at the time, and having the control and authority of a principal, or master, is responsible for and bound by the negligence of his agent or servant. Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014, 1025. It is not necessary to plead agency relationship when the allegation is that the act was committed by the master, or principal, or, as in this case, by the owner, Mary Jane Sullivan. The fact that the act was committed by the agent or servant (here a husband and driver), supports the allegation and does not affect the recovery. The fact is pleaded according to its legal effect. See Gordon v. Bleeck Automobile Co., Mo.App., 233 S.W. 265, 266(3), and cases there cited. See also E. C. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636, 642(16). Judge Ellison in the case of McCoy v. Kansas City, St. J. & C. B. R. Co., 36 Mo.App. 445, 452, states the...
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