Bell v. Green

• Decision Date: 22 January 1968
• Docket Number: No. 53129,53129
• Citation: 423 S.W.2d 724
• Parties: Gloria BELL, Appellant, v. Gordon GREEN and Fruehauf Trailer Company, a Corporation, Respondents.
• Court: Missouri Supreme Court

Page 724

423 S.W.2d 724

Gloria BELL, Appellant, v. Gordon GREEN and Fruehauf Trailer Company, a Corporation, Respondents.

No. 53129.

Supreme Court of Missouri, En Banc.

Jan. 22, 1968.

Rehearing Denied Feb. 12, 1968.

Gerritzen & Gerritzen, by Ray A. Gerritzen, St. Louis, for plaintiff-appellant.

Robert H. Burns, Clayton, for respondent, Green.

F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary and Jaeckel, St. Louis, for respondent, Fruehauf Trailer Co.

EAGER, Judge.

Plaintiff sued Gordon Green and the Fruehauf Trailer Company jointly for personal injuries sustained when the car in which she was riding struck a Fruehauf tractor-trailer on U.S. Highway 66 on Jan. 21, 1959, about 7:50 a.m. One Perry Becker was the driver of the car; plaintiff was a passenger in the front seat; Green and Carol Brocato (then Hawkins) were in the back seat. The jury returned a verdict for $14,500 against Green and in favor of Fruehauf. Green's after-trial motion for judgment was sustained, and plaintiff's motion for judgment or a new trial against Fruehauf was overruled. Plaintiff appealed to the St. Louis Court of Appeals where an opinion was filed on July 21, 1967, affirming the action of the trial court. Subsequently, we ordered the case transferred here on plaintiff's application. In the application for transfer plaintiff's counsel specifically asked that we 'transfer her appeal as to Defendant Gordon Green' for the various reasons alleged. We consider, and rule, that plaintiff has affirmatively abandoned her appeal as to Fruehauf, although certain points as to that defendant had been briefed in and ruled by the Court of Appeals. They will not be further considered here. We shall consider plaintiff's case against Green as though brought here upon an original appeal.

The principal issue arose from the fact that defendant Green was a minor, not yet 20 years of age. Becker was also a minor, which is not so material; both girls were minors, plaintiff being 17, Carol 14. As will be developed later, the collision occurred in the lane of the tractor-trailer, under circumstances which obviously would create a submissible case of negligence against the driver of the car. In plaintiff's amended petition it was alleged: that Green was a passenger in the 1958 Chevrolet and that Becker was operating it under Green's 'direction, authorization and orders'; that Becker was the 'Instrument' of defendant Green, and on a joint venture with him; that Green, through Becker, was negligent in crossing into the westbound lane of the highway and into collision with the tractor-trailer, and in driving onto the wrong side of the highway. We omit all allegations of negligence as to Fruehauf. Green's answer consisted of denials of the substantive allegations of the amended petition and a plea of contributory negligence; also, an affirmative allegation that Green was a minor, and that he was asleep in the rear seat at the time of the collision. We note here that Becker was killed almost instantly in the collision; so far as the record shows, no suit was filed against his estate.

We shall endeavor to restrict our statement of the rather voluminous evidence as much as is practicable. Green and Becker worked at the McDonnell Aircraft plant in St. Louis County; they lived at Green's sister's house in 'Villa Ridge' in Franklin County located on U.S. Highway 66, and drove back and forth to work in the Chevrolet in question. The evidence fairly showed that the title to the car in question, acquired in July, 1958, was in the name of Green's father, Chester Green, who lived at Hartshorn, Missouri (Green's claimed place of residence), but that Green had made all the payments on it with his own money and had kept it continuously in his possession and control; he said that his father used it when he wanted to; he further testified that his father turned in a 1950 truck as the down payment on the car. In any event, Green had been using the car continuously for months and no other use was specifically shown. He had referred to it as 'his car.' Green and Becker had met the two girls in question at the 'Diamonds,' a restaurant located very near Green's sister's home; the girls had worked there for a few weeks as waitresses.

There are discrepancies in some parts of the evidence, but we shall follow the version of the plaintiff and her witnesses whenever available, since she had a verdict. The boys picked up Carol at about 7:00 p.m. on Jan. 20, in Green's car; they went to a movie in Pacific, drove around some, and then picked up Gloria Bell (then Webb) at the Diamonds at about 11:00; they went to another restaurant and ate, came back to the Diamonds and parked in the driveway of the 'dormitory' for a period described as from one to two hours. There is no evidence that anyone drank any alcoholic beverage at any time. After such lapse of time someone suggested (no one ever admitted who did so, and Green denied that he did) that they drive to Rolla. It had been snowing or sleeting intermittently during the evening and this continued at the time. Nevertheless, the group drove to a nearby filling station and got gas, which Green paid for; up to that time Green had done all of the driving. Green went to the restroom and perhaps Becker got out. Plaintiff's evidence was that when Green came out he asked Becker to drive or suggested that he drive, that the girls changed seats and Green got in the back seat. Green denied this and testified that Gloria had made some protest of Becker's actions and that when he came out of the station Becker and Gloria were already in the front seat, so he got in back. Plaintiff and Carol vehemently denied this. At any rate, Becker drove the remainder of the ill-fated expedition. No one knew what time they left for Rolla, but the speculation was that it was around 3:00 a.m. The girls, according to their testimony, soon went to sleep and remembered substantially nothing of any subsequent occurrences until after the accident; the only exception was that Carol said she faintly remembered the car being turned around after daylight and starting towards home.

At perhaps 5:30 or thereabouts (only Green testified on this) Becker stopped at a restaurant, which Green thought was in Sullivan, and the two boys ate breakfast. Green did not remember the girls going in; both of them denied doing so. When the boys returned to the car, Becker, having kept the keys, took the driver's seat and resumed driving. The bad weather continued, with snow and sleet, during all or part of the time, although Green thought the snow and sleet had slackened when they finished breakfast. He testified, however, at that time that 'it would be dangerous to drive.' It was not shown that at any time Green gave Becker any specific directions about driving. In any event, Becker continued driving. Green testified that he went to sleep in the back seat, and subsequently the collision occurred. Many facts are vague. Carol says she remembered the car being turned around at a place where there were some butane tanks, because the 'weather was getting bad.' That would seem to indicate that Becker drove on some distance towards Rolla but later turned back. Green gave no such testimony, but it seems to be conceded that Becker was driving east, back towards home, at the time and place of the collision.

Highway 66 was then a three-lane road, approximately 28 feet wide. The Fruehauf unit was headed west, a tractor with trailer, of a total length of 50 feet. Melvin DeGrasse, its driver, was the only witness who knew anything personally about the facts of the accident; he was put on the stand by the plaintiff. We shall omit many controversial details which could only concern the liability of Fruehauf. DeGrasse had spent the night at a motel outside of St. Louis and had driven about 45 miles westerly at the time of the collision; the trailer was empty, in the process of being delivered to Ft. Worth; although it was daylight, the 'marker' or parking lights were burning on the tractor and trailer. In substance, DeGrasse testified: that the road was icy in patches, with snow and sleet 'squalls'; that the road was straight with a slight downgrade toward the west; that he had come up behind a cattle truck (covered with a canvas) to a point about 100 feet from it; that the truck was moving at about 38 miles an hour, and DeGrasse had accelerated slightly intending to pass it, but he saw the Green car coming east about 1100--1200 feet away and saw also that at about 900 feet it began to enter the center lane; he determined then not to pass the truck until the car had passed; that he, DeGrasse, was traveling at approximately 35--40 miles an hour strictly in his own lane; that he estimated the speed of the car at about 60; after he saw it begin to enter the center lane it was obscured by the cattle truck, and when he next saw it, it was just clearing the left rear corner of the cattle truck and coming into his westbound lane at the same speed, headed directly at his vehicle; that he pulled his vehicle to the right, and did not have time to sound any horn; that his tractor was largely on the right shoulder at the time of impact; that the front, chiefly the left front, of the car struck the left rear side of his tractor; the car was demolished and the tractor was later rebuilt. The car bounced or was knocked backward about 56 feet, ending upon the south shoulder. When DeGrasse saw the Green car coming into his lane at approximately 100 feet, he saw no driver, although he could see the back of the front seat. He further testified: that probably a second elapsed from the time he saw the Green car clearing the cattle truck until the impact; that the cattle truck was probably eight feet wide, and that it was running very close to the line dividing the center lane from the westbound lane; that he could distinguish the dotted lines on the road; that his only thought was...