Blind v. Saks Fifth Ave., Inc.
Decision Date | 19 September 1961 |
Docket Number | No. 30612,30612 |
Citation | 349 S.W.2d 425 |
Parties | James P. BLIND, (Plaintiff) Appellant, v. SAKS FIFTH AVENUE, INC., Weisels-Hoehn Real Estate Company, Albert Ross, Floyd Weekley, (Defendants), Saks Fifth Avenue, Inc., Weisels-Hoehn Real Estate Company, (Defendants) Respondents. |
Court | Missouri Court of Appeals |
Hocker, Goodwin & MacGreevy, Donald J. Stohr and John M. Goodwin, St. Louis, for appellant.
David G. Dempsey, Barnhart & Sommers, Donald B. Sommers, St. Louis, for respondent Saks Fifth Avenue, Inc.
William Kohn, St. Louis for respondent Weisels-Hoehn Real Estate Co.
This case comes to the writer on reassignment. It is a suit by plaintiff, appellant herein, for personal injuries sustained in a collision between two automobiles. Plaintiff obtained a verdict and judgment in the amount of $5,000 against defendants, Weisels-Hoehn Real Estate Company, Saks Fifth Avenue, Inc., and Albert Ross. There was a verdict in favor of defendant Lloyd Weekley.
Separate motions for a directed verdict and for a new trial were filed by defendants, Weisels-Hoehn Real Estate Company and Saks Fifth Avenue, Inc. Defendant Albert Ross filed a motion for new trial only. The trial court sustained the separate motions of Weisels-Hoehn Real Estate Company and Saks Fifth Avenue, Inc., for a directed verdict and entered judgment in favor of each of said defendants in accordance with their separate motions and further ordered that said defendants' motions for a new trial be denied if its action in sustaining said motions for directed verdict be reversed on appeal. The trial court overruled the motion for new trial filed by defendant, Albert Ross. The individual defendants will be referred to by their last names and the corporate defendants as Weisels-Hoehn and Saks. Plaintiff has appealed from the judgment of the court sustaining the separate motions for directed verdict of Weisels-Hoehn and Saks.
Plaintiff insists that there was substantial evidence to support the jury findings that defendant Ross was the servant of Saks and was acting as servant and on behalf of Weisels-Hoehn at the time of the collision.
In determining whether plaintiff made submissible issues, in the above respects, for the jury, we must view the evidence in the light most favorable to plaintiff and accord to him the benefit of all favorable inferences that reasonably arise from all the evidence. Rhyne v. Thompson, Mo., 284 S.W.2d 553; Brown v. Pennsylvania Fire Ins. Co. of Philadelphia, Mo.App., 263 S.W.2d 893.
On March 17, 1958, plaintiff was operating a 1958 Ford automobile westwardly on McPherson Avenue, a four-lane highway in the City of St. Louis, on which there were streetcar tracks. At the intersection of McPherson and Euclid Avenues he brought his Ford to a stop, the intersection being protected with four way boulevard stop signs. The stop sign for traffic traveling westwardly on McPherson was 8 to 10 feet east of the east curb line of Euclid. Immediately ahead of plaintiff, as he was driving toward the intersection, was a tractor-trailer truck. The tractor-trailer was making a left turn to go southwardly on Euclid. After the tractor-trailer pulled forward, preparatory to making the left turn, plaintiff stopped his car at the stop sign for westbound traffic. On the day in question a light snow was falling and the streets were 'a little bit wet--they weren't icy but they were wet.' Plaintiff's car was stopped about 2 to 2 1/2 feet north of the center of McPherson and no part of his car was south of the center of the street.
While in this stopped position, plaintiff saw for the first time a black Studebaker car driven by defendant Ross, the front end of which was just north of the south curb line of McPherson, at which time the tractor-trailer truck was in the act of making a left turn and when doing so blocked the progress of northbound traffic on Euclid. At the time plaintiff first saw the Studebaker car the back end of said car was 'just about even with the stop sign' for northbound traffic on Euclid. The distance from the stop sign to the south curb of McPherson was about 14 feet. When plaintiff first saw the Studebaker car it 'was heading in a northeast direction, trying to go around that corner.' By this plaintiff meant the Studebaker car was attempting to turn right onto McPherson.
When plaintiff first saw the Studebaker car traveling 'in a northeast direction,' he said, 'it was coming right at me.' The right front of the Studebaker car hit the middle of plaintiff's car. The impact slammed plaintiff's car into a fire plug. Plaintiff estimated the speed of the Studebaker car when he first saw it at 30 miles per hour and it never did slacken its speed before the collision, nor was a horn sounded. Plaintiff heard nothing that would indicate the brakes had been applied prior to the collision and testified it was impossible to reach a speed of 30 miles per hour in a distance of 14 feet. When the collision took place the tractor-trailer truck was still in the intersection making a left turn onto Euclid and was moving 3 or 4 miles per hour. The Studebaker car could not have proceeded north on Euclid without colliding with the tractor-trailer truck. Defendant Ross, driver of the Studebaker car, told a police officer in the presence of plaintiff that 'he worked for Saks Fifth Avenue.' Plaintiff thought the distance from Maryland Avenue to McPherson Avenue on Euclid Avenue was 2 or 3 blocks. Plaintiff did not know whether the police checked the brakes on the Studebaker car after the collision. He saw defendant Ross get into the car, with a policeman looking on, but he did not know what Ross did.
Defendant Albert Ross testified as a witness for plaintiff. Ross said he was employed by Saks as a parking lot attendant at 4637 Maryland Avenue. The lot was used for parking cars of the customers of Saks and was also used for this purpose by the tenants of the Maryland Medical Building and the patrons of the tenants. Randolph Milton, employed to park cars for tenants and patrons of the Medical Building, was also an attendant on the parking lot. Ross explained that his duties were to park the cars 'for the customers' and to give them a ticket when the car was parked. Two kinds of tickets were used in connection with the parking of cars on the lot. If the one parking the car was a customer of Saks, he or she, was given a white ticket with brown letters. If the one parking the car was a tenant of the Medical Building or a patron of a tenant, he or she, was given a brown ticket with darket brown letters. Saks furnished the white tickets. The brown tickets were furnished by the Medical Building. Concerning the parking procedure on the lot the following interrogation took place:
It was part of his duties to deliver cars of the customers of Saks down to the store, which was a short distance from the parking lot, and to bring cars from the store for parking on the lot. Ross was asked if there were occasions when Randolph Milton would bring cars to and from Saks' store when he was busy and he answered 'Never.'
Ross further testified that the west side of the lot was for the cars of the customers of Saks and the east side was for the cars of the tenants and patrons of the Medical Building. He said his salary was paid by Saks and at the time he went to work for them he was instructed to cooperate with Randolph Milton, the other attendant on the parking lot.
He was not supposed to take a customer's car off the lot, unless he was directed to bring it down to Saks' store at the request of the doorman at the store. When asked if it was not a fact that he was not supposed to operate a customer's car without the customer's permission, except the occasions when he was directed to bring the car to the store, he answered: He admitted that he was instructed not to drive a customer's car, except to move it from one side of the lot to the other.
When Ross was asked from whom he received his instruction, he said, Mr. Summerfield and Mr. Cavanaugh, Manager and Assistant Manager, respectively, of Saks. They never gave instructions to Randolph Milton. Milton received his instructions from Dr. Flance. Dr. Flance was the only one who gave instructions to Milton as far as Ross knew. However, he added, that Dr. Flance told him and Milton to 'work together' when they were busy. Ross had been an attendant on the lot for 2 or 3 years. The parking lot would hold about 100 cars. There were about 20 to 25 cars on the lot at the time Weekley brought in his car.
Ross recalled when Floyd Weekley brought his Studebaker car to the parking lot on March 17, 1958. When Weekley drove into the lot neither attendant met him. Weekley parked his car on the west side of the lot, got out of it and came to Ross for a ticket....
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