Borgstede v. Waldbauer

• Decision Date: 20 November 1935
• Parties: Anna Borgstede v. William Waldbauer and G. H. Wetterau & Sons Grocery Company, a Corporation, Appellants
• Court: Missouri Supreme Court

88 S.W.2d 373

337 Mo. 1205

Anna Borgstede v. William Waldbauer and G. H. Wetterau & Sons Grocery Company, a Corporation, Appellants

Supreme Court of Missouri

November 20, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Reversed and remanded.

Forest P. Tralles for William Waldbauer; Fordyce, White Mayne & Williams and G. Carroll Stribling for G. H. Wetterau & Sons Grocery Company.

(1) The trial court erred in giving and reading to the jury plaintiff's Instruction 1, for the following reasons: (a) Plaintiff's Instruction 1 allows the jury to find in favor of the plaintiff and against defendants without requiring the jury to find that the collision causing the injury to plaintiff's husband was the direct or proximate result of the acts of negligence set forth in said instruction. Lackey v. United Rys. Co., 288 Mo. 120 231 S.W. 956; Moon v. St. Louis Transit Co., 247 Mo. 227, 152 S.W. 303; Iman v. Walter Freund Bread Co., 58 S.W.2d 477, 332 Mo. 461; St. Louis & H. Ry. Co. v. Walsh Fire Clay Products Co., 16 S.W.2d 616; Reavis v. Gordon, 45 S.W.2d 99; Desano v. Hall, 14 S.W.2d 483; White v. Handy, 245 S.W. 613. (b) Plaintiff's Instruction 1 allows the jury to find in favor of plaintiff and against defendant, if defendant negligently failed to give warning of the approach of defendant's automobile, without requiring the jury to find that the deceased, Louis Borgstede, was oblivious of his peril. Obliviousness is a necessary element to make a case for failure to warn under the humanitarian rule because unless plaintiff is oblivious or ignorant of the peril a warning will do no good. Pentecost v. Railroad Assn., 66 S.W.2d 533; Jordan v. St. Joseph Ry., L. & P. Co., 73 S.W.2d 205; Driscoll v. Wells, 29 S.W.2d 50; Wood v. Wells, 270 S.W. 332; Peterson v. United Rys. Co., 270 Mo. 67, 192 S.W. 938. (c) Plaintiff's Instruction 1, in stating the humanitarian rule, directs the jury to find for the plaintiff if defendant saw, or by the exercise of the highest degree of care could have seen, deceased in a position of imminent peril, and thereafter, by the exercise of the highest degree of care through the use of the means and appliances at hand, without injury to himself, his automobile, or other persons, could have avoided injuring the deceased by stopping said automobile, checking its speed, altering its course, or giving warning of its approach, and failed so to do. The proper test is whether the accident could have been avoided without jeopardizing the reasonable safety of defendant and other people, by the use of the means and appliances at hand. Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821; Homan v. Railroad Co., 64 S.W.2d 617; Gray v. Columbia Terminals Co., 52 S.W.2d 809, 331 Mo. 73; State ex rel. Fleming v. Bland, 15 S.W.2d 798, 322 Mo. 565; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Alexander v. Ry. Co., 38 S.W.2d 1026, 327 Mo. 1012; Vowels v. Railroad Co., 8 S.W.2d 7, 320 Mo. 34. (d) Said instruction purports to cover the whole case and to direct a verdict for the plaintiff upon the basis of the facts contained therein, without requiring the finding of a fact necessary in order for the plaintiff to be entitled to recover against the defendant G. H. Wetterau & Sons Grocery Co., i. e., that defendant Waldbauer was in the employ of the defendant G. H. Wetterau & Sons Grocery Co., and was operating said car in the course of said employment at the time of the accident. State ex rel. Long v. Ellison, 199 S.W. 988; Macklin v. Fogel Const. Co., 31 S.W.2d 14, 326 Mo. 19; Heigold v. United Rys. Co., 271 S.W. 777, 308 Mo. 142; Hall v. Manufacturers Coal & Coke Co., 216 Mo. 368. (2) The court erred in giving plaintiff's Instruction 2, defining the degree of care defendant was required to exercise. Van Cleave v. Railroad Co., 124 Mo.App. 224; Houston Railroad v. Brown, 37 Tex. Civ. App. 595; Refke v. Paper Co., 136 Wis. 535; Ulmer v. Farnham, 28 S.W.2d 116. (3) The court erred in refusing defendant's Instruction J, which was the converse of plaintiff's last-chance doctrine instruction. Devitt v. Ry. Co., 50 Mo. 304; Northam v. United Rys. Co., 176 S.W. 229; Leonard v. United Rys. Co., 239 S.W. 894; Zimmer v. Daugherty, 32 S.W.2d 767; King v. Ry. Co., 211 Mo. 13. (4) The court erred in refusing defendant's Instruction 1, which told the jury, in effect, that if plaintiff's negligence in walking into the side of the car was the sole cause of the injury, then plaintiff could not recover. Schluetter v. Enterprise Comm. Corp., 34 S.W.2d 977; State ex rel. Dunklin v. McKay, 325 Mo. 1098, 30 S.W.2d 83. (5) The court erred in refusing to grant the instruction in the nature of a demurrer to the evidence submitted by defendant G. H. Wetterau & Sons Grocery Company, the evidence conclusively showing Waldbauer was not acting in the scope of his employment at the time of the collision. Clough v. Allen, 1 P.2d 545; Mauchle v. Panama Pacific International Exhibition Co., 174 P. 400, 37 Cal.App. 715; Keim v. Blackburn, 280 S.W. 1046; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854.

Jeffries, Simpson & Plummer for respondent.

(1) Plaintiff's Instruction 1 was properly given and read to the jury for the reasons listed below. (a) Said instruction sufficiently required a finding of facts that the negligence hypothesized therein was the cause of the injury. State ex rel. v. Ellison, 208 S.W. 444; Sutter v. Met. Ry. Co., 208 S.W. 852; Lackey v. United Rys. Co., 288 Mo. 146. (b) The instruction was not erroneous without including the words "obliviousness to peril" therein. Banks v. Morris & Co., 302 Mo. 268. (c) The instruction did not require defendant Waldbauer to avoid the collision only at the expense of injury or hazard to others. Dey v. United Rys. Co., 140 Mo.App. 467; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 27; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 62. (d) The instruction did not direct a verdict against defendant grocery company. (2) Competency is involved in the exercise of the highest degree of care in the operation of an automobile. 39 Harv. L. Rev., p. 867; Williams v. Hays, 143 N.Y. 442; 42 C. J. 897, sec. 602; Dauber v. Josephson, 209 Mo.App. 531; Ilges v. St. Louis Transit Co., 102 Mo.App. 535; Houston Railroad Co. v. Keeling, 112 S.W. 808, 51 Tex. Civ. App. 386; International & G. N. Railroad Co. v. Halloren, 53 Tex. 46; Louisville & N. Railroad Co. v. Kemp's Admr., 149 Ky. 344; Jordan v. Ry. Co., 47 Wash. 503. (3) Defendants' requested instructions I and J were properly refused. Schultz v. Smercina, 1 S.W.2d 113; Causey v. Wittig, 11 S.W.2d 15; Althage v. People's Motorbus Co., 8 S.W.2d 927; Schuetter v. Enterprise Com. Corp., 34 S.W.2d 977. (4) The demurrer of the defendant G. H. Wetterau & Sons Grocery Company to the evidence was properly overruled. Burgess v. Garvin & Price Merc. Co., 219 Mo.App. 162; Gordner v. St. Louis Screw Co., 201 Mo.App. 349; Margulis v. Natl. Enameling & Stamp Co., 23 S.W.2d 1049; Kaufman v. Baden Ice Cream Mfgs., Inc., 7 S.W.2d 300.

Westhues, C. All concur, Hays, J., concurring in result in separate opinion.

OPINION

WESTHUES

Respondent, as the widow of Louis Borgstede, obtained a judgment against appellants in the sum of $ 10,000 for the death of her husband caused by the alleged negligence of Waldbauer. From this judgment both defendants appealed.

The case was submitted to the jury under the humanitarian doctrine. Appellant, G. H. Wetterau & Sons Grocery Company, assigned as error the refusal of the trial court to give an instruction in the nature of a directed verdict. The reason assigned was that the evidence failed to show that appellant, Waldbauer, was, at the time of the accident, acting in the capacity of its servant. Waldbauer was employed by the grocery company as a salesman and collector of accounts. In making sales and collections he traveled in a Ford coupe. On August 14, 1930, he drove to the northern part of the city of St. Louis for the purpose of collecting an account. After making the call and at about eight o'clock P. M., he proceeded south on Grand Boulevard intending to go to his home on Leona Avenue in south St. Louis. As Waldbauer was driving into the intersection of Grand Boulevard and St. Louis Avenue the deceased, who was walking across the street in a westerly direction, came in contact with Waldbauer's car. Deceased died the following day as the result of the injuries received in the accident.

It is apparent from the facts enumerated, which were conceded at the trial, that Waldbauer was, at the time of the accident, acting within the scope of his employment. It was just as necessary for Waldbauer to return as it was for him to go to north St. Louis, as he had no business of his own there, but went in the interest of his employer. He was, therefore, about his master's business. A salesman must of necessity travel from place to place to perform his duties. It was shown that the company knew Waldbauer was using a car in making sales and collections. In 42 Corpus Juris, page 1128, section 900, we read:

"Where, with the express or implied assent of the employer, an employee uses a vehicle which the employee owns in the discharge of his duties, the employer will be liable for an injury occasioned by its negligent operation by the employee while acting within the scope of his employment." [See, also, Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S.W.2d 27.] A salesman, returning home from a journey on behalf of his master is acting within the scope of his agency. [Teague v. Laclede-Christy, 331 Mo. 147, 52 S.W.2d 880; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, l. c. 271 (13, 14).]

Respondent's evidence supports a finding that deceased started to cross Grand Boulevard from east to west along the northerly...