Bowles v. Eisenmayer

• Decision Date: 07 January 1930
• Docket Number: No. 21030.,21030.
• Parties: BOWLES v. EISENMAYER.
• Court: Missouri Court of Appeals

22 S.W.2d 884

BOWLES v. EISENMAYER.

No. 21030.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Fred Bowles against Arthur W. Eisenmayer, doing business as the Eisenmayer Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James F. Conran, of St. Louis, for appellant.

Paul H. Koenig and Kelley, Starke & Hassett, all of St. Louis, for respondent.

BENNICK, C.

This is an action growing out of the personal injuries and property damage alleged to have been sustained by plaintiff on January 20, 1928, when the wagon in which he was riding was struck by a five-ton Federal truck, owned by defendant, and operated at the time by one William Lewright, his agent and employee. The verdict of the jury was for plaintiff, and against defendant, in the sum of $2,000, and from the judgment rendered defendant has duly appealed.

The accident occurred near the intersection of Page boulevard and West End avenue, in the city of St. Louis. Plaintiff is a huckster by trade, and was driving his one-horse wagon eastwardly along Page boulevard, when defendant's driver, who had been operating his truck eastwardly in the rear of an east-bound street car, suddenly pulled to the right and attempted to pass between plaintiff's wagon and the street car. In so doing, he permitted some part of the truck to strike against the hub of the left front wagon wheel, as a result of which the wagon was tilted to the right, and pushed up against the horse, causing the horse to become frightened and run down the street for half a block, until he struck against a post and was caught by some one, who happened to be standing out upon the sidewalk.

In his petition plaintiff counted upon a violation of the humanitarian doctrine, as well as upon certain allegations of primary negligence, based upon failure to warn, excessive speed, and failure to keep a lookout. The answer of defendant was a general denial, coupled with a plea of contributory negligence, the specifications of which are now of unimportance, since there has been no attempt to raise the point on this appeal. The reply was in the conventional form.

For his first point defendant assails the action of the court in refusing his requested peremptory instruction in the nature of a demurrer to all the evidence, and in support of such assignment he argues that there was a total failure of proof of the cause of action pleaded. In the petition the allegation was that, "while plaintiff was riding on and driving his one-horse huckster wagon in an eastwardly direction and along the south side of said Page boulevard, * * * plaintiff's said wagon was * * * violently struck and collided with by a motortruck owned and controlled by defendant, and being driven and operated by defendant's agent and servant * * * in an eastwardly direction on and along said Page boulevard at said point, knocking and throwing plaintiff about on said wagon, overturning plaintiff's said wagon to the street, and as a direct result thereof plaintiff was seriously and permanently injured. * * *"

The argument which counsel has seen fit to make is that the proof showed a state of facts entirely unlike the constitutive facts pleaded, namely, that plaintiff's wagon was struck by defendant's truck, that the wagon was pushed onto the horse, that the horse ran to the curb, and that plaintiff remained in the wagon, and was jolted and hurt when the horse and wagon struck the curb. Such an argument does violence to the evidence in the case, in that plaintiff testified that his injuries were received at the moment of and as a result of the impact of the truck against the wagon; and it is with his personal injuries, and the loss of earnings occasioned thereby, that we are alone concerned, since none other of the pleaded elements of damage were submitted to the jury for their consideration.

But, if the point may be deemed worthy of serious discussion, we think it is clear that there was no failure of proof, as defined by section 1452, Rev. St. 1919; that is, a failure of the proof, "not in some particular or particulars only, but in its entire scope and meaning." At most, an allegation that the wagon was struck and overturned upon the street, supported by proof that it was not completely overturned, but instead was tilted over upon two wheels, and held in that position as the horse ran down the street, could rise to no greater consequence than to be termed a variance. Here, however, there is and could be no claim of variance, since the evidence came in without objection, and no affidavit of surprise was filed.

The gist of the charge of negligence was that defendant's driver, in attempting to pass between the street car and the wagon, struck the wagon and set in motion the chain of circumstances which produced the final consequences for which plaintiff has sued. Whether or not the wagon turned completely over from the force of the collision was not an essential allegation, and defendant was not and could not have been misled, by the appearance of such statement of fact in the petition, into believing that a recovery was in any wise predicated by plaintiff upon the fact that the wagon turned over, as distinguished from the basic fact that it was struck. We rule, therefore, that there was no failure of proof within the contemplation of the statute, and that defendant's point to the contrary must be wholly disallowed. Roberts v. Schaper Stores Co., 318 Mo. 1190, 3 S.W.(2d) 241; Bammert v. Kenefick (Mo. Sup.) 261 S. W. 78; Nyberg v. Wells (Mo. App.) 14 S.W.(2d) 529; Underwood v. Hall (Mo. App.) 3 S.W.(2d) 1044; Swift v. St. Louis-S. F. Ry. Co. (Mo. App.) 15 S.W.(2d) 964; Lynch v. Western Union Telegraph Co. (Mo. App.) 18 S.W.(2d) 535; Detchemendy v. Wells (Mo. App.) 253 S. W. 150.

As an added reason why no case was made for the jury, defendant argues in a somewhat similar vein that plaintiff bottomed his case upon the driver's alleged failure to have exercised the highest degree of care; that the negligence thus pleaded was statutory negligence in connection with the operation of a motor vehicle; that the proof showed only that defendant's vehicle was a truck, and not that it was a motor vehicle; and that,...