Bright v. Thacher
| Decision Date | 04 November 1919 |
| Citation | 215 S.W. 788,202 Mo.App. 301 |
| Parties | ESTHER J. BRIGHT, Administratrix of the Estate of CHARLES W. BRIGHT, Deceased, Respondent, v. THEODORA THACHER and ARTHUR THACHER, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Leo S Rassieur, Judge.
REVERSED AS TO ARTHUR THATCHER.
AFFIRMED AS TO THEODORA THATCHER.
Judgment reversed as to Arthur Thacher. Judgment affirmed as to Theodora Thacher.
Jones Hocker, Sullivan & Angert, Earnest A. Green and Bryan Williams & Cave, for appellants.
(1) The court erred in refusing to give the peremptory instruction asked by the defendant, Arthur Thacher, at the close of the plaintiff's case, and also at the close of all the evidence. The mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person injured through the negligence of his daughter while operating the same in furtherance of her own pleasure; and the fact that she had the father's special or general permission to so use the car is wholly immaterial. Hays v. Hogan et al., 200 S.W. 286, and cases cited; Bolmon v. Bullene, 200 S.W. 1068; Mast v. Hirsh, 202 S.W. 275; Guthrie v. Holmes, 198 S.W. 854; Doran v. Thomsen, 76 N. J. Law 754; 71 A. 296, 19 L. R. A. (N. S.) 335; 131 Am. St. Rep. 677. (2) Plaintiff's petition wholly fails to state a cause of action against either defendant. In order for an administrator to maintain an action under this section, the petition must show the names, relationship and ages of the respective beneficiaries for whom he sues, and their respective pecuniary losses. Further, the petition does not aver that it was filed within the statutory period. Johnson v. Mining Co., 171 Mo.App. 134; Smelser v. Railroad, 262 Mo. 41; Troll v. Gas Light Co., 182 Mo.App. 600; Railroad v. Daugherty's Admr., 155 S.W. 1119; Rich v. Railroad, 148 S.W. 1011; Railroad v. McGinnis, 228 U.S. 173; Barker v. Railroad Co., 91 Mo. 86; Chandler v. Railroad, 251 Mo. 592. (3) The trial court erred in refusing to permit the defendants to show, by competent evidence offered by them, that the mother of the intestate had come into possession of twelve thousand dollars through accident insurance upon the deceased's life and that she, therefore, did not sustain any necessary pecuniary loss or injury by his death. Hicks v. Newport, Etc., Ry. Co., 4 Best & S. 401. (4) The court erred in refusing to give to the jury instructions lettered C and E requested by the defendants. These instructions correctly declare the law with reference to the care required of an automobile driver under the circumstances of such an emergency. Railroad Co. v. Eganolf, 112 Ill.App. 323; Stewart v. Railway Co., 85; A. 745; Floyd v. Philadelphia, etc., Ry. Co., 162 Pa. 29; Phillips v. People's Passenger R. R. Co., 190 Pa. 222; Gunz v. C., St. P. & Milwaukee R. R. Co., 52 Wis. 672; Davidson v. Frisco, 164 Mo.App. 701; Bryan v. Wabash, 141 S.W. 926. (5) The court erred in refusing to give to the jury defendants' instruction lettered "D." If the mother of the intestate sustained no pecuniary loss, the plaintiff was not entitled to recover in this action, and this instruction properly so declared. Hicks v. Newport, etc., Ry. Co., 4 Best & S. 401. (6) The trial court improperly refused to give to the jury instruction lettered "H" asked by the defendants. Under the pleading in this case the plaintiff at most could recover only nominal damages. Smelser v. Railroad, 262 Mo. 41; Bagley, Admr. v. St. Louis, 268 Mo. 264. (7) The trial court erred in giving to the jury instruction number 1 requested by the plaintiff. In the first place it erroneously declares the law with reference to the liability of the defendant, Arthur Thacher, under the evidence herein; and, secondly, it attempts to cover the whole case and authorizes a verdict for the plaintiff without requiring a finding on the part of the jury that the plaintiff was damaged as a result of the death of Charles W. Bright. Authorities cited under point 1, supra; Authorities cited under point 2, supra; Fullerton v. Fordyce, 121 Mo. 13; Hall v. Railroad, 74 Mo. 302; Barr v. Armstong, 56 Mo. 589; Caldwell v. Stephens, 57 Mo. 595; Glover v. Railroad, 129 Mo.App. 575. (8) (a) Plaintiff's instruction number two is erroneous; it declares the law of agency absolutely in conflict with the decisions of our Supreme Court. Authorities cited under point 1, supra. Plaintiff's instruction number 3 does not correctly declare the measure of damages in this case. McGowan v. St. Louis Ore & Steel Co. 109 Mo. 518; Calcaterra v. Iovaldi, 123 Mo.App. 354. (b) Instruction No. 3 also assumes that there was a necessary pecuniary injury resulting to the mother from the death of the son and authorizes the jury to assess damages without finding from the evidence that there was really such pecuniary injury. (10) The damages recovered by the plaintiff are grossly excessive, since there was no evidence of any such pecuniary loss on the part of the plaintiff. Bagley, Admr. v. St. Louis, 268 Mo. 264.
Charles A. Houts for respondent.
(1) Where the jury expressly passed upon the question of fact as to whether or not the daughter was acting as the agent of the father, this being one of the issues presented to them in proper form, the verdict and judgment should stand. Denison v. McNorton, 228 Federal 401 and cases there cited; McNeal v. McKain, 41 L. R. A. (N. S.) 775 and case note; Winfred v. Lazarus, 148 Mo.App. 388; Dailey v. Maxwell, 152 Mo.App. 422; Marshall v. Taylor, 168 Mo.App. 240; Birch v. Abererombre, 74 Washington, 486, 50 L. R. A. (N. S.) 59, (2) As to the second point, the petition properly set forth the facts required by the statutes as above recited charging expressly pecuniary loss to the mother and brothers of deceased. Testimony was offered by the plaintiff showing the relationship and the facts in connection with the dependency and the pecuniary loss, and defendants introduced testimony with reference to the probable expectancy of life for the purpose of minimizing, if possible, the amount of such pecuniary loss. The court and jury, therefore, by proper pleading and evidence, had before them the facts in connection with the actual pecuniary loss resultant from the death of the deceased, and were enabled thereby to assess the damages allowed by the statute, which was such amount as they deemed "fair and just with reference to the necessary injury resulting from such death," etc. (Sec. 5426 and 5427, R. S. 1909.)
This is an action seeking to recover damages for the death of one Charles W. Bright, alleged to have been caused by the negligent handling of an automobile owned by the defendant, Arthur Thacher, while the machine was being driven by his daughter, Theodora Thacher, also a defendant, said accident having occurred on July 13, 1915, at the intersection of Kingshighway and Washington avenue, in the City of St. Louis, Missouri.
In the petition, which was filed on the 15th day of September, 1915, the negligence assigned on the part of the defendants is that the defendant, Theodora Thacher, operated the automobile at a "high and dangerous rate of speed when she knew, or by the exercise of ordinary care would have known, that a number of pedestrians, including the said Charles W. Bright, were in the act of crossing Washington avenue on the west side of Kingshighway, immediately in the path of the said automobile, and that the said Theodora Thacher negligently failed to give any warning of the approach of the said automobile; that she saw the said Charles W. Bright in said street in time to have stopped said machine by the exercise of ordinary care without striking the said Bright, and that she negligently and carelessly failed to stop said machine, but on the contrary negligently and carelessly continued to operate said machine at said high and dangerous rate of speed when she knew or by the exercise of reasonable care would and should have known, that she would strike and injury the deceased."
The petition alleges that the defendant, Theodora Thacher, is the daughter of the defendant, Arthur Thacher, and that at the time of the accident she resided with him as a member of his household; that she was operating the said automobile, on the said occasion with his consent, direction and permission, and as his agent, and in the performance of her duties as such agent.
The petition further alleges that the plaintiff is the mother of the deceased, Charles W. Bright, and that for many years prior to his decease, "plaintiff was dependent upon the said Charles W. Bright for her support, and that he contributed thereto;" that the deceased left no father, wife, or children surviving him; that the said plaintiff, Esther J. Bright, together with J. D. Bright, G. W. Bright and Oliver Bright, brothers, were, at the time of the death of the said Charles W. Bright, next of kin and heirs at law; and that plaintiff was duly appointed, qualified and acting administratrix of the estate of the deceased.
The petition further alleges that the plaintiff and the other heirs at law of the deceased have been damaged by his death in the sum of $ 10,000, for which sum judgment is prayed.
The defendants filed separate answers. That of the defendant, Arthur Thacher, contains a general denial and a plea of contributory negligence on the part of the deceased; while in the answer of the defendant, Theodora Thacher, it is set out that the accident was unavoidable and also alleges contributory negligence on the part of the deceased.
The case was tried to a jury, resulting in a verdict in favor of the plaintiff and against both...
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