Cento v. American Fruit Growers

• Decision Date: 05 June 1928
• Docket Number: No. 20131.,20131.
• Citation: 7 S.W.2d 304
• Parties: CENTO v. AMERICAN FRUIT GROWERS, Inc.
• Court: Missouri Court of Appeals

7 S.W.2d 304

CENTO v. AMERICAN FRUIT GROWERS, Inc.

No. 20131.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Rehearing Denied June 21, 1928.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by Peter Cento against American Fruit Growers, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

S. P. McChesney and John F. Evans, both of St. Louis, for appellant.

Laughlin, Frumberg, Blodgett & Russell, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. Plaintiff was in the employ of defendant at the time he received the injuries for which he sues. He was injured while riding in an automobile driven by defendant's servant Fred Mueller. Defendant was engaged in buying and selling fruits and vegetables as jobbers. Its office and place of business was located at Third and Carr streets, in the city of St. Louis. Plaintiff was a salesman, buyer, and inspector for defendant. Fred Mueller was an assistant salesman. The defendant kept a Ford automobile, which was used for conveying its salesmen, buyers, and inspectors to different parts of the city, where they were required to go in the performance of their work. Mueller, in addition to his duties as salesman, sometimes made inspections.

According to the evidence for plaintiff, on May 5, 1922, defendant's manager directed plaintiff to go to the Wabash Railroad tracks on North Market street and inspect a carload of apples. Plaintiff asked the manager, "How am I going up there?" To this the manager replied, "I will get Fred Mueller to drive you up there." Plaintiff then said, "I don't like to ride with that fellow much any more." To this the manager replied, "Well, I have nobody else around here to take you up there." Thereupon, pursuant to the direction of the manager, Mueller undertook to drive plaintiff in the Ford automobile to his destination on North Market street. As they proceeded north on Broadway, plaintiff remonstrated with Mueller, without avail, for driving the car too fast. As the automobile approached the intersection of Broadway and Chambers street, running at a speed of 30 to 35 miles per hour, and was within about 20 feet of the intersection, a truck approaching the intersection from the north on Broadway made a left turn to go east into Chambers street. Thereupon Mueller undertook to turn his automobile to the right into Chambers street to avoid a collision with the truck. In so doing, the automobile in which plaintiff was riding was overturned, and the plaintiff thereby sustained the injuries for which he sues.

The evidence shows that Mueller was a negligent driver, in that he habitually drove at an excessive rate of speed, and that this was known to both the plaintiff and the defendant's manager at the time the manager directed plaintiff to ride in the automobile with said Mueller on the occasion of his injury, and for a long time prior thereto. Plaintiff testified that he had, previous to the occasion of his injury, ridden in the automobile with Mueller as the driver fifty to a hundred times, and that, though he regarded Mueller as a negligent driver, no accidents had occurred on such previous occasions. Plaintiff was not an automobile driver. He was without any experience in driving an automobile.

The petition charges: That on the 5th day of May, 1922, and for a long time prior thereto, plaintiff was in the employment of the defendant in the capacity of a salesman, buyer, and inspector of the fruit and other merchandise purchased or sold by said defendant, and that it was his duty under such employment to go from place to place, as directed by his employer, and to perform any and all duties which said defendant might direct. That on the 5th day of May, 1922, plaintiff was directed by said defendant to examine and inspect a carload of apples then on the Wabash tracks at North Market street, in the city of St. Louis, and, for the purpose of being taken to said point, the defendant instructed Fred Mueller to drive the plaintiff to the above-mentioned locality in one of the automobiles of the defendant. That thereupon said Mueller, in pursuance of said instruction from the defendant, undertook to carry the plaintiff to said North Market street and Wabash tracks. That said Mueller had no duties to perform in relation to the examination or inspection of said carload of fruit, nor any other service or duty jointly with the plaintiff, and that the plaintiff had no duty to perform in the driving or operation of said automobile jointly with said Mueller, and had no right of control or direction over said Mueller in the control and operation of said automobile, but that said Mueller was the servant and agent of the defendant, engaged within the scope of his employment in the driving of said automobile. That, while plaintiff was an occupant of said automobile and while the same was being driven northward on Broadway, a public street in the city of St. Louis, by the said Mueller, said Mueller, as the agent and servant of the defendant, upon reaching Chambers street, a public street of the city of St. Louis, intersecting said Broadway, at a high, dangerous, and excessive rate of speed, in excess of 30 miles per hour, and without slowing down, attempted to turn said automobile eastwardly into Chambers street, and, by reason of said excessive speed and the negligence of said Mueller in turning said automobile into said Chambers street, caused the same to be overturned, and plaintiff was thrown from said automobile and caught and pinioned under the same and was thereby injured as follows, to wit: That he received a cerebrospinal concussion, sprain of the left knee with tearing of the internal ligaments and contusions of the semilunar cartilage, contusion and severe compression of the left chest wall and tearing of the pleura, and a great multitude of contusions and abrasions over his entire body, from all of which plaintiff has suffered and still continues to suffer great pain of body and anguish of mind, and is permanently crippled and disabled. That, by reason of the injury to plaintiff's left knee, the same has become and remained inflamed, and the muscles, tendons, and ligaments thereof atrophied, and that the plaintiff has been and is unable to use the same without the aid of crutches, and that he will suffer permanently from lameness on account thereof. That all of his injuries hereinabove set forth were directly caused by the negligence and carelessness of the defendant in keeping and retaining in its employ the said Mueller, and using and employing said Mueller to drive its said automobile at the time and place hereinabove stated, in this, that the said Mueller was at said time, and long had been, careless and negligent in the operation of said automobile, and was accustomed to driving the same at an excessive and dangerous rate of speed...