Charlton v. Lovelace

• Decision Date: 06 July 1943
• Docket Number: 38480
• Citation: 173 S.W.2d 13,351 Mo. 364
• Parties: Patricia L. Charlton, by Mrs. O. R. Charlton, her next friend, Appellant, v. L. G. Lovelace and General Foods Sales Company, Inc., a Corporation
• Court: Missouri Supreme Court

173 S.W.2d 13

351 Mo. 364

Patricia L. Charlton, by Mrs. O. R. Charlton, her next friend, Appellant, v. L. G. Lovelace and General Foods Sales Company, Inc., a Corporation

No. 38480

Supreme Court of Missouri

July 6, 1943

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Spencer & McPherson and Kelsey Norman for appellant.

The plaintiff's evidence to the effect that plaintiff's deceased father was a passenger in a motorboat owned and under the sole control of defendant, Lovelace, in his capacity as agent and general division manager for defendant company; that plaintiff's deceased father was required as incident to his employment with defendant company to become a passenger in the said motorboat and that while thus a passenger the motorboat capsized and sank as a result of which plaintiff's deceased father drowned; and that at the time of the accident the lake was full of water, there was only a mild southwest wind, low waves on the lake and it was a moonlight night, such evidence, together with expert testimony offered by plaintiff and excluded by the court to the effect that under such conditions such a motorboat does not normally capsize and sink if handled with due care, was sufficient to take plaintiff's case to a jury, being a typical case for the application of the doctrine of res ipsa loquitur. McCloskey v. Koplar, 46 S.W.2d 557, 329 Mo. 527; Harke v. Haase, 75 S.W.2d 1001, 335 Mo 1104; Tabler v. Perry, 85 S.W.2d 471, 337 Mo. 154; Vesper v. Ashton, 118 S.W.2d 84, 233 Mo.App. 204; Adams v. LeBow, 160 S.W.2d 826; Kuether v Kansas City L. & P. Co., 276 S.W. 105, 220 Mo.App. 452; Gallagher v. Edison Illuminating Co., 72 Mo.App. 576; Mayes v. Kansas City P. & L. Co., 248 P. 599; Gibbons v. Wells, 293 S.W. 89; Gannon v. Laclede Gas Light Co., 46 S.W. 968, 47 S.W. 907, 145 Mo. 502, 43 L. R. A. 505; Dolan v. Sain, 46 S.W. 1133, 145 Mo. 550; Brown v. Consolidated L., P. & Ice Co., 109 S.W. 1032, 137 Mo.App. 718; Gibbs v. Poplar Bluff L. & P. Co., 125 S.W. 340, 142 Mo.App. 19; Booker v. Southwest Mo. Ry. Co., 128 S.W. 1012, 144 Mo.App. 273; Sprinkles v. Missouri Public Utilities Co., 183 S.W. 1072; Joyce v. M. & K. Tel. Co., 211 S.W. 900; Grady v. Louisiana L., P. & Traction Co., 253 S.W. 202; Glasco Elec. Co. v. Union Electric L. & P. Co., 61 S.W.2d 955, 332 Mo. 1079; Sipple v. Laclede Gas Light Co., 102 S.W. 608, 125 Mo.App. 81; Dowell v. Guthrie, 12 S.W. 900, 99 Mo. 953; Stolle v. Anheuser-Busch, 271 S.W. 497, 307 Mo. 520; Gordon v. Muehler Packing Co., 40 S.W.2d 693, 328 Mo. 123; Price v. Metropolitan Street Ry. Co., 119 S.W. 932, 220 Mo. 435; Norris v. St. Louis, I. M. & S. Ry. Co., 144 S.W. 783, 239 Mo. 695; Partello v. Mo. Pac. Ry. Co., 145 S.W. 55, 240 Mo. 122; McCardle v. George B. Peck Dry Goods Co., 195 S.W. 1034, 271 Mo. 111; Orcutt v. Century Building Co., 112 S.W. 533, 214 Mo. 35; Cooper v. Century Realty Co., 123 S.W. 848, 224 Mo. 709; Thompson v. Kansas City Pub. Serv. Co., 114 S.W.2d 145; Zimmerman v. Kansas City Pub. Serv. Co., 41 S.W.2d 579, 226 Mo.App. 369; Riecke v. Brewing Assn., 206 Mo.App. 246, 227 S.W. 631; Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17; Hartnett v. May Department Stores, 85 S.W.2d 644, 231 Mo.App. 1116; Paul v. St. Louis Pub. Serv. Co., 46 S.W.2d 910; Dougherty v. Mo. Pac. R. Co., 9 Mo.App. 478, 81 Mo. 325, 51 Am. Rep. 239; Redman v. Metropolitan Street Ry. Co., 84 S.W. 26, 185 Mo. 1; Brisco v. Metropolitan Ry. Co., 120 S.W. 1162, 222 Mo. 104; Grimm v. Globe Printing Co., 232 S.W. 676; Bell v. Central Electric Ry. Co., 103 S.W. 144, 125 Mo.App. 660; Todd v. Mo. Pac. R. Co., 105 S.W. 671, 126 Mo.App. 684; Maier v. Metropolitan Street Ry. Co., 162 S.W. 1041, 176 Mo.App. 29; Allen v. Dunham, 175 S.W. 135, 188 Mo.App. 193; Rhodes v. Mo. Pac. R. Co., 225 S.W. 1084, 213 Mo.App. 515; Magrane v. St. Louis & S. R. W. Co., 81 S.W. 1158, 183 Mo. 119; Clark v. Chicago & A. R. Co., 29 S.W. 113, 127 Mo. 197; Olson v. Citizens Ry. Co., 54 S.W. 470, 152 Mo. 426; Kinchlow v. Kansas City, K. V. & W. Ry. Co., 264 S.W. 416; Scheipers v. Mo. Pac. R. Co., 298 S.W. 51; Furnish v. Mo. Pac. R. Co., 13 S.W. 1044, 102 Mo. 438; Hipsley v. Kansas City, St. Joseph & C. B. R. Co., 88 Mo. 348; Logan v. Metropolitan Street Ry. Co., 82 S.W. 126, 183 Mo. 582; O'Gara v. St. Louis Transit Co., 103 S.W. 54, 204 Mo. 724; McDonald v. Metropolitan Street Ry. Co., 118 S.W. 79, 219 Mo. 468; Powell v. Union Pac. Ry. Co., 164 S.W. 628, 255 Mo. 420; Craig v. United Rys. Co. of St. Louis, 185 S.W. 205; Trowbridge v. Fleming, 268 S.W. 610; Smith v. Creve-Coeur Drayage & Motor Bus Co., 296 S.W. 547; Carlson v. Kansas City, C. C. & St. J. Auto T. Co., 282 S.W. 1037; Freeman v. Foreman, 125 S.W. 524, 141 Mo.App. 539; Evans v. Missouri Pac. Ry. Co., 116 S.W.2d 8; Estes v. Estes, 127 S.W.2d 73; Herbst v. Levy, 279 Ill.App. 353; Slack v. Harris, 200 Ill. 96; Burns v. United Railroad Co. of St. Louis, 158 S.W. 394, 176 Mo.App. 330; Delaware & H. Co. v. Dix, 188 F. 901; Noce v. The Frisco Ry. Co., 85 S.W.2d 637; Meade v. Missouri Water & Steam Supply Co., 300 S.W. 515; Clarke v. Cardinal Stage Lines, 31 P.2d 1; Kenney v. Antonetti, 211 Cal. 336, 295 P. 341; Chaisson v. Williams, 130 Me. 431, 156 A. 154, 157.

Roy Coyne for General Foods Sales Company, Inc.; McReynolds & Flanigan and John H. Flanigan, Jr., for L. G. Lovelace, respondents.

(1) Appellant's petition did not state a cause of action. The doctrine res ipsa loquitur has no application in a case of this kind. Herbst v. Levy, 279 Ill.App. 353; Benedick v. Potts, 88 Md. 52, 41 L. R. A. 478; Pointer v. Mountain Ry. Construction Co., 189 S.W. 805; McGrath v. St. Louis Transit Co., 197 Mo. 97. (2) The trial court properly sustained respondents' demurrer to the evidence since appellant wholly failed to make a submissible case for the jury. McCloskey v. Koplar, 46 S.W.2d 557; 45 C. J. 1333, sec. 904; Herbst v. Levy, 279 Ill.App. 353; 45 C. J. 1206, sec. 774; McGrath v. St. Louis Transit Co., 197 Mo. 97; Benedick v. Potts, 88 Md. 52, 41 L. R. A. 478; Pointer v. Mountain Ry. Construction Co., 189 S.W. 805; 45 C. J., pp. 1200, 1211, secs. 771, 778.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for wrongful death of plaintiff's father by defendants' negligence. At the close of plaintiff's evidence the court directed a verdict for defendants, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. The court refused to set the nonsuit aside on motion, and plaintiff has appealed.

Plaintiff's father O. R. Charlton (hereinafter referred to as deceased) was employed by the General Foods Sales Company, Inc., as district representative or sales manager, at Joplin, Missouri. Defendant Lovelace was his immediate superior. The company had frequent meetings of its salesmen, and some of these meetings were held at the Lake of the Ozarks. On the occasion in question a meeting was held at that place by direction of Mr. Lovelace, and deceased had been directed by Mr. Lovelace to attend. All expenses were borne by the defendant company. Mr. Lovelace had a cabin about four miles up the lake from Lou's Dock on the Lake of the Ozarks, where the meetings were held, and he, also, owned and operated a pleasure boat, referred to as a Dodge factory built indoor motorboat, with a top speed of around 32 miles an hour.

Sometime in the afternoon of June 20, 1940, Mr. Lovelace, deceased, and some seven or eight other persons, came to Lou's Dock (a place operated by one Lou Ernst) and, about 4:30 or 5 o'clock in the afternoon, Mr. Lovelace and his party left Lou's Dock in Lovelace's boat to go up to Lovelace's cabin for dinner. Later that evening between 8:30 and 9:30 a. m., they returned to Lou's Dock and stayed until 1 a. m., the following morning, June 21, 1940, when they again left in Mr. Lovelace's boat. Their intended destination at that time does not expressly appear, but Mr. Ernst saw them leave and Mr. Lovelace was in the front seat, operating the boat, and deceased was in the rear seat.

Sometime later that night, how much later does not appear from the evidence, except as might be inferred from the fact that Mr. Ernst had been in bed 20 or 30 minutes (but how soon he retired after the party left does not appear), he heard a motorboat come to his dock, and a Mr. Reno, who owned the "adjoining place," called him. Mr. Ernst and one of his employees got up, went out and got in the boat with Mr. Reno and went up the lake, "hunting a boat that was upset or something had happened." It was a moonlight night and the lake was practically at full reservoir. "There was a southwest wind; not a high one; just low waves; it wasn't really rough." They found a Mr. Lee Saffington "floating" in the water. He was one of the men who had been in the Lovelace boat, with Mr. Lovelace and deceased, when it left Lou's Dock at 1 a. m. "He had a cushion and back out of one of the seats in this (Lovelace's) boat." Search was made for the Lovelace boat that night and later, but it was never found. What had happened to the other occupants of the Lovelace boat appears only by inference. Deceased's body was recovered ("gotten up") the next day. Where it was found, with reference to where Mr. Saffington was found, or what had happened to him, does not expressly appear, but there was evidence that deceased's widow was advised that her husband had drowned.

Mr. Ernst, a witness for plaintiff, saw Mr. Lovelace and certain other occupants of the Lovelace boat at a coroner's inquest held the next day. Mr. Ernst testified: "Q. Did you hear him (Mr. Lovelace) say then or at any time subsequent to that time that when the boat turned over he was driving it? . . . Ans. Yes, sir."

This was all of the evidence in the record, which in any manner tended to show how,...