Chiles v. Metropolitan Life Ins. Co.
| Decision Date | 27 January 1936 |
| Citation | 91 S.W.2d 164,230 Mo.App. 350 |
| Parties | BERNICE CHILES, RESPONDENT, v. METROPOLITAN LIFE INSURANCE CO., A CORP., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circut Court of Jackson County.--Hon. Darius A. Brown Judge.
AFFIRMED.
Judgment affirmed.
I. Frank Rope and Frank E. Reinhardt for respondent.
Mosman Rogers, Bell & Buzard and Lewis N. Wolfe for appellant.
--In this action the respondent, hereinafter referred to as plaintiff, sues appellant, hereinafter referred to as defendant, for damages alleged to have been inflicted upon her in an automobile collision at the intersection of Troost Avenue and 13th Streets in Kansas City, Missouri.
The incident and the allegations of negligence are alleged in plaintiff's petition as follows:
"Plaintiff further states that on or about December 9, 1932, at or about 5:30 o'clock P. M., while she was driving her Ford automobile east on and over 13th Street and while attempting to cross the intersection of Troost Avenue, the defendant, The Metropolitan Life Insurance Company, by and through its agent, servant and employee, L. J. Filler, so carelessly, recklessly and unlawfully drove and operated or caused to be driven and operated a certain Willys sedan north upon said Troost Avenue at said intersection, as hereinafter more specifically set forth, so as to cause said Willys sedan automobile to come into violent contact and collision with the right rear portion of plaintiff's Ford automobile so as to cause said Ford automobile of the plaintiff to be crushed, broken and damaged and caused the plaintiff herein to sustain the severe, painful and permanent injuries hereinafter more specifically set forth."
The plaintiff in her petition specifically pled ordinances of Kansas City, Missouri, in addition to the general law controlling traffic on streets and highways and street intersections. The ordinances pled required vehicles to be driven with care and provides penalty for careless, heedless, willful and wanton driving in disregard to the rights and safety of others.
As to intersections, after reaching within fifty feet, the ordinance provides as follows:
After setting forth of above allegations and ordinances, the plaintiff's petition states that:
"The defendant carelessly and negligently and unlawfully failed and neglected to do, and drove and operated said automobile in a careless, negligent and reckless manner and at a rate of speed of 45 miles per hour, and carelessly and negligently and in violation of law approached and crossed said intersection at said time at said unlawful rate of speed and carelessly and negligently and in violation of the law failed to yield to plaintiff the right of way and the right to proceed across said intersection although said defendant saw that plaintiff had entered and was almost across said intersection before said defendant had entered same and drove and operated the said automobile upon said street in willful disregard of the rights and safety of the plaintiff and without due caution and circumspection and as a result of said careless and negligent acts and each of them on the part of the defendant, and as a result of the violation of said city ordinance and the laws of the State of Missouri by said defendants, said automobile of the defendants was caused to come into violent contact with and run into and against the automobile of the plaintiff and the plaintiff herein with great force and violence, causing plaintiff to be thrown about and against the machinery and appliances of said automobile and causing her to sustain the severe and painful injuries and damages to her said automobile as hereinafter more specifically set forth."
Plaintiff alleges her injuries as deep cut on scalp and on face over left eye, injury to her back and right arm, muscles, nerves, cords, and tendons and alleges bruises and concussion of brain and lays damages at $ 7500.
Defendant's answer was a general denial. Trial was by jury and resulted in a verdict for the plaintiff in the sum of $ 1000. Judgment was entered in accordance with the verdict and defendant has appealed.
The defendant makes two assignments of error as follows:
OPINION.It appears that L. J. Filler was a co-defendant herein and that judgment was also had as against said Filler. However, Filler has not appealed.
The plaintiff in this case, by her testimony, presented an issue of fact as to allegations of negligence of defendant Filler. However, as to the defendant, appellant herein, the question as to whether or not the negligent acts of said Filler can be attributed to the appealing defendant is material to the issue before us.
As all competent evidence that is most favorable to the plaintiff must be considered and given effect in determining the issue presented by defendant's first specification, we proceed first to a determination of defendant's second point.
The testimony objected to was a conversation had between the plaintiff and the co-defendant Filler that is purported to have occurred shortly after the accident and at or near the scene of the accident.
The plaintiff was the first witness called and, upon being asked to detail the happenings at the time and immediately after the accident, objection was made to any conversation between defendant Filler and plaintiff. The objection was stated as follows:
"MR. MOSMAN: I object to that, if the court please, as neither competent, relevant nor material and not binding on the defendant, Metropolitan Life Insurance Company; no showing he was empowered to make any statements or admissions for the defendant."
The above objection was sustained by the court. Thereafter, Harry Wood, branch manager of the appealing defendant, was called as a witness for plaintiff. In the examination of Mr. Wood the following questions and answers appear:
In regard to a car used by defendant Filler, the following questions and answers occur:
After Mr. Wood had testified the plaintiff was recalled as a witness and the following proceeding is shown:
Thereafter, the plaintiff made an offer and after consideration the court ruled that plaintiff could testify as to the conversation and the following as shown by the record:
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