Dixon v. Boeving

• Citation: 208 S.W. 279
• Decision Date: 18 January 1919
• Docket Number: No. 2315.,2315.
• Parties: DIXON v. BOEVING.
• Court: Court of Appeal of Missouri (US)

208 S.W. 279

DIXON v. BOEVING.

No. 2315.

Springfield Court of Appeals. Missouri.

January 18, 1919.

Appeal from Circuit Court, Butler County; John A. Gloriod, Special Judge.

Action by Robert Dixon against Hugo Boeving. From a judgment for plaintiff, defendant appeals. Affirmed, on condition that plaintiff enter remittitur; otherwise, certified to the Supreme Court.

Hill & Phillips, of Poplar Bluff, for appellant.

Sheppard & Sheppard, of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment against the defendant on account of injury to himself and to his automobile, occasioned by a collision between the car he was driving and one driven by the defendant. In the petition he sought damages on account of personal injuries to himself, damages for injury to his automobile, and damages for loss occasioned to his taxicab business.

The defendant set forth a number of defenses in his answer, going largely to general denials, pleas of contributory negligence, and a special defense that the plaintiff had purchased his Ford car, and that the vendor thereof had failed to comply with section 4, chapter 83, of the statutes of Missouri as enacted by the Legislature of the state of Missouri in 1911, and as shown by the Session Acts of 1911, page 324 in that the vendor failed to give notice of the sale to the plaintiff of said automobile, and the name and residence of the plaintiff, and that the plaintiff had failed to give fie notice required, and that he had wholly failed to comply with section 11, chapter 83, of the statutes of Missouri as enacted by the Legislature of the state of Missouri in the year 1911, as shown by Session Acts of 1911, pages 327, 328, in that he had wholly failed to procure a chauffeur's license, and charges that by failing to do so the plaintiff was unlawfully operating a car on a public highway in Butler county, Mo., and pleads said failure as a bar to plaintiff's action.

The case was tried by the court and jury, the jury returning a verdict of $400 for personal injuries, $240 for injury to plaintiff's car, and $160 for loss of his taxicab business. It is concerning this judgment that the appellant complains.

At the outset, we are confronted with the question, raised by the respondent, that there is no properly signed bill of exceptions in this case, and therefore there is nothing for this court to consider, except the record proper; the point being that the case was tried before a judge elected to hold a special term of court in Butler county, Mo., and that he had signed the bill of exceptions instead of the regular judge, who was occupying the position of circuit judge at the time the special judge signed the bill of exceptions, which was long after he had ceased acting as special judge and in vacation of court. Respondent cites the case of Berry et al. v. Leslie, 131 Mo. App. 236, 110 S. W. 685. As this same question has been raised in several cases tried at that term of the Butler county circuit court, and an opinion has been written involving the same question by Sturgis, P. J., in the case of Lambert v. Lambert, 208 S. W. 118, handed dawn with this opinion, we will overrule respondent's contention in this respect, for the reasons stated in the case above mentioned, and we will review the full record, including the transcript of the evidence and bill of exceptions which are presented.

The facts of the catastrophe are about as follows: The plaintiff had purchased a Ford car several days prior to the Butler County Fair, held at Poplar Bluff, Mo., and was operating this car as a taxi between the business part of town and the fair grounds, which are situated about a mile a ad a half south of the business part of Poplar Bluff. He had been operating this car one Or two days only. On the afternoon of the injury, about 4:30, in broad daylight, he was proceeding south along the public highway to the fair grounds, on the right-hand side of the road, in a well-beaten track, which had been made and followed by vehicles going south toward the fair grounds. The evidence shows that the plaintiff was at floe proper place in the road, and was operating his car at a reasonable rate of speed. On the plaintiff's left hand there was a well-beaten track, which the automobiles coining from the fair grounds to town had made and followed. Several automobiles were coming north toward town. The roads were very dusty, so that, according to the evidence, it was hard to see more than 30 feet in front of the cars being operated that caused this collision. The defendant was in a car following the two Ford cars going north, and undertook to pass in front of the first of the cars preceding him, turning his car to the left, over into the track on defendant's left-hand side, which beaten track the plaintiff was going south on. The result was that the two cars collided, and damage and injury resulted.

The proof is that the plaintiff's car was traveling south something like miles an hour, and defendant's car was following the Ford cars, which were running something like 15 or 20 miles an hour, and defendant was turning out to go around these cars. In...