Donet v. Prudential Ins. Co. of America

• Decision Date: 04 February 1930
• Docket Number: No. 20941.,20941.
• Citation: 23 S.W.2d 1104
• Parties: DONET v. PRUDENTIAL INS. CO. OF AMERICA et al.
• Court: Missouri Court of Appeals

23 S.W.2d 1104

DONET v. PRUDENTIAL INS. CO. OF AMERICA et al.

No. 20941.

St. Louis Court of Appeals. Missouri.

February 4, 1930.

Rehearing Denied February 19, 1930.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Noel Donet against the Prudential Insurance Company of America and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Douglas H. Jones, of St. Louis, for appellant.

Fordyce, Holliday & White, of St. Louis, for respondent Insurance Company.

BENNICK, C.

This is an action to recover for the personal injuries and property damage sustained by plaintiff in an automobile collision at the intersection of Natural Bridge road and Fair avenue, in the city of St. Louis, on May 7, 1928. The defendants were the Prudential Insurance Company, and Eugene C. Struckhoff, its assistant superintendent, who was the driver of the automobile which figured in the collision with plaintiff's car. After a trial of the issues, a verdict was returned in favor of the defendants; and from the judgment rendered, plaintiff has duly appealed.

Suffice it to say of the petition that it counted upon certain allegations of primary negligence, based upon excessive speed, both at common law, and under a city ordinance; failure to give the right of way, and to keep as near the right-hand curb as practicable, as required by city ordinances; failure to maintain a watch, and to slow down, stop, turn, or swerve the automobile, and to sound a warning; and failure to observe the requirements of the humanitarian doctrine.

Defendants answered separately, each by a general denial.

In the submission of the case to the jury, plaintiff offered only an instruction on the measure of damages, and defendant insurance company received an instruction withdrawing the issue of failure to have given the right of way.

Plaintiff was a salesman for a sewing machine company, and at the time of the accident had two sewing machines fastened on his automobile, one on the rear, and the other on the left running board. The car was a Ford roadster, and accompanying plaintiff on this occasion was one Clyde Williams, who was paid by plaintiff personally to assist him in making his canvass, and in securing prospective customers.

Natural Bridge road and Fair avenue are both open and public streets in the city of St. Louis, the former running east and west, and the latter, north and south. Each street is approximately 50 feet in width, and each has double street car tracks upon it at and near the point of their intersection.

Plaintiff was driving southwardly on Fair avenue, approaching Natural Bridge road from the north. He testified that his speed was 15 miles an hour, and that his car was straddling the west rail of the south-bound car track, with the two right wheels approximately 6 feet from the west curb. As he came to the north curb line of Natural Bridge road, he slowed down to an approximate stop, and looked in both directions for on-coming traffic. He testified that he saw only a large automobile approaching from the west, which was being operated at a moderate rate of speed in the center of Natural Bridge road; and observing that he had ample time to cross the street in front of it, he started his own car forward to make the crossing. He had attained a speed of 8 or 10 miles an hour, and had reached the middle of the street, when the large eastbound automobile was stopped immediately to his right at the west line of Fair avenue. Just as plaintiff was in the act of passing in front of this automobile, a Ford coupé, driven by defendant Struckhoff, passed to the right of the standing automobile at a speed of 30 miles an hour, and without any warning crashed into plaintiff's car, turning it over, and inflicting the injuries and damage for which plaintiff has sued.

Struckhoff's testimony, on the other hand, was that he was driving eastwardly on Natural Bridge road, at a speed of 15 or 20 miles an hour, and that as he came to Fair avenue he made a complete stop. At this time he noticed plaintiff's car, which was then 10 or 15 feet north of the north curb line of Natural Bridge road, and which was moving forward in the south-bound car tracks at a speed which he was unable to estimate. He then pulled out into the intersection at a speed of not more than 7 miles an hour, and had reach the easternmost rail of the Fair avenue car tracks, when his automobile was struck on the left rear wheel and fender by plaintiff's car, and was pushed around in a circle facing northwest to a point 15 or 20 feet beyond the east curb.

For his first point plaintiff argues that there was no substantial evidence adduced to support the verdict rendered for defendants. Suffice it to say of this contention, as our statement of the facts has already disclosed that there was testimony pro and con as to whose negligence directly and proximately brought about the collision, in view of which the finding of the jury against the plaintiff may not be said to have been unwarranted for lack of substantial evidence to support it.

The next claim of error goes to the action of the court with reference to plaintiff's attempted use in evidence of the deposition of defendant Struckhoff, which had been taken some time previous to the trial. Counsel sought to employ the deposition for the purpose of proving the fact of Struckhoff's agency for his codefendant, the insurance company; but upon the latter's timely objection that Struckhoff was present in the court room, and that the portions of the deposition which tended to bear upon the question of agency were not declarations against Struckhoff's own interest as a defendant in the case, the court refused to permit counsel for plaintiff to prove his point in such manner.

We think the ruling of the court was clearly right. So far as we have been able to determine, it has been generally held (subject to such exceptions as are made by the statute, section 5467, R. S. 1919) that where a witness is present in court, or for that matter is even within the jurisdiction of the court, his deposition is inadmissible in evidence, save as it may be used for the purpose of impeachment, or as containing declarations against the interest of a party to the action. Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S. W. 458; Schmitz v. St. Louis, I. M. & S. Ry. Co., 119 Mo. 256, 24 S. W. 472, 23 L. R. A. 250; Schulz v. Bowers (Mo. Sup.) 223 S. W. 725; Chapman v. Kerr, 80 Mo. 158. Of course, as we have previously indicated, the deposition of one who is a party to the suit, as in the case of any other declaration against interest, may be read in evidence by his adversary, though the deponent be present in court, and later testifies in his own behalf. Black v. Epstein, 221 Mo. 286, 120 S. W. 754; Bogie v. Nolan, 96 Mo. 85, 9 S. W. 14; Pomeroy v....