Dorsett v. Pevely Dairy Co.
| Decision Date | 07 February 1939 |
| Docket Number | No. 24619.,24619. |
| Citation | 124 S.W.2d 624 |
| Parties | DORSETT v. PEVELY DAIRY CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.
"Not to be published in State Reports."
Suit by Edna Byrd Dorsett against the Pevely Dairy Company and others for injuries sustained in an automobile accident. Judgment for plaintiff. A motion for a new trial was denied, and named defendant appeals.
Judgment as to the named defendant reversed.
Wm. H. Allen, Alexander Kerckhoff, and Daniel M. Kerckhoff, all of St. Louis, for appellant.
Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, for respondent.
This suit was instituted by respondent, as plaintiff, to recover damages for personal injuries alleged to have been sustained by her on March 1, 1932, when an automobile which she was driving on a highway in St. Louis County, Missouri, was struck by an automobile truck driven by defendant Herbert Meyers. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against all the defendants in the sum of $1500. After an unavailing motion for a new trial, defendant Pevely Dairy Company has brought the case to this court by appeal. None of the other defendants appealed.
Plaintiff's second amended petition, on which the case was tried, alleged that, on or about March 1, 1932, plaintiff was driving an automobile in a westerly direction on Manchester Road, a public highway in St. Louis County, Missouri, at or near Manchester, Missouri; "and that defendants, acting by and through defendant Herbert Meyers, their agent and servant, drove and operated an automobile, at said time and place, in a westerly direction, and behind plaintiff's automobile, and did then and there with great force and violence run into and collide with plaintiff's automobile, directly thereby causing plaintiff to sustain * * * injuries and damages." Plaintiff alleged that her injuries "directly and proximately resulted from the negligence of the defendants, their agent and servant."
The petition contained a number of charges against defendants of primary negligence, and a charge of negligence under the humanitarian doctrine for negligent failure to stop defendants' automobile, slacken the speed thereof, swerve the same, or give a warning signal of its approach.
The answer of all the defendants was a general denial.
The main contention of the defendant Pevely Dairy Company, the sole appellant herein, is that the trial court erred in refusing to give the peremptory instruction in the nature of a demurrer to the evidence, which it requested at the close of all the evidence in the case. This assignment of error requires a review of the evidence, particularly with respect to the relationship between defendant Pevely Dairy Company and the partnership doing business as New Haven Transportation Company and Herbert Meyers, the driver of the automobile truck which ran into the automobile driven by plaintiff.
Plaintiff, respondent, has not filed any brief in this court.
The evidence discloses that, on March 1, 1932, plaintiff drove her Chevrolet coupe from the City of St. Louis to the home of a Mr. and Mrs. Motz at Manchester in St. Louis County, Missouri. She was accompanied by a Mrs. Esther Woerther, who had her two year old daughter with her. After they had arrived at the Motz home, they started for a place called Weidner's Tourist Camp in the town of Manchester to visit relatives of Mrs. Woerther. Mr. Motz drove his automobile west on the concrete highway ahead of plaintiff's automobile to show plaintiff how to reach the tourist camp, which was located on the south side of the highway. The evidence shows that it was misting rain at the time, and the concrete highway was wet. Arriving near the tourist camp, Motz turned his automobile to the left into the driveway of the camp. He was followed by plaintiff in her automobile, who started to make a left turn from the highway into the driveway. The automobile truck driven by defendant Meyer was going westwardly on Manchester Road following plaintiff's automobile, and tried to pass plaintiff's automobile on the left, which was the south side of the highway, as plaintiff's automobile started to turn to the left across the black line in the middle of the highway. The truck struck the rear-end of plaintiff's automobile, causing it to swing around on the highway so that when it came to a stop it was on the north half of the concrete slab, facing eastward. The truck also turned around on the highway and came to a stop on the north side thereof, facing east, a short distance east of plaintiff's automobile. The concrete slab of the highway was eighteen feet wide.
The evidence on behalf of plaintiff shows that Motz was driving his automobile about one hundred to one hundred and fifty feet in front of plaintiff; that, before he turned into the tourist camp driveway, he signalled by raising his hand; that plaintiff then lowered the window of her automobile and gave a signal by holding her hand out and down, indicating that she was about to make a left-hand turn. Plaintiff testified that she looked in her rearview mirror at that time and saw the truck coming westward behind her, a distance of about one hundred or one hundred and fifty feet away. Plaintiff's evidence further discloses that plaintiff had been going about fifteen to twenty miles an hour, but, in approaching the driveway of the tourist camp, had reduced her speed to between eight and ten miles an hour. Plaintiff testified that she heard no warning sound by the truck.
Mr. Motz testified that, when he gave his signal by raising his hand, plaintiff was then one hundred or one hundred and fifty feet behind him; and that, through his rear window, he saw plaintiff run the window of her automobile down and hold her hand out and down for a distance of about one hundred and fifty feet before she turned.
Mrs. Woerther, who was also injured as a result of the collision, testified that plaintiff was driving with her arm out for a distance of about one hundred feet.
Defendant Herbert Meyer, named as Herbert Meyers, testified on behalf of defendants that he was the driver of the automobile truck in question; that he was following plaintiff's Chevrolet coupe and was going at about twenty miles an hour; that he started to pass plaintiff's automobile upon the left; that he sounded his horn, and when his truck was about twelve or fifteen feet from plaintiff's automobile and was about turning across the black line in the middle of the highway, plaintiff made a sharp left turn to the left side of the road without giving any signal at all; that, in the distance of the twelve or fifteen feet, he was not able to stop, going at the speed he was going — twenty miles an hour, although he did put on his brakes immediately.
The foregoing is a sufficient review of the evidence to show the manner in which plaintiff sustained her injuries. In the view which we take of the evidence in this case, it will not be necessary to go into further details with respect to the manner in which plaintiff sustained her injuries or the extent thereof.
We are of the opinion that there was no evidence adduced in the case to show, or to warrant an inference, that the defendant Pevely Dairy Company was the owner of the truck involved in the collision or that said defendant was the employer of Meyer, the driver of the truck; or that it had any control or right of control whatsoever of the truck or the driver thereof. On the contrary, we believe the evidence affirmatively and conclusively shows that there was no relationship of master and servant existing between the Pevely Dairy Company and Meyer so as to make the dairy company liable for the negligence of Meyer as the driver of the truck. Taking the evidence adduced on behalf of plaintiff as true and giving plaintiff the benefit of every reasonable inference arising from all the evidence, as we are required to do upon consideration of a demurrer to the evidence, we are unable to find in the record sufficient evidence to warrant the submission of the case to the jury as to the defendant Pevely Dairy Company.
In support of plaintiff's charge that the defendant Pevely Dairy Company operated the truck, through Meyer, its "agent and servant", plaintiff called as her witness defendant Mike Maczuk, who testified that he and his wife and defendant Harold A. Lewis, Maczuk's brother in law, and Lewis' wife, were partners engaged in the general hauling business under the name "New Haven Transportation Company"; that a part of their business was the hauling of milk for farmers or milk producers living in the vicinity of New Haven, Missouri, to the plant of the Pevely Dairy Company in the City of St. Louis; that they, the partners, owned the truck which was involved in the collision, and that defendant Meyer was employed by them and paid by them; that the name Pevely Dairy Company did not appear at any place on the truck; that the name "New Haven Transportation Company, New Haven, Missouri," did appear on the body of the truck; that, on the day in question, Meyer, the driver of the truck, had picked up from various farmers in the vicinity of New Haven cans of milk and had hauled them to the plant of the Pevely Dairy Company in St. Louis; that, at the time of the collision, Meyer was returning to New Haven with empty milk cans, along with certain freight that the partnership, New Haven Transportation Company, was hauling from St. Louis to New Haven for the New Haven Mercantile Company.
The witness further testified that the Pevely Dairy Company paid the farmers or milk producers a certain price per hundred pounds for so much of their milk delivered to the dairy company's plant as was accepted by the dairy company; that each of the milk producers gave written directions to the dairy company, on a form furnished by the dairy company, to deduct...
To continue reading
Request your trial
-
State ex rel. Jones Store Co. v. Shain
... ... overcame that presumption. Ross v. St. Louis Dairy ... Co., 339 Mo. 982, 98 S.W.2d 717; State ex rel. v ... Hostetter, 344 Mo. 443, 126 S.W.2d ... Craig, 149 Mo. 345, 50 S.W. 884; Guthrie v ... Holmes, 272 Mo. 215, 198 S.W. 854; Dorsett v. Pevely ... Dairy Co., 124 S.W.2d 624. (6) The opinion of the Court ... of Appeals in holding ... ...
-
McKay v. Delico Meat Products Co.
...v. Grace, 159 S.W.2d 383; Bobbitt v. Enlers, 131 S.W.2d 900; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624. (5) trial court did not err in refusing to permit defendant's office manager to testify defendant paid the compensation insu......
-
Corder v. Morgan Roofing Co.
... ... Life Ins. Co., supra; Skidmore v ... Haggard, 341 Mo. 837, 110 S.W.2d 726; Dorset v ... Pevely Dairy Co., 124 S.W.2d 624; State ex rel ... Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Bass ... [350 Mo. 387] (2d) 589; ... Skidmore v. Haggard et al., 341 Mo. 837, 110 S.W.2d ... 726; Dorsett v. Pevely Dairy Co. (Mo. App.), 124 ... S.W.2d 624; State ex rel. Chapman v. Shain et al., ... ...
-
Bass v. Kansas City Journal Post Co.
...insurance. There was no error committed regarding questions of liability insurance raised by plaintiffs at the trial. Dorsett v. Pevely Dairy Co., 124 S.W.2d 624. Hays, J. This is an action for wrongful death under Section 3263, R. S. Mo. 1929, brought by the mother and father of Noel Bass,......