Grothmann v. Hermann

• Decision Date: 02 May 1922
• Docket Number: No. 17210.,17210.
• Parties: GROTHMANN v. HERMANN et al.
• Court: Missouri Court of Appeals

241 S.W. 461

GROTHMANN v. HERMANN et al.

No. 17210.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis Circuit Court, J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Annie Grothmann, by William P. Grothmann, her next friend, against Charles M. Hermann and others. From a judgment sustaining a motion to set aside an involuntary nonsuit as "to defendant, the named defendant appeals. Affirmed.

Conrad Paeben, of St. Louis, for appellant.

George A. Davies and Arthur E. Simpson, both of St. Louis, for respondent.

NIPPER, C.

Plaintiff, an infant, sues by next friend to recover for personal injuries sustained by her while boarding an automobile at St. Peter's Cemetery, in St. Louis county, Mo. The suit was brought against the appellant and two other defendants.

At the trial in the court below, at the close of plaintiff's case, the court directed a verdict in favor of all the defendants, and plaintiff suffered an involuntary nonsuit. On motion to set aside the nonsuit, the court sustained the motion as to defendant Hermann, and overruled it as to the other defendants. From this judgment the defendant Hermann appeals.

The negligence alleged in the petition is that, while plaintiff was in the act of getting into an automobile, and having placed her right hand against the doorframe thereof to steady herself, a certain agent and servant of the defendants, in pursuance of his employment, endeavored to shut the door of said automobile, and negligently and carelessly slammed the door before plaintiff had boarded said automobile, and while she was in the act of doing so, and caught the fingers of plaintiff's right hand between the door and the doorframe, injuring her.

The answer of the two defendants other than appellant was a general denial. Defendant Hermann answered by denying specifically that plaintiff was a passenger in an automobile owned and controlled by him, or that a certain agent and servant of his, in pursuance of his employment, endeavored to shut the door of an automobile owned and controlled by him, and further denied generally every allegation in plaintiff's petition.

It appears that Hermann, the appellant here, was an undertaker and liveryman, and was hired by respondent's uncle, Henry Grothmann, to conduct and direct a funeral of plaintiff's grandmother. Pursuant to such employment, Hermann embalmed the body, furnished the casket and hearse, and was present at the house from which the funeral was held, and at the cemetery during the funeral services and burial, directing and supervising affairs at both places. Grothmann knew nothing about the other defendants' furnishing any limousines or chauffeurs. Hermann not having sufficient limousines of his own available, hired some from each of the other two defendants, the other defendants being the Donnelly Undertaking Company, and the Wacker-Helderle Undertaking Company. The two last-named defendants furnished limousines with chauffeurs, for which they were paid by Hermann. The day was very cold, and Hermann directed the mourners to return to the limousines while he placed flowers on the grave of the deceased. Plaintiff and her sister thereupon returned to the limousine in which they had been transported to the cemetery. This limousine belonged to the Donnelly Jndertaking Company. As the mourners left the limousines at the cemetery, a chauffeur who had driven a machine belonging to Wacker-Helderle Company, left his car and went over to and engaged in conversation with the chauffeur of the car in which plaintiff was conveyed to the cemetery. While engaged in such conversation, this chauffeur took a seat beside the chauffeur of the car in which plaintiff had been conveyed to the cemetery. As plaintiff and her sister opened the rear door thereof for the purpose of reentering the car to return home, the chauffeur who had driven the Wacker-Helderle car opened the front door, alighted from the limousine, and as plaintiff placed her hand near the hinge of the front door, the...