Guthrie v. Holmes

• Decision Date: 17 November 1917
• Docket Number: No. 20025.,20025.
• Citation: 198 S.W. 854,272 Mo. 215
• Parties: GUTHRIE v. HOLMES.
• Court: Missouri Supreme Court

198 S.W. 854

272 Mo. 215

GUTHRIE v. HOLMES.

No. 20025.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Case Certified from Kansas City Court of Appeals.

Action by Joseph A. Guthrie, administrator, against Conway F. Holmes. Judgment for plaintiff, and defendant appealed. Certified from the Kansas City Court of Appeals, where the judgment was affirmed. Judgment reversed.

Morrison, Nugent & Wylder and H. L. Hassler, all of Kansas City, for appellant. Hogsett & Boyle, of Kansas City, for respondent.

GRAVES, J.

This case reaches us upon a proper certification from the Kansas City Court of Appeals, there being a dissenting judge who deemed the majority opinion in conflict with opinions of this court, and expressed of record such views in an opinion filed.

The case was twice before the Kansas City Court of Appeals. First it was held (Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236) that there were facts sufficient to take the case to the jury, but the judgment for plaintiff was reversed and cause remanded for error in an instruction. Upon a retrial plaintiff again received a verdict at the hands of the jury, and from a judgment thereon the present appeal arises. Upon a second hearing in the Court of Appeals, the division of opinion occurred, and the dissenting judge now takes the position that the plaintiff failed to make a case.

That the evidence on the second trial must have been materially different from that upon the first is made clear by rulings in the first opinion. Thus in the first opinion we find this recited fact:

"And it was further shown that he was to overhaul the car and make some repairs during the absence of defendant, consulting with an expert in a certain public garage in the city."

No such statement of facts could be made on the present record, and from it we conclude the evidence before us is quite different from the record in the first appeal. However, we shall state the facts, as we find them in this record.

In March or April, 1912, the defendant employed one H. L. Hettenbaugh as a chauffeur, and to take care of his two automobiles. Hettenbaugh was not only a chauffeur, but was an automobile mechanic, having had experience in repair shops. On July 10, 1912, defendant and his family and some others were going away from Kansas City, and Hettenbaugh drove defendant's wife, some members of his family, and perhaps a Mrs. Edson, to the railroad station at Second and Wyandotte streets. Defendant had two automobiles. one a Packard touring car, used by Hettenbaugh on this occasion, and the other a Packard roadster, driven to the depot by defendant on this occasion. Defendant drove to the station, shortly before time of the train's departure, and whilst there directed Hettenbaugh to take two acquaintances up town and then to take the car home. One of these acquaintances was to be taken to the Dwight Building at Tenth and Baltimore, and the other to the Baltimore Hotel at Eleventh and Baltimore. There is no question as to the directions given Hettenbaugh at this time. The day before his departure, it appears that defendant had directed Hettenbaugh to thoroughly overhaul his cars, if he had time so to do, and especially the roadster. Defendant, himself, only expected to be absent some ten days. No directions were given about consulting Rogers, or any other expert about either of said cars. Instead of the record showing that such directions were given, as indicated in the first opinion of the Court of Appeals, this record shows that they were not given. It is true that Hettenbaugh says that on two or three previous occasions defendant had directed him to consult with one Rogers, at a garage at Thirty-Fourth and Broadway, but there were no such directions at this time.

Defendant lived at the intersection of Harrison street (a north and south street) and Armour boulevard. From the Baltimore Hotel, where the last passenger was to be left, to defendant's home was in a southeasterly direction. We have given the directions of defendant to Hettenbaugh. In the instant case it is admitted that the plaintiff was injured through the negligence of Hettenbaugh whilst driving the defendant's car. The accident and injury occurred at Nineteenth street and Grand avenue about 7:30 in the evening. Hettenbaugh left the railway station at shortly after 1:30. It would require him about 10 minutes to deliver the two passengers to their respective places, and then 30 to 40 minutes to drive the car to defendant's home. By 2:30 at least, had defendant's directions been followed, his car would have been in the garage back of his residence. The doings of Hettenbaugh become material at this point. He says (and in this case two depositions of Hettenbaugh were introduced in evidence by the plaintiff) that after delivering the passenger at the Baltimore Hotel, he drove back a block to the Dwight Building, wherein was the Pioneer Trust Company, with which defendant appears to have been connected, to get his check cashed, where he had to remain until after 3 o'clock for that purpose. He then started south on Grand avenue in the direction of defendant's home. At Twelfth and Grand avenue he stopped to get his laundry. At Seventeenth and Grand avenue he stopped and talked with a friend by name of Davis, who was in the automobile business, but no talk about his car, and in a nearby section took a drink of liquor. He says that there was a knock in the engine of the car, and he concluded to drive to a public garage at Thirty-Fourth and Broadway to consult one Rogers, who was an expert on Packard cars; that he took Rogers in the car and they drove to Fortieth and Broadway, as he says, so that Rogers might observe the car. Rogers says he was not advised with about the car at all, but that they took a drink at a saloon at that street intersection. In making this trip to Thirty-Fourth and Broadway Hettenbaugh had gone considerably west and much south of defendant's residence, and his arrival there was about 4 o'clock in the afternoon. After returning to the garage with Rogers, Hettenbaugh went south on Main street to Thirty-Seventh and Main, his home, where he arrived, as he says, about 5 o'clock. About 6 o'clock he retraced his route, and, seeing Rogers about to take a street car for his (Rogers') home took him in the car to take him home. Hettenbaugh had a young man with him at this time. Rogers was picked up at Thirty-Third and Broadway. Thence the three went north to Fifteenth and Grand avenue, where they stopped at a saloon and got another drink. At this time Rogers noticed that Hettenbaugh was a little talkative, and he took the wheel and drove the car himself, with Hettenbaugh in a seat beside him. From this saloon Rogers drove east on Fifteenth street to the Paseo, and thence south on Paseo to Howard, and thence east on Howard street to Parke avenue, his home. The car was then a mile and a half or more northeast of defendant's residence, and it was nearly 7 o'clock in the evening. What became of the young companion does not appear. The doings of Hettenbaugh from the time he left the home of Rogers had better appear in his own language. His deposition was twice taken — once by plaintiff and once by defendant — but both depositions were read in evidence by the plaintiff in this second trial. It is largely upon these depositions that the Court of Appeals (majority opinion) find the liability of the defendant. In his deposition given on October 11, 1912, Hettenbaugh says:

"Q. Well, now, where did you go from Rogers' place, Mr. Hettenbaugh? A. I don't know. I could not answer that question properly. Q. Have you any recollection at all about it? A. Well, I have a faint recollection, but I could not be positive. Q. Well, what is your best recollection? A. My recollection is that I went on south from there, intending to go to the garage, that is, to his home, and put the car away; but it seems to me that when I got nearly to the place, I missed my keys, and whether I left them one place or another I don't know, and never found them, and haven't found them yet, as far as that goes. Q. What keys do you refer to? A. The keys to the cars and the garage. They were on a ring. Q. Was the garage kept locked at all times? A. Yes, sir. Q. State whether or not you had received instructions from Mr. Holmes to keep the garage locked? A. Yes, sir; that was the first instruction that I got when I went to work for him. Q. What did you do then, when you missed your keys, Mr. Hettenbaugh? A. I couldn't answer that question for certain. Q. What is your best recollection? A. The only recollection that I have, I missed my keys — it seemed to me I did. Further than that I don't remember any more. I don't know where I went after that. Q. Well, do you have any recollection of starting out to look for your keys? (Objected to as leading and suggestive. Objection overruled.) A. No, I have no other recollection of going to look for the keys, but, as I remember it, I went back to the garage, and looked for my keys there, and they were gone. Further than that I cannot remember. Q. What was the next thing you do remember, Mr. Hettenbaugh? A. Well, the next thing I can remember was that I woke up in No. 1 police station. That is about all I can tell you. I didn't know where I was then, but I found out pretty soon. Q. You have no recollection of running into anybody? A. Why, yes; I have a faint recollection of the accident at Fifty-Second and— (Objected to for the reason that it is leading and suggestive. Objection overruled.) Q. Go on. A. I have a faint recollection of running into a man at Fifty-Second and Oak, although I didn't have at that time. But since I have thought about it, thought it over, and studied over it. I think I remember of it now. Q. Do you recollect whether it was a man you ran into at Fifty-Second and Oak, or another machine, which? A. Another machine, that I run into there, I think. As far as I can recollect. Q. You have no...