Guthrie v. Holmes
|17 November 1917
|198 S.W. 854,272 Mo. 215
|GUTHRIE v. HOLMES.
|Missouri Supreme Court
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.
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:
To continue readingRequest your trial
Bradley v. S.L. Savidge, Inc.
... ... the truck, there arose the presumption that he was acting ... within the scope of his employment, Guthrie v ... Holmes, 272 Mo. 215, 198 S.W. 854, Ann.Cas.1918D, 1123, ... this was only prima facie so and the force thereof was ... ...
Hays v. Hogan
...takes the latter's car, and while using it for his own purposes negligently injures a person thereby, the master is not liable. Guthrie v. Holmes, 198 S. W. 854, decided by this court in banc, at present term, not yet officially reported; Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. S......
Downs v. Horton
...Morgan v. Durfee, 69 Mo. 469, 475, 33 Am. Rep. 508. Many others might be cited. The latest case by the Supreme Court is Guthrie v. Holmes, 272 Mo. 215, 233, 198 S. W. 854, Ann. Cas. 1918D, There are many cases from other states upholding this view of the law which are cited in appellant's a......
Downs v. Horton
...Morgan v. Durfee, 69 Mo. 469, 475, 33 Am. Rep. 508. Many others might be cited. The latest case by the Supreme Court is Guthrie v. Holmes, 272 Mo. 215, 233, 198 S. W. 854, Ann. Cas. 1918D, 1123. "There are many cases from other states upholding this view of the law which are cited in appell......