Haglage v. Monark Gasoline & Oil Co.

• Decision Date: 27 June 1927
• Citation: 298 S.W. 117,221 Mo.App. 1129
• Parties: W. H. HAGLAGE, RESPONDENT, v. MONARK GASOLINE & OIL COMPANY, APPELLANT.
• Court: Kansas Court of Appeals

298 S.W. 117

221 Mo.App. 1129

W. H. HAGLAGE, RESPONDENT, v. MONARK GASOLINE & OIL COMPANY, APPELLANT.

Court of Appeals of Missouri, Kansas City

June 27, 1927

Appeal from the Circuit Court of Jackson County.--Hon. Nelson E Johnson, Judge.

Judgment reversed and remanded.

Gamble Trusty & Pugh for respondent.

McCune Caldwell & Downing for appellant.

FRANK, C. Williams, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

FRANK, C.

Action by respondent to recover damages for loss of companionship, society and services of his wife, for medical and hospital bills paid by him and for damages to his automobile, all alleged to have been caused by the negligence of appellant in causing an oil truck belonging to appellant to collide with respondent's automobile which his wife was driving at the time of the collision.

The cause was tried to a jury and judgment rendered in favor of plaintiff in the sum of $ 2000. Defendant appeals.

The collision occurred on September 22, 1924, at the intersection of 47th and Main street in Kansas City, Missouri. Forty-seventh street is also known in the record as Brush Creek Boulevard and Mill Creek Parkway. Main street runs north and south and 47th street east and west. At the time of the collision one Toothman, an employee of appellant was driving its oil truck south on Main street and respondent's wife was driving west on 47th street. Appellant's oil truck was not equipped with a horn or other signalling device and no signal or warning was given by either driver as they approached the intersection.

Respondent's wife brought suit against appellant in the circuit court of Jackson county to recover damages for her personal injuries alleged to have been caused by the collision in question, the case being styled Mary Haglage, Plaintiff, v. Monark Gasoline & Oil Company, a corporation, Defendant, No. 208638.

On April 3, 1926, sixteen days before the trial of the case at bar, respondent filed in said cause the deposition of Charles W. Tomlinson taken in Detroit, Michigan, on March 24 in the case of Mary Haglage v. Monark Gasoline & Oil Company, No. 208638.

On the day the deposition was filed, appellant filed written exceptions to the use of said deposition in this cause for the reason, among others, that said deposition was not taken in this cause but in a separate and independent cause of action wherein the parties and issues were not the same as the parties and issues in the instant case.

When the deposition was offered in evidence appellant objected to its introduction, on the grounds alleged in the written exceptions theretofore filed. Before the trial court ruled on this objection, respondent offered in evidence the petition in the case in which the deposition was taken, in order, as counsel stated, "to show the identity of the causes." This petition was received in evidence. An examination of this petition shows that in the case in which the deposition was taken, Mary Haglage, the wife of respondent sought to recover damages from appellant for personal injuries caused by the collision in question, alleging as ground therefor, the identical acts of negligence alleged in the case at bar. Appellant's objection to the introduction of the deposition was overruled and the deposition was received in evidence.

A plat was introduced in evidence showing that the Kansas City Railway runs diagonally through the territory in question crossing 47th street or Brush Creek Boulevard at a point 122 feet east of the intersection where the collision occurred, and crossing Main street at a point 225 feet north of said intersection.

Photographs introduced in evidence and the testimony of the witnesses show that there were no building or other structures on the northeast corner of the intersection in question that would obstruct the view of either driver or prevent either from seeing the other's car in time to have stopped their cars or placed them under control before entering the intersection where the collision occurred.

Glen C. Toothman, the driver of appellant's truck at the time of the collision was called as a witness by respondent. His testimony is to the effect that he was driving the truck south on Main street at the rate of twelve or fifteen miles per hour and as he crossed the railway tracks on Main street, he saw the Cadillac car on Brush Creek Boulevard and as he approached the intersection he saw the Cadillac coming over the car tracks on Brush Creek Boulevard; that respondent's wife was looking south over her shoulder and he never noticed her or saw her after that until the cars collided; that he began to slow down at a point about half way between the car tracks and the intersection; that he slowed down to a speed of between three and five miles per hour then increased his speed and crossed the intersection at about eight or ten miles per hour; that the truck was in good condition and the brakes were good; that the front seat of the truck was enclosed in a wooden cab but the doors were off and he could see out; that there was no horn on the truck and had not been during the two weeks he had driven it; that the car struck the truck about eight or nine feet from the front end; that the collision occurred on the west side of Main street; that he was looking south as he crossed the intersection; that he judged the Cadillac was going around the neighborhood of twenty-five or thirty miles per hour; that he didn't notice at whet speed she was traveling; that he just judged she was going about twenty-five or thirty miles an hour; that when the truck stopped the front wheels of the truck were parallel with the south curbing of Brush Creek Boulevard; that the Cadillac was facing southwest and was standing about a foot or two away from the truck; that he believed he reached the intersection first, but he did not know where the Cadillac was when he entered the intersection; that he never saw the lady after he crossed the car tracks on Main street and got approximately half way between the tracks and 47th; that for some distance north of the intersection and while crossing the intersection he was going from eight to ten miles per hour and that under the conditions as they existed he could have stopped the truck within eight or ten feet; that 47th street is one of the principal streets of the city and is much traveled at all hours of the day.

Mary Haglage the wife of respondent testified that she was driving west on 47th street at a speed of eighteen or twenty miles per hour; that when she reached the car tracks crossing 47th street she slowed down to eight or ten or twelve miles per hour and proceeded westward toward and across the intersection at a speed of eight or ten, not to exceed twelve miles per hour; that when she was on the car tracks crossing 47th street there was nothing to prevent her from seeing a vehicle on Main street at any point between the intersection and the car tracks on Main street some 250 feet north of the intersection; that when she was about thirty-five or forty feet east of Main street she looked north a distance of one hundred feet and didn't see anything; that she then proceeded west looking still ahead and her vision was such that she could see to her right on Main street about twenty or thirty feet; that she never saw the truck at any time before the collision; that her brakes were in good condition and she could have stopped her car within five feet.

Other evidence introduced tends to show that before this accident respondent's wife was a stout healthy woman and was able to and did do practically all of the housework at their home and looked after and cared for their two children; that she was seriously and permanently injured in this collision and as a result thereof is unable to perform her household duties. Respondent also introduced evidence to the effect that his car was badly damaged; that its reasonable market value before the collision was from $ 850 to $ 1100; that its market value thereafter was from $ 100 to $ 500. Respondent testified that he had expended the sum of $ 291.10 for hospital bills, doctor bills and for medicine in the attempt to cure his wife of her injuries.

The injury to respondent's wife, the expenses paid out by him and the damage to his automobile is not questioned on this appeal, therefore we do not set out the evidence touching these matters.

Appellant's instruction in the nature of a demurrer to the evidence offered at the close of the case was refused and the cause was submitted to the jury under the humanitarian doctrine.

Appellant contends that the court erred in admitting in evidence the deposition of Charles W. Tomlinson taken in the case of Mary Haglage versus appellant.

The record shows that Mary Haglage wife of respondent brought suit against appellant on her own behalf to recover for personal injuries caused by the collision in question in this suit. After notice to appellant, who appeared by counsel and cross-examined, she took the deposition of Charles W. Tomlinson in her suit against appellant, which deposition was later filed in the case at bar. It is appellant's contention that the deposition cannot be used in this case because the parties and issues in both cases are not the same. The rule governing the use of a deposition taken in a case other than that in which it is offered, is correctly stated in Borders v. Barber, 81 Mo. 636, 643, 644, as follows:

"On the trial the defendant offered in evidence the deposition of one Luke White, taken in the cause of one Joseph C. Neece v James L. Borders (the plaintiff here), and St. Louis Life Ins....