Halsey v. Metz
| Decision Date | 03 March 1936 |
| Docket Number | No. 5552.,5552. |
| Parties | HALSEY v. METZ. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.
"Not to be published in State Reports."
Action by Julia Halsey against L. T. Metz, doing business as the Metz Lumber Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Henson & Woody, of Poplar Bluff, for appellant.
Elbert Ford, of Kennett, and Lawrence E. Tedrick, of Poplar Bluff, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff in an automobile collision. In her petition plaintiff alleges that on the 8th day of November, 1932, between the hours of 6 and 7 o'clock p. m., she was riding in an automobile in a westerly direction on Vine street in the city of Poplar Bluff; that "as the automobile in which she was riding reached a point on the said Vine Street a few feet east of where it intersects with Tenth Street, a large truck belonging to the defendant and which was at said time being driven and operated by one of defendant's agents, servants and employes, who was then and there acting within the scope of his employment, attempted to pass the automobile in which plaintiff was riding and in so doing so negligently and carelessly managed and operated defendant's said truck that he abruptly turned same in front of the one in which plaintiff was riding and drove same so near thereto that the driver of plaintiff's car in attempting to avoid colliding with defendant's said motor truck was forced into and against an automobile which was standing near the curb on the north side of the said Vine Street and struck said automobile with such force and violence that plaintiff was thrown forward into and against the front seat and injured, etc." The petition further sets out the various injuries sustained by plaintiff and prays damages in the sum of $2,500. The answer was a general denial. On trial to a jury plaintiff obtained a verdict and judgment in the sum of $2,500, and from this judgment defendant has appealed.
At the time plaintiff sustained the alleged injuries of which she complains, she was a passenger, not for hire, in an automobile owned by one Paul Clark and being used upon the day in question to transport voters to and from the polls in Poplar Bluff at the November, 1932, general election. The driver of the car was Lawrence Epps, who, however, was not a witness in the case. Plaintiff had been driven to the city hall, had voted, and was being taken to her home by Epps. She was riding in the rear seat of the automobile with Charlie Chadwick and Edna Halsey. In the front seat, besides Epps, was one Russell Taylor, who had likewise been taken to vote. He testified that after they left the city hall they were going on Vine street and had reached a point near Tenth street; that they struck a car parked on the right side of Vine street about 15 or 20 feet from the intersection; that Epps seemed to be handling the car "awful good"; that they were going down Vine Street about 5 feet from the edge of the walk, and just as they started around the parked car, going at the rate of 15 or 18 miles per hour, the Metz truck was coming up fast but "at no fast speed," and undertook to go around the car in which witness was riding; that there was not room between the Metz truck and the parked car for them to get through and they had to hit one or the other of the cars. On cross-examination he further testified that the car Epps was driving was too close to the Karne's car to stop after the truck came alongside; that they hit the Karne's car but did not hit the truck; that they struck the back end of the parked car and shoved it forward some 5 or 6 feet.
Charlie Chadwick, who was in the back seat of the Epps car, testified in substance that they did not stop from the time they left the voting place until the accident; that the other car (the truck) came along and crowded them and kept turning in and ran them into the parked car.
Edna Halsey, sister-in-law of plaintiff, testified that she was riding in the back seat of the Epps car; that they were driving west on Vine street and saw the parked car; that the driver of their car was veering their car to go by the parked car when the truck passed them and crowded in front so that the driver of their car had to swerve to the right to avoid hitting the truck, and when he did so, he hit the parked car; that the truck cut right in ahead of them, and if they had kept straight they would have run into the truck; that the front end of their car was barely past the rear end of the parked car and the right front end of their car struck the left rear end of the parked car.
Mrs. Julia Halsey, plaintiff, who was riding on the left side of the Epps car in the rear seat, testified in part as follows:
There can be little doubt that the foregoing abstracts from the evidence are sufficient to show that plaintiff made a case for the jury on the question of primary negligence on the part of the driver of defendant's truck, and that such negligence comes within the allegations of plaintiff's petition. In fact, defendant does not seriously question that point. It is defendant's contention, however, that a demurrer to the evidence should have been sustained for the stated reason that the record fails to show that Gene Metz, the driver of the truck, was at the time of the accident acting within the scope of his employment, or that he was on any mission for defendant, or engaged in furthering defendant's business. The evidence on that question comes from defendant himself and his son, Gene Metz, the driver of the truck. It appears from the briefs and plaintiff's additional abstract that some difference of opinion exists between plaintiff and defendant as to just what the testimony was.
We have been supplied with a partial copy of the original bill of exceptions covering that testimony which we accept as correct. Defendant, who appeared as one of plaintiff's witnesses, testified on direct examination in part as follows:
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