Hammonds v. Haven

• Court: Missouri Supreme Court
• Writing for the Court: WESTHUES; PER CURIAM
• Citation: Hammonds v. Haven, 280 S.W.2d 814 (Mo. 1955)
• Decision Date: 13 June 1955
• Docket Number: No. 44540,No. 1,44540,1
• Parties: W. J. HAMMONDS, Respondent, v. William D. HAVEN, Defendant, and DeKalb Agricultural Association, Inc., a Corporation, Appellant

Page 814

280 S.W.2d 814

53 A.L.R.2d 992

W. J. HAMMONDS, Respondent, v. William D. HAVEN, Defendant and DeKalb Agricultural Association, Inc., a Corporation, Appellant.

No. 44540.

Supreme Court of Missouri, Division No. 1.

June 13, 1955.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 11, 1955.

Harry C. Blanton, Sikeston, Blanton & Blanton, Sikeston, of counsel, for appellant, DeKalb Agricultural Ass'n, Inc.

Limbaugh & Limbaugh, Rush H. Limbaugh, Jr., Cape Girardeau, for respondent.

WESTHUES, Judge.

Plaintiff W. J. Hammonds, respondent in this court, filed this suit to recover damages for personal injuries sustained when struck by a car driven by the defendant William D. Haven. Plaintiff also joined as a defendant the DeKalb Agricultural Association, Inc., a corporation, on the theory that Haven was the agent of the corporation and acting as such at the time plaintiff was injured. A trial resulted in a verdict for plaintiff in the sum of $20,000 against both defendants. Motions for new trial were overruled and the defendant corporation appealed.

The appealing defendant urges that the judgment against it should be reversed outright on two grounds: One, that the evidence disclosed plaintiff to have been guilty of contributory negligence as a matter of law. Two, that the evidence failed to show that defendant Haven at the time plaintiff was injured was acting as the servant of the defendant corporation. In case the court should decide against outright reversal, a new trial is sought on the basis of assignments of error pertaining to instructions.

Except as to minor details, the principal facts were not in dispute. Briefly the facts were: The defendant Haven, as District Sales Manager for the DeKalb Agricultural Association, Inc., called a meeting of the salesmen for the DeKalb Company for the night of November 22, 1952, at Dexter, Missouri. Plaintiff Hammonds, as one of these salesmen, attended the meeting. Plaintiff and also Haven lived at Cape Girardeau, Missouri. Each drove his own car to the meeting at Dexter. While the meeting was in progress, there was a severe rainstorm. The plaintiff, desiring to go home early, asked Haven if he might go home when the meeting was about over. Permission was granted and plaintiff began his drive home on State Highway No. 25. About a mile or so south of Advance, Missouri, plaintiff encountered a tree which had been blown down and across the roadway. Plaintiff stopped his car and after making some inspections, drove by the tree on the east shoulder of the roadway. Plaintiff parked his car a short distance north of the fallen tree. Plaintiff, thinking that the presence of the tree endangered motorists and knowing the defendant Haven would be driving over that roadway soon, prepared to warn approaching drivers. The rain had stopped but the night was very dark. It was then about 9:30 P.M. Shortly after plaintiff had parked his car, he noticed the lights of a car coming from the north. Plaintiff attempted to warn the driver but was not seen in time and the car being operated at a high rate of speed crashed through the tree and came to a stop in a ditch on the south side of the tree. The driver was not injured, but the car was damaged. This driver proved to be Father Kelly, a Catholic priest, from Malden. After some conversation between plaintiff and Father Kelly, plaintiff agreed to warn traffic coming from the south and Father Kelly went to the north side of the tree to stop traffic coming from the north. A bus coming south was stopped a short distance north of the tree. About this time, plaintiff saw a car coming north and when it was 500 or 600 feet away, plaintiff, standing about the center of the road, began to wave his arms. The driver of this car proved to be the defendant Haven. He did not see plaintiff in time to stop and the car struck plaintiff. Haven testified he was driving about 55 to 60 miles per hour; that he did not see plaintiff until he was within 50 feet or so; that he then swerved to the right; that his car skidded and struck plaintiff who had by that time reached the east shoulder of the road. The car came to a stop north of the tree and in the east ditch. Plaintiff was found near the car. He was severely injured.

Plaintiff testified that he noticed the car Haven was driving swerve right and left as it approached and that he then ran for the ditch east of the road; that when he was on the shoulder, the car struck him.

The first question presented is, was plaintiff guilty of negligence in attempting to warn motorists of the dangerous situation on the highway? We rule that this was a question for a jury to decide. In this case, the court submitted the question of contributory negligence to a jury and the jury found for plaintiff. The general rule applicable to the situation is stated in 65 C.J.S., Negligence, Sec. 124, p. 736, as follows: 'Under what is commonly referred to as the rescue doctrine, conduct which might otherwise be considered contributory negligence may not be so considered where a person is injured in attempting to save others from imminent danger of personal injury or death. Persons are held justified in assuming greater risks in the protection of human life where they would not be under other circumstances. One is not guilty of contributory negligence in exposing himself to danger of injury in order to rescue another from imminent danger of personal injury or death, if, under the same or similar circumstances, an ordinarily prudent person might so expose himself, or, as often expressed, if the act of intervention is not performed under such circumstances as would make it rash or reckless in the judgment of ordinarily prudent persons. This is true even though the person attempting the rescue knows that it involves great hazard to himself without certainty of accomplishing the attempted rescue and even though in attempting such rescue he thereby imperils his own life.' That rule is supported by numerous authorities as will be noted in the citation of cases to the text. We call particular attention to the following cases: Rovinski v. Rowe, 6 Cir., 131 F.2d 687, loc. cit. 692(3-6); Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915, loc. cit. 920(9, 10); Guca v. Pittsburgh Rys. Co., 367 Pa. 579, 80 A.2d 779, loc. cit. 781(4, 5). The same rule prevails in this state. Doran v. Kansas City, Mo.App., 237 S.W.2d 907, loc. cit. 912(5, 6).

It is contended that plaintiff cannot recover because he voluntarily abandoned a safe place and assumed a dangerous position. Cases cited in support of that contention do not apply to the situation in this case. For example: The plaintiff in Chisenall v. Thompson, 363 Mo. 538, 252 S.W.2d 335, was denied a recovery because he attempted to clean a cornpicking machine by a dangerous method when a safe way was open to him. The plaintiff in the case before us with the means at hand could not have warned approaching motorists without assuming a dangerous position.

The case of Guca v. Pittsburgh Rys. Co., supra, presented a set of facts very similar to those in this case. Guca's car was stalled on street-railway tracks. In the car was a Miss Wolff. A streetcar approached. Guca attempted to warn the motorman who did not see him and Guca lost his life. The administrator sued. The court in disposing of the question of Guca's assuming a dangerous position said, 80 A.2d loc. cit. 781(4, 5): 'It was reasonable for Guca to remain on the tracks as the best vantage point under the circumstances to catch the motorman's attention and thus avoid collision with the automobile with consequent injury to his passenger, Miss Wolff, who had remained seated in the car, and possible derailment of the street car with consequent injury to the passengers. 'It is not negligence, per se, for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger.' Corbin v. City of Philadelphia, 195 Pa. 461, 471, 45 A. 1070, 1074, 49 L.R.A. 715'.

So, in this case, we cannot hold that plaintiff was guilty of contributory negligence as a matter of law even though he stood in the center of the roadway to warn his friend, whom he expected to be traveling that way, of the danger ahead.

It is argued that the rescue doctrine is not applicable because the defendants were not responsible for the dangerous situation. Defendant cited cases and 65 C.J.S., Negligence, Sec. 124, Note 16, p. 738. The paragraph reads as follows: 'The rescue doctrine has been held to be applicable only where the situation which invites rescue is created by the tortious act of defendant or one for whom he is responsible, ¹⁶ and, in order to invoke the doctrine where defendant is not responsible for the peril to the one sought to be rescued, defendant must be guilty of negligence toward the rescuer after he has begun to attempt the rescue. ¹⁷ ' It will be noted that what follows Note 16 is applicable to this case. After plaintiff stationed himself on the roadway to warn oncoming travelers, the defendant Haven negligently operated his car to plaintiff's injury. It is not even contended that defendant Haven was not negligent. The trial court ruled correctly in submitting the question to a jury.

In its second point, the defendant corporation contends the evidence failed to prove that Haven was at the time of the accident acting as the agent or servant of the company. Particular stress is given to the fact that Haven had the right to choose his own means of transportation and therefore the company had no control over his movements. That is a close question in this case. However, we are of the opinion that it was a question for a jury to decide.

That Haven was employed by the defendant company as a sales manager was an admitted fact. There was no evidence that he worked on a commission or that he was an independent contractor. The evidence justifies the inference that the company had the right to control and, in fact,...