Harrison v. Bence

• Decision Date: 16 March 1925
• Docket Number: No. 24614.,24614.
• Citation: 270 S.W. 363
• Parties: HARRISON v. BENCE.
• Court: Missouri Supreme Court

270 S.W. 363

HARRISON v. BENCE.

No. 24614.

Supreme Court of Missouri, Division No. 1.

March 16, 1925.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Action by Catherine Harrison against Joseph Bence. Judgment for defendant, and plaintiff appeals. Affirmed.

John Neu, Jr., and Earl M. Pirkey, both of St. Louis, for appellant.

Kane, Schreiber & Newman, of St...Louis, for respondent.

RAGLAND, P. J.

Action for injuries alleged to have been negligently caused. On ,September 21, 1920, plaintiff was driving a horse hitched to a light park wagon east on Madison street In the city of St. Louis. While she was in the act of crossing Glasgow avenue, a street which runs north and south, she was run into by a motor truck owned by the defendant and driven by one of his employees. Her wagon and harness were damaged, and she sustained personal injuries.

Defendant was a tinner. He maintained a shop and office at 1428 Monroe street. On the afternoon of the day just mentioned he sent two of his employees, Krummel, a tinner, and Grossman, a tinner's helper, to 1612 North Eighteenth street to do some work. During the progress of the work it became necessary to have some additional spouting, and Krummel directed his helper, Grossman, to go to defendant's shop, four blocks away, and get it. Grossman took a truck belonging to the defendant and drove directly to the shop where he procured and loaded the spouting. Then, instead of returning to the place where Krummel was at work, he went in a different direction. After driving some 10 or 12 blocks, he picked up two young women and a young man and took them riding. While taking this ride he ran into plaintiff. He had no previous appointment with the young people with whom he was riding. He seemed to have left defendant's shop solely in quest of adventure. He testified that at the time he collided with plaintiff's wagon, he was not on his way to 1612 North Eighteenth street; he expected to take his friends back home before he delivered the spouting. He was a 17 year old boy. The foregoing is the substance of the evidence offered by defendant as to the nature of the transaction in which Grassman was engaged at the time of the accident, and plaintiff offered nothing contra.

The petition set forth as grounds for recovery: Excessive speed, failure to warn, violation of a certain right of way ordinance of the city of St. Louis, and facts involving the humanitarian doctrine. The answer was a general denial.

There was evidence on the part of plaintiff tending to show that Grossman was guilty of negligence as alleged. The defendant directed his efforts mainly to showing that at the time Grossman ran the truck into plaintiff's wagon he was on a mission of his own and" one entirely outside the scope of his employment.

At the request of defendant the court gave the jury three instructions, numbered 3, 4, and 5, with respect to the nonliability of the defendant for the acts of his employee, if those acts were committed by the latter outside the scope of his employment. Instruction No. 3 began with the following preliminary statement:

"The court instructs the jury that in order for plaintiff to recover against defendant in this case she must show to your reasonable satisfaction that, at the time mentioned in the evidence, the automobile truck was being operated by the driver on an errand for or in the business of the defendant."

It then hypothesized certain facts which defendant's evidence tended to show (summarized above), and told the jury that if it found those facts to be true then their verdict must be for defendant. The two other instructions were as follows:

"No. 4. The court instructs the jury that if you believe and find from the evidence that at the time of the collision mentioned in the evidence, the defendant's automobile was being driven by the defendant's chauffeur outside the scope of the chauffeur's employment and not for the business or pleasure of the defendant, then your verdict must be in favor of the defendant.

"No. 5. The court instructs the jury that where a chauffeur either with or without his master's consent uses his automobile for his own business or for his own pleasure and inflicts injury upon another, the master cannot be held liable therefor.

"You are therefore instructed that if you believe and find from the evidence that at the time the automobile and wagon collided, the defendant's chauffeur was operating the defendant's automobile for his own business or for his own pleasure and outside the scope of the servant's employment, then your verdict must be in favor of the defendant."

The court of its own motion gave a number of instructions. These instructions were purely formal and of the kind sometimes denominated "stock instructions." The court's instruction No. 7 was as follows:

"The court instructs the jury that the burden of proof is on the plaintiff to establish by the preponderance or greater weight of the evidence the facts necessary to a verdict in her favor under these instructions.

"By the terms `burden of proof' and `preponderance of the...