Hays v. Hogan

• Decision Date: 22 December 1917
• Citation: 200 S.W. 286,273 Mo. 1
• Parties: BERTIE A. HAYS, Appellant, v. R. S. HOGAN and J. E. HOGAN
• Court: Missouri Supreme Court

200 S.W. 286

273 Mo. 1

BERTIE A. HAYS, Appellant, v. R. S. HOGAN and J. E. HOGAN

Supreme Court of Missouri, First Division

December 22, 1917

Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.

Reversed and remanded (with directions) as to J. E. Hogan.

Wilfley McIntyre & Nardin and O. L. Haydon for appellant.

(1) A verdict of the jury, if intelligible and of clear meaning will not be set aside on account of mere imperfections or irregularities. Ryors v. Prior, 31 Mo.App. 555; Gurley v. O'Dwyer, 61 Mo.App. 348; Musser v Adler, 86 Mo. 450; Purver v. Koontz, 138 Ind. 252; Shaeffer v. Railway, 98 Mo.App. 445. (2) The verdict in the case at bar is, on the record, without ambiguity, and clearly shows that the verdict agreed to by the jury and returned into court was a verdict for six thousand five hundred dollars. State v. Underwood, 57 Mo. 52; State v. Rush, 95 Mo. 206; Devoy v. Transit Co., 192 Mo. 219; Hamburg-Breman Co. v. Mfg. Co., 76 F. 481; Capon v. Stoughton, 16 Gray, 364; West v. Bank, 63 Ga. 320; Hemkin & Palmers v. Barbrey, 40 Ga. 252; Mattocks v. United States, 146 U.S. 148; Davis v. Heber Mfg. Co., 119 Iowa 56; Jackson v. Dickinson, 15 Johns (N.Y.) 309; Peters v. Fogarty, 55 N.J.L. 386; Dalrymple v. Williams, 63 N.Y. 360; Wolfgren v. Schoepke, 123 Wis. 19. (3) Where one owns and maintains an automobile for the use and pleasure of himself and family, and an injury is inflicted through the negligence of the person in charge of the automobile while using the machine for one of the purposes for which it is kept, the owner is liable. And this is true whether the person driving the machine at the time is a member of the family or a hired chauffeur. Denison v. McNorton, 228 F. 401; Stowe v. Morris, 147 Ky. 386; McNeal v. McKain, 33 Okla. 449; Campbell v. Arnold, 219 Mass. 160; Burne v. Whitman, 209 Mass. 155; Smith v. Ford, 211 Mass. 269; Smith v. Jordan, 211 Mass. 296; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970; Plotz v. Holt, 124 Minn. 169; Gignon v. Campbell, 80 Wash, 543; Switzer v. Sherwood, 80 Wash. 19; Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59; Allen v. Bland, 168 S.W. 35; Hazzard v. Carstair, 244 Pa. 122; Moon v. Matthews, 227 Pa. 488; Cowell v. Saperston, 149 A.D. 373, 208 N.Y. 619; McHarg v. Adt. 163 App.Div. (N.Y.) 782; Missell v. Hayes, 86 N.J.L. 348; Davis v. Littlefield, 97 S.C. 171; Winn v. Halliday, 69 So. 685; Carrier v. Donovan, 88 Conn. 37; Hiroux v. Baum, 137 Wis. 197; Lashbrook v. Patton, 1 Duy. (Ky.) 317; Winfrey v. Lazarus, 148 Mo.App. 388; Daily v. Maxwell, 152 Mo.App. 422; Marshall v. Taylor, 168 Mo.App. 240; Hays v. Hogan, 180 Mo.App. 237. (4) The ownership of the machine being conceded by the defendants, the presumption follows that when the defendant's son was using it he had his father's consent, and the burden was then cast on the defendant father to prove to the satisfaction of the jury that no consent, express or implied, had been given by him to the son. Shamp v. Lambert, 142 Mo.App. 567; Marshall v. Taylor, 168 Mo.App. 240; Christensen v. Christiansen, 155 S.W. 995; Birch v. Abererombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59; Hazzard v. Carstairs, 244 Pa. 122; Moon v. Matthews, 227 Pa. 488; O'Malley v. Heman, 255 Mo. 391; Fleishman v. Ice & Fuel Co., 148 Mo.App. 117. (5) The master may be liable for the acts of his servant by mere acquiescence in or assent to former like acts of his servant, or to the act in question, and there need be no actual contract of employment nor payment for services to create the relation of master and servant. 26 Cyc. 1581. (6) The constitutional question attempted to be raised for the first time in the motion for new trial comes too late, and will be regarded by this court as having been waived. Hartzler v. Met. St. Ry. Co., 218 Mo. 526; Lohmeyer v. Cordage Co., 214 Mo. 685; State v. Gamma, 215 Mo. 100; Milling Co. v. Blake, 242 Mo. 23; George v. Railroad, 249 Mo. 197.

Green & Green, W. J. Orr, J. D. Brooks, Hamlin & Seawell and Lewis Luster for respondents.

(1) The oral statement of the trial court, made in sustaining the motions for new trial and in arrest of judgment, cannot be considered, and this case stands as if said oral statement had not been made. R. S. 1909, sec. 2023; Hewett v. Steel, 118 Mo. 463; Taylor v. Scherpe, 47 Mo.App. 257; Pennowfsky v. Coerver, 205 Mo. 135. (2) On the record proper, we have an order sustaining a motion for a new trial which may have been sustained on grounds that rest peculiarly in the sound discretion of the trial court and on grounds not even specified in the motion for new trial. The higher courts never interfere with the order of the lower court granting a new trial unless this discretion is abused. Then, too, if there be any good reason appearing on the record for granting a new trial, the order of granting it will be upheld. Warren v. Cowden, 167 Mo.App. 493; Green v. Railroad, 211 Mo. 18; Smart v. Kansas City, 208 Mo. 162; Lovell v. Davis, 52 Mo.App. 342; Bank v. Armstrong, 92 Mo. 265; Farrell v. Transit Co., 103 Mo. 457. (3) The verdict of the jury is uncertain and ambiguous, and the trial court was justified in arresting the judgment, and granting a new trial because of the ambiguous verdict; and after the jury is discharged the court is not authorized to amend the verdict to conform to what he believes to be the intention of the jury, and the appellate court certainly could not assume such power. Newton v. Railroad, 168 Mo.App. 199; Haumuller v. Ackerman, 130 Mo.App. 387; Gaither v. Wilmer, 5 L.R.A. 757; Dyer v. Combs, 65 Mo.App. 148; Poulson v. Collier, 18 Mo.App. 604. (4) A constitutional question is involved in this cause; was properly raised in the trial court by the respondent, and so far as the records show the trial court may have granted a new trial because in his opinion the law relating to motor vehicles, which was the basis of plaintiff's action, is unconstitutional. The petition does not state facts sufficient to constitute a cause of action against either defendant, because based upon an unconstitutional law, and this question can be raised at any time. McGrew v. Railroad, 230 Mo. 511; Simpson v. Iron Works, 144 S.W. 895; Bank v. Bennett, 138 Mo. 494; Bennett v. Railroad, 105 Mo. 642; Logan v. Fields, 192 Mo. 66. (5) The statute relating to motor vehicles, as enacted by the Legislature of 1911, and found in Laws 1911, p. 322, is unconstitutional. Daugherty v. Thompson, 140 N.W. 615; Berry v. Motor Car Co., 141 N.W. 529; State ex rel. v. Ashbrook, 154 Mo. 375; Hannibal v. Railroad, 31 Mo.App. 334; State ex rel. v. Herman, 75 Mo.App. 346; State v. Granneman, 132 Mo. 326; State v. Tea & Coffee Co., 131 Mo. 634; Witzman v. Railroad, 131 Mo. 618; St. Louis v. Weitzel, 130 Mo. 616; State ex rel. v. Hedge, 135 Mo. 112. (6) Where a father purchases an automobile and maintains it as a family vehicle, with restricted uses, and a son had been cautioned not to use the car without first obtaining permission, and the son violating this injunction, uses the car without permission, upon an independent pleasure trip of his own accompanied by his friends but by no other member of the father's family, the father cannot be held responsible in case the son, while negligently driving the car, causes injury. Parker v. Wilson, 43 L.R.A. (N.S.) 87; Riley v. Roach, 37 L.R.A. (N.S.) 834; Danforth v. Fisher, 21 L.R.A. (N.S.) 93; Cunningham v. Castle, 111 N.Y.S. 1057; Neff v. Brandeis, 33 L.R.A. (N.S.) 933; Lotz v. Hanlon, 10 L.R.A. (N.S.) 202; Cohen v. Borgenecht, 144 N.Y.S. 399; Maher v. Benedict, 108 N.Y.S. 228; Patterson v. Cates, 152 F. 481; Slater v. Thresher Co., 5 L.R.A. (N.S.) 598; Stewart v. Branch, 95 N.Y.S. 161; Reynolds v. Buck, 103 N.W. 946; Doran v. Thomsen, 19 L.R.A. (N.S.) (N.J.) 335; Garretzen v. Duenckel, 50 Mo. 104; Evans v. Automobile Co., 121 Mo.App. 266; Maddox v. Brown, 36 Am. Rep. 336; Broadstreet v. Hall, 10 L.R.A. (N.S.) 933, and notes; Howe v. Leighton, 75 A. 102; Spelman v. Delano, 177 Mo.App. 28; Linville v. Nissen, 77 S.E. (N.C.) 1096; Tanzer v. Read, 160 A.D. 584, 145 N.Y.S. 708; McFarlane v. Winters, 155 P. 437; Heissenbuttel v. Meagher, 147 N.Y.S. 1087; B. & R. Co. v. McLeod, 7 D. L. R. 579; Farthing v. Strouse, 158 N.Y.S. 841; Loehr v. Abell, 140 N.W. 926; Armstrong v. Sellers, 62 So. 28; Schumer v. Register, 78 S.E. 731; Roberts v. Schanz, 144 N.Y.S. 841; University of Missouri Bulletin, Law Series 5 (December, 1914), p. 30; Case & Comment (August, 1915), p. 220; Harvard Law Review (November, 1914), p. 91. (7) Any verdict under the evidence in this case for more than nominal damages would be excessive, even in case of liability; and the instruction given on behalf of plaintiff on the measure of damages, is erroneous. Hickman v. Railroad, 22 Mo.App. 345; Knight v. Lead & Zinc Co., 75 Mo.App. 541; Schaub v. Railroad, 160 Mo. 93; McGowan v. Steel Co., 109 Mo. 533; Parsons v. Railroad, 94 Mo.App. 296; Goss v. Railroad, 50 Mo.App. 614; Coleman v. Lumber Co., 105 Mo.App. 254; Levhy v. Davis, 121 Mo. 227.

WOODSON J. Bond, P. J., absent.

OPINION

WOODSON, J.

The plaintiff brought this suit in the circuit court of Howell County against the defendants to recover $ 10,000 damages for the death of her husband, through the alleged negligence of the latter in so running and operating an automobile as to frighten the team of mules hitched to the wagon in which he was riding, and thereby causing it to run away and overturn the wagon, which fell upon and crushed and killed him.

The verdict and judgment were for the plaintiff, and on motion a new trial was ordered, from which order the plaintiff duly appealed the cause to the Springfield Court of Appeals, which reversed the judgment ordering the new trial and remanded the cause with directions to the circuit court to reinstate the...