Hays v. Hogan

• Decision Date: 28 March 1914
• Docket Number: No. 1226.,1226.
• Citation: 165 S.W. 1125,180 Mo. App. 237
• Parties: HAYS v. HOGAN et al.
• Court: Missouri Court of Appeals

165 S.W. 1125

180 Mo. App. 237

HAYS v. HOGAN et al.

No. 1226.

Springfield Court of Appeals. Missouri.

March 28, 1914.

On Motion for Rehearing and Motion to Certify to Supreme Court, April 27, 1914.

1. TRIAL (§ 333)—VERDICT—CORRECTION BY COURT.

A verdict for plaintiff "at the sum of $6,500.00 six thousand $5.00 dollars" was ambiguous as to the amount above $6,005, and the trial court should not have rendered judgment upon it in its ambiguous form, but should have first corrected it.

2. MASTER AND SERVANT (§ 330)—INJURY TO THIRD PERSON—BURDEN OF PROOF.

Where, in an action against a father for the death of plaintiff's husband caused by the negligent operation of an automobile by the son, it was admitted that the father was the owner of the automobile, the burden was upon him to prove that the son was operating the car without his consent.

3. MASTER AND SERVANT (§ 330)—ACTION FOR INJURY TO THIRD PERSON—SUFFICIENCY OF EVIDENCE—EXISTENCE OF RELATION.

In an action against a father and son for the death of plaintiff's husband caused by the negligent operation of the father's automobile by the son, evidence held to sustain a finding that the son was using the automobile with the consent of the father.

4. MASTER AND SERVANT (§ 301)—LIABILITY FOR INJURY TO THIRD PERSON.

Where an adult son, living with his father as a member of the family used the father's automobile, purchased for general family use, with the father's express or implied consent, on a trip purely for his own pleasure and in no way connected with any business of the father, the relation of master and servant existed, and the father was liable for the death of plaintiff's husband caused by the negligence of the son in so operating the car.

5. DEATH (§ 79)—NOMINAL DAMAGES.

In an action for the death of plaintiff's husband caused by the negligence of defendant, plaintiff was not restricted to the recovery of merely nominal damages because there was no evidence of damages, since they may be measured by the experience of the jury enlightened only by the age and condition in life of deceased.

6. CONSTITUTIONAL LAW (§ 43)—WAIVER OF DEFECTS.

Where plaintiff's right of action was based upon a statute and the character of the action was disclosed by the petition and instructions, defendant waived any question as to the constitutionality of the statute by delaying to make it until the motion for new trial.

7. MASTER AND SERVANT (§ 330)—ACTION FOR INJURY TO THIRD PERSON—BURDEN OF PROOF.

In an action for the death of plaintiff's husband caused by the negligence of defendant's son in the operation of defendant's automobile, it was sufficient prima facie to show that defendant was the owner of the automobile without proving affirmatively that the son was defendant's servant; the burden being on defendant to show that the son was not his agent.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by Bertie A. Hays against R. S. Hogan and J. E. Hogan. From an order granting defendants' motion for new trial, plaintiff appeals. Reversed and remanded. Motion for rehearing overruled. Transferred to Supreme Court.

Wilfley, Wilfley, McIntyre & Nardin, of St. Louis, and O. L. Haydon, of West Plains, for appellant. Green & Green, of West Plains, W. J. Orr, of Springfield, J. D. Brooks, of Alton, and Hamlin & Seawell and Lewis Luster, all of Springfield, for respondents.

ROBERTSON, P. J.

This is an action by plaintiff as the widow of one Mack Hays, deceased, against the defendants, father and son, to recover for the death of plaintiff's husband on account of the negligence of J. E. Hogan, the son, in operating an automobile on one of the public highways of Howell county, causing a team to run away with a wagon in which the plaintiff's husband was riding, throwing him out and killing him. A trial was had on a change of venue in Greene county before the court and a jury which resulted in a verdict (the original of which has been, as is authorized by section 2053, R. S. 1909, submitted to and examined by us) in the following form, as near as we can give it: "We, the jury, find the issues in favor of the plaintiff and against both defendants, J. E. Hogan and R. S. Hogan, and assess her damages at the sum of $6,500.00 six thousand $5.00 dollars." Upon this verdict judgment was entered in the language and form thereof. Within four days after the return of said verdict, the defendants filed their motions for new trial and in arrest of judgment, complaining, among other things hereinafter noted, of the verdict and judgment on account of its form as aforesaid. The motions were sustained, and the plaintiff has appealed.

The plaintiff concedes that the verdict is ambiguous as to the amount above, $6,005, and we shall so treat it and direct judgment to be entered thereon for that amount, which the holding in Shaefer v. Mo. Pac. Ry. Co., 98 Mo. App. 445, 456, 72 S. W. 154, authorizes in such cases as this, irrespective of the desire of the parties to the litigation.

The trial court should not have permitted judgment to be entered on this verdict in its ambiguous form and thereby render the judgment as faulty as the verdict. Judgment should have been entered for whatever amount the court considered correct, so that in the event of no appeal, if an execution should be issued thereon, the amount mentioned therein would be certain. If the trial court under such circumstances incorrectly determines the amount which should prevail, this error can be corrected on appeal.

About one year prior to the accident the defendant, R. S. Hogan, the father, purchaser an automobile for the use of himself and his family, which consisted of several members, including the defendant J. E. Hogan, and two other sons, all of whom learned to operate the machine; but the father had not learned to operate it. The defendant son had reached his majority, was married, worked in the bank of which his father was president, and lived with his father's family at West Plains as a member thereof, paying no board. The father testified that when he purchased the machine none of the children was to use it without his or his wife's consent, but that at no time had any of them been refused the use of it when requested. The defendant son used the machine on many occasions prior to the date of the accident. On May 27, 1912, the day on which the accident occurred, the father was absent from the county. The defendant son was working in the bank as usual. That afternoon the machine was left in front of the bank by the mother, and at about 4:30 in the afternoon the defendant son and other employés in the bank took the automobile and went into the country a few miles for a pleasure ride, and returning home, running at a high rate of speed, they approached the wagon in which the plaintiff's husband was riding, to which was hitched a team of mules headed toward the automobile. When within a short distance of the automobile, the mules, which had turned to the right and out of the beaten portion of the road, began to scare, and the plaintiff's husband, who was riding in the rear seat, stood up in the wagon, signaled, and called to the occupants of the automobile to stop. They did not, however, slacken their speed, and as they passed the mules lunged forward, ran away, and threw plaintiff's husband out of the wagon, injuring him so that he died within a few minutes thereafter. We have referred to the facts most favorable to plaintiff, as it is our duty to do in a case of this character, although there is testimony to the contrary.

When the ownership of the machine was conceded, the presumption arose that when defendant's son was using it he had his father's consent therefor, and the burden was then cast upon the father to prove to the satisfaction of the jury that no consent was given. Shamp v. Lambert, 142 Mo. App 567, 575, 121 S. W. 770; Marshall v. Taylor, 168 Mo. App. 240, 246, 153 S. W. 527. The facts disclosed by the testimony tended strongly to prove that the son had the actual or implied consent of the father and more certainly of the mother. The machine was left standing in front of the bank, where the son was employed, having been left there by his mother, and there being no showing that she intended to or did return there for it, and he was permitted without objection from any one, so far as the testimony discloses, to take it and go upon a pleasure trip with his friends and no doubt the friends of the father. Considering this case upon its merits in the light of the facts disclosed, and keeping in mind the fact that the father was the owner of the automobile, that the son was of age and resided with him as a member of his family, that the father was not operating the machine when the accident occurred, but that it was being operated by the son with his implied consent at least, we have a state of facts covered in all of its phases by holdings of the other Courts of Appeal in this state to the effect that the father should be held liable together with the son for the injuries resulting on account of the son's negligence in so operating the machine.

The St. Louis Court of Appeals, in Winfrey v. Lazarus, 148 Mo. App. 388, 128 S. W. 276, held the owner liable where the owner of an automobile was absent and the owner's daughter, who was married and lived away from her father (although at this particular time she was at her father's home occasionally looking after it during his and her mother's absence), requested her father's chauffeur to meet her at a certain point, and while he was on his way to that place, by reason of his negligent operation of the machine, caused the damages therein sought to be recovered. The liability was based on the theory that the chauffeur was acting within the course of his employment as the agent and servant of the automobile owner.

A judgment was sustained for the plaintiff in the case of Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, in the Kansas City ...