Hedrick v. Hurst

• Decision Date: 23 April 1937
• Docket Number: No. 5796.,5796.
• Citation: 104 S.W.2d 392
• Parties: HEDRICK v. HURST.
• Court: Missouri Court of Appeals

104 S.W.2d 392

HEDRICK v. HURST.

No. 5796.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.

"Not to be published in State Reports."

Action by C. R. Hedrick against Francis Hurst and H. Hurst, which was dismissed without service as to defendant Francis Hurst. From a judgment for plaintiff on remaining defendant's appeal from a justice court, remaining defendant appeals.

Affirmed.

Roy Coyne, of Joplin, for appellant.

J. D. James and Loyd E. Roberts, both of Joplin, for respondent.

FULBRIGHT, Judge.

This cause originated by the filing of a petition in a justice court in Jasper county by plaintiff to recover damages to his Studebaker automobile in the amount of $94.24, the result of being struck by a Ford truck driven by one Francis Hurst on U. S. Highway No. 66, east of the city of Galena in Cherokee county, Kan., about the 28th day of April, 1935. The suit was originally against Francis Hurst and H. Hurst. Failing to secure service on Francis Hurst, plaintiff dismissed as to him. Trial in the justice court resulted in a verdict for plaintiff, and defendant appealed to the circuit court, where trial was had resulting in a verdict for plaintiff, and defendant appeals to this court.

No answer was filed by appellant, H. Hurst, and there is no controversy over the pleadings. There is no denial that the collision was a result of negligence on the part of Francis Hurst, the driver of the Ford truck; nor is there any contention that respondent was negligent. The only assignments of error seriously urged by appellant are that the court erred in overruling his demurrer at the close of all the testimony, and that the court erred in admitting incompetent, irrelevant, and immaterial evidence offered by the respondent, and especially as to statements of Francis Hurst immediately following the accident. These issues will be considered in their order.

It is a well settled rule, requiring no citations, that in passing upon a demurrer to the testimony the court must view the testimony and all reasonable inferences that may be drawn therefrom in the most favorable light to plaintiff and, if there is any contradiction in the testimony, even of the plaintiff's witnesses, then we are under the duty to consider only that which is most favorable to plaintiff. Appellate courts are in no sense concerned with the weight of the testimony. Frankel v. Hudson, 271 Mo. 495, 196 S.W. 1121. In passing upon this issue the sole question for this court to determine is whether or not plaintiff made a prima facie case. We therefore set out the testimony of C. R. Hedrick, respondent, relative to the conversation had with appellant, H. Hurst, at the scene of the accident and immediately following the accident. Appellant arrived while both parties were there and before the cars had been moved. He asked what had happened, and, upon being informed, said to respondent: "A. But he says, `this boy worked for me, and he hasn't got a cent, but I will take care of your car, but,' he says, `there is a man that owes me over at Columbus, Kansas, owes me a bill,' he says, `you take it over there and I will just have him deduct it from this bill.'

"Q. Harry Hurst made those statements? A. This defendant here, yes. He says, `I will have it deducted from my bill.' I says, `I can't do that, I wouldn't want to drive this car in the condition it is in that far, and I would have to go back after it anyway, and,' I said, `Charlie Jobson does my work,' I says, `Why not take it there?' He says, `All right, you take it in to Jobson's then, and tell Jobson that I will be in to make arrangements to pay for it this evening. * * *

"Q. Now, was there anything said up there at the scene of the accident between you and Francis and Harry Hurst about Francis working at Harry's place? A. He (Harry Hurst) told him (Francis) to go and take that truck on up to the lot where it belonged and that was all, that he would settle that.

"Q. That was the statement that Harry made to Francis? A. Yes, to Francis and that is when Francis disappeared out of the scene."

H. Hurst, appellant, on cross-examination testified, in substance, as follows: My brother has been around there quite a bit, but has never worked for me in any capacity as a workman. He might have run some errands for my wife. I don't know when Mrs. Hurst left home that day. She called me from Galena about 6 o'clock and I went over and brought her home. So far as I know the license plates were never taken off the shelf where I put them. I do not know that they were on the truck. I didn't think about them being there and I didn't notice. I told Mr. Hedrick there was a man at Columbus, Kan., who owed me quite a sum of money and I would like to have him place a bid on fixing his car in case we got together fixing it.

It is also disclosed from the testimony that, after the car was repaired, respondent and Charlie Jobson went to appellant's place of business where they saw Francis Hurst at work. Appellant, upon being advised that respondent and Jobson were there to see him about the bill for repairing respondent's car, said: "You go back to town and I will come in to see you this evening." It was also disclosed that the license tag on the truck involved in the collision and driven...