Herrington v. Hoey

• Decision Date: 04 May 1940
• Docket Number: No. 36055.,36055.
• Parties: EMMER STEWART HERRINGTON v. WILLIAM J. HOEY, Doing Business as HOEY CARTAGE COMPANY, and DON S. HOPKINS, Appellants.
• Court: Missouri Supreme Court

139 S.W.2d 477

EMMER STEWART HERRINGTON v. WILLIAM J. HOEY, Doing Business as HOEY CARTAGE COMPANY, and DON S. HOPKINS, Appellants.

No. 36055.

Supreme Court of Missouri.

Division Two, May 4, 1940.

Appeal from Marion Circuit Court. — Hon. Edmund L. Alford, Judge.

AFFIRMED.

Roy Hamlin and Ben Ely for appellants.

(1) The court below erred in failing to direct a verdict for the defendants. (a) Plaintiff's own evidence convicts him of contributory negligence and hence a verdict should have been directed for both defendants. Collet v. Kuhlman, 238 S.W. 468; Thompson v. Frisco Ry. Co., 69 S.W. (2d) 936. If the night were clear, as testified to by plaintiff, he could have and should have seen the truck in time to stop before hitting it. Spencer v. Taylor, 219 Mich. 110, 188 N.W. 461. If the night were foggy, as testified to by some of plaintiff's witnesses, it was plaintiff's duty to drive slowly enough to avoid obstacles which he might come upon suddenly. Central Coal Co. v. K.C.S. Ry. Co., 215 S.W. 914; Lett v. Summerfield, 239 Mich. 699, 214 N.W. 939; Pietraszewski v. American Ry. Ex. Co., 202 N. Y. Supp. 262. (b) There is absolutely no proof that Hopkins was acting as the agent of Hoey and was within the scope of his authority as such, and therefore the court should have directed for defendant Hoey (the entire case was submitted as to him upon a supposed application of respondeat superior.) Farber v. Mo. Pac. Ry. Co., 32 Mo. App. 378; Guthrie v. Holmes, 272 Mo. 215; Chiles v. Metropolitan Life, 91 S.W. (2d) 164. (2) The learned court erred in permitting the introduction of Rule 56 of General Order 27 of the Public Service Commission of Missouri. This rule was not pleaded in the petition and its introduction was for the purpose of enabling plaintiff to bottom an assignment of negligence directly upon its violation. (a) Negligence cannot be based upon a rule of the Commission unless such rule is pleaded in the petition. Anderson v. Kraft, 129 S.W. (2d) 85. (b) This is because such rules, although having the force and effect of law in so far as persons to whom they apply are concerned, are not entitled to judicial notice and must be pleaded and proven as facts. Municipal ordinance cases. Cox v. St. Louis, 11 Mo. 431; Mooney v. Kennett, 19 Mo. 551; Peterson v. United Rys. Co., 270 Mo. 699; Hartley v. McKee, 86 S.W. (2d) 359. Cases involving administrative rules. Smith v. Shakapee, 97 Fed. 974; Robinson v. B. & O. Ry. Co., 222 U.S. 506; St. Louis v. Kruempeler, 235 Mo. 711; Banaka v. Mo. Pac. Ry. Co., 186 S.W. 7; Moss v. Wells, 249 S.W. 411. (3) The learned trial court erred in permitting Patrolman Kinder who was a layman to testify as to the legal effect of Public Service Commission travel orders. In other respects the instruction was broader than either the pleadings or evidence. Primmer v. Amer. Car & Foundry Co., 20 S.W. (2d) 587; Pevesdorf v. Union Electric Co., 74 S.W. (2d) 939.

Drain & Osburn and Gray Snyder for respondent.

(1) No reversible error was committed by the circuit court in refusing to direct a verdict for the defendants on the ground that plaintiff's own evidence convicts him of contributory negligence. (a) "In determining whether defendant's demurrer to evidence should have been sustained, whole evidence must be searched and plaintiff given benefit of all facts tending to support his theory, with every reasonable inference therefrom, while contradicted evidence favorable to defendant must be excluded." Clason v. Lenz, 61 S.W. (2d) 727; Mitchell v. Dyer, 57 S.W. (2d) 1082. (b) The circuit court did not commit reversible error in refusing to direct a verdict for defendant Hoey on the ground that there was no evidence that defendant Hopkins was his agent and acting within the scope of his employment at the time of the collision. Defendant Hoey was the holder of Interstate Permit No. T-2283, issued to him by the Public Service Commission of the State of Missouri. He was operating this truck as emergency equipment on a travel order of the Public Service Commission, and therefore defendant Hopkins was his agent and servant. Laws 1931, page 314, reads as follows: "Sec. 5274. The commission, in the exercise of the authority by this act vested in it, to license, supervise and regulate all motor carriers or contract haulers shall promulgate and mail or deliver to each holder of a certificate of convenience and necessity, interstate permit or contract hauler's permit hereunder, such safety rules and regulations as it may deem necessary to govern and control the operation of motor carriers or contract haulers over and along the public highways of this state, and the equipment to be used ..." This statute is constitutional. State v. Dixon, 73 S.W. (2d) 385. (2) The circuit court did not commit reversible error in permitting the introduction of Rule 56 of General Order 27 of the Public Service Commission of Missouri, which was plaintiff's Exhibit C. (a) If it is necessary to plead an order of the Public Service Commission of Missouri, then plaintiff maintains that such order was sufficiently pleaded in plaintiff's petition. (b) Courts of this State do and should take judicial notice of the rules promulgated by the Public Service Commission of Missouri pursuant to Section 5274, Laws 1931, page 314, and Laws 1935, page 321. These rules and regulations have the force of law; they become part of the law. Huckleberry v. Mo. Pac. Ry. Co., 26 S.W. (2d) 980; Hiatt v. Wabash Ry. Co., 69 S.W. (2d) 627; Givens v. Zerbst, 255 U.S. 18, 41 Sup. Ct. 227, 65 L. Ed. 475; Thornton v. United States, 271 U.S. 420, 46 Sup. Ct. 585, 70 L. Ed. 1013; Caha v. United States, 152 U.S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415; Jenkins v. Collard, 145 U.S. 546, 12 Sup. Ct. 868, 36 L. Ed. 812; Knight v. U.S. Land Assn., 142 U.S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974; Goulette's Admr. v. Grand Trunk Ry. Co., 93 Vt. 266, 107 Atl. 118; Cooper v. O'Connor, 99 Fed. (2d) 135; United States ex rel. Ohm v. Perkins, 79 Fed. (2d) 533; Ex parte Sackett, 74 Fed. (2d) 922. "Where the rules and regulations of administrative departments or tribunals and commissions of like nature are promulgated under express statutory authority, they may be said, in effect, to become part of the law of the jurisdiction and to require notice as such; ..." 1 Jones' Commentaries on the Law of Evidence (2 Ed.), sec. 388. (3) Under plaintiff's instruction, before the jury could find for the plaintiff, it had to find that defendants were negligent in two respects: leaving the truck and trailer parked upon the traveled portion of said road in the nighttime without any red light or other warning on the back end thereof, and leaving the truck and trailer upon the traveled portion of the road in the nighttime without placing a torch or red light on the traveled portion of said road at least 200 feet to the rear of said truck and trailer. This instruction is favorable to the defendants and is not broader than either the pleadings or the evidence. "If the instruction comes within the purview of the pleadings and evidence, it is not objectionable although it does not follow the exact language of the petition." Hamilton v. Standard Oil Co., 323 Mo. 531, 19 S.W. (2d) 688; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W. (2d) 867; Weise v. Harrison, 89 S.W. (2d) 149.

COOLEY, C.

Appeal by defendants from a judgment against them for $8500 in favor of plaintiff for personal injuries sustained by the latter in an automobile collision. Appellants, whom we may refer to as defendants, urge, among other contentions, that their demurrers to the evidence should have been sustained and verdicts directed for them, which contention necessitates a detailed statement of the facts.

Hopkins owned a "semi-trailer truck," consisting of tractor with truck body or "trailer" attached to and behind the tractor. The equipage is variously referred to in the record as "truck" or "trailer," the terms being used interchangeably and as meaning the same thing. It is claimed by plaintiff that Hopkins was Hoey's agent, acting within the scope of his authority, and that Hoey is liable under the doctrine of respondeat superior.

The accident occurred eight or nine miles west of Hannibal on Highway No. 36, an east and west highway, surfaced with an eighteen foot wide slab of concrete, with dirt shoulders on each side and having a black line running through the middle of the slab. Something less than a half mile east of the place of accident Highway 36 is joined by Highway No. 24 and from said junction the two highways are coincident westward to and beyond the place of the accident. The combined highway is referred to in the record as No. 36.

The accident occurred between 11:30 P.M. and midnight on May 25, 1936, — plaintiff said about 11:45 or 11:50 P.M. The truck had become stalled by reason of the breaking down of the left rear wheel of the trailer, making it impossible to move it, and was standing, headed west, with that left rear corner "jacked up," on the north half, its right side, of the slab, the left side of the trailer being five or six inches north of the black line, when plaintiff, driving west, alone, in a Ford coach automobile ran into it from behind, receiving the injuries for which he sued. He testified he was driving twelve to eighteen inches north of the black line.

Plaintiff, in his petition, charged negligence on the part of defendants in leaving the truck and trailer "parked" on the slab with no red light on the back thereof, and in leaving said equipage so parked with no torch or red light on the traveled portion of the road at least two hundred feet to the rear thereof. Defendants' amended answer was a general denial coupled with a plea of contributory negligence which, briefly and in substance, charged that plaintiff had insufficient lights on his car, failed to drive at a safe rate of speed under the existing conditions, failed to have his car under control, failed to keep a...