Howard & Brown Realty Co. v. Berman

• Decision Date: 03 December 1922
• Docket Number: No. 3085.,3085.
• Court: Missouri Court of Appeals
• Parties: HOWARD & BROWN REALTY CO. v. BERMAN

245 S.W. 606

212 Mo. App. 401

HOWARD & BROWN REALTY CO. v. BERMAN

No. 3085.

Springfield Court of Appeals. Missouri.

December 3, 1922.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by the Howard & Brown Reality Company against Paul Berman and another. Judgment for plaintiff, and defendant Berman appeals. Reversed and remanded.

Owen & Davis, of Joplin, for appellant.

H. S. Miller, of Joplin, for respondent.

BRADLEY, J.

Plaintiff (respondent here) has filed a motion to affirm because, as recites the motion:

"The bill of exceptions, as set forth in the abstract of record filed by the appellant herein, fails to show the order, if any; overruling the motion for a new trial and the saving of exceptions thereto by appellant, if any, the filing of an affidavit for appeal, if any, the form of affidavit for appeal, the order allowing an appeal, if any, the order fixing the time for filing bill of exceptions, if any, the signing of the bill of " exceptions on the part of the judge, and the fling thereof, and neither does the record show the saving of exception to order overruling motion for a new trial."

Appellant's abstract substantially complies with the provisions of our rule 15 (181 S. W. vi), and the motion to affirm is overruled.

Plaintiff brought suit against Martin Stein, a minor, and Paul Berman to recover damages to its automobile resulting from a collision with Berman's automobile. We assume that plaintiff dismissed as to Stein, as the judgment is against Berman. The cause was tried to a jury, and the result was a verdict and judgment for plaintiff in the sum of $200. Failing to get a new trial on motion, defendant appealed.

Plaintiff's automobile was being driven north on Byers avenue, in the city of Joplin, by Thomas Flynn. Defendant's car was being driven west on Second street by Martin Stein. Plaintiff alleges that on March 2, 1921, his car was being driven north on Byers avenue over and across Second street; that at or about the same time defendant's car was being driven west on Seeded street by Martin Stein, "who was then and there the agent and servant of the defendant Paul Berman, at the instance and request of said defendant Paul Berman, and on business for the said Paul Berman." Plaintiff pleaded certain city ordinances as to what vehicles had the right of way and as to speed, and alleged that:

"The driver of plaintiff's said automobile, while going north on Byers avenue, and while crossing said Second street on Byers avenue, was driving plaintiffs said car at a rate of speed not to exceed 10 miles per hour and was in the exercise of reasonable care for his own safety and the safety of others, and upon entering said Second street at said time, looked for the approach of automobiles or other vehicles from either direction, and kept a constant lookout and exercised such reasonable care as prudent persons would ordinarily exercise under like or similar circumstances, and that he did not see the said car of said defendant Paul Berman, being driven by said defendant Martin Stein, until he was about to cross the street car track on said Second street, at which time he observed the car of defendant as aforesaid, approaching from the east toward the west at the alley immediately east of said Byers avenue, and that thinking and believing that he could safely do so, the plaintiff's said driver of plaintiff's said car, proceeded to cross Second street, and shortly thereafter, upon looking again in the direction from which the said car of the defendant Paul Berman was being driven as aforesaid, he saw that the said car of the said defendant Paul Berman was being driven at said time and place in a careless, negligent, and reckless manner, and at a high and dangerous rate of speed, to wit, about 30 or 35 miles per hour, and that the driver of plaintiff's said car, exercising due and proper care, endeavored to get out of the way of said car of defendant Paul Berman, being driven as aforesaid, but, in spite of all of his efforts to do so, did not and could not succeed in so doing, and the said driver of the said car of the defendant Paul Berman, carelessly, recklessly and negligently, in violation of the said traffic ordinances of the city of Joplin, and in violation of the law of the state of Missouri, with great force and violence, drove said car of said defendant Paul Berman, upon and against the plaintiff's said car."

The answer was a general denial and contributory negligence.

We will state, in the course of the opinion, such of the facts as are necessary to understand the propositions presented. Defendant predicates error upon the failure of his demurrer at the close of the case, upon the instructions and the admission of evidence. Defendant's demurrer was bottomed on the proposition that there was no substantial evidence tending to show that Martin Stein was defendant's agent and on a mission for defendant at the time of the collision. Thornton L. Brown, a member of plaintiff company, testified that he had a conversation with defendant respecting the collision, and that defendant said:

"I am in for it. I have had a lot of trouble. Here is the way it happened. I was doing some work at the house, and I needed a couple of bolts and didn't have them there, and Martin happened to be standing there and I says, `Martin, jump in my car and go down to Guenrich's and get a couple of bolts and hurry back.'"

Defendant gives the following version of the trip after the bolts:

"I had ordered what they call an `Irish Mail' for Mr. Stein's little girl, by his request, and he paid for it. He asked me to order it. After it came in we found that the bolts were missing, and I went down to Guenrich's and got the bolts that I thought was sufficient for the car, and brought them home. Mr. Stein asked me to help put it together. Stein paid for the bolts. The car was over at Mr. Stein's home and his boy brought it over to my garage, and we were putting it together, and young Stein says—young Stein asked the use of my car to get a sweeper for his mother, and I granted him permission to do so. We live right across the street from each other. The young man had been driving his father's car for about a year, I think, probably longer than that. When he asked me for the use of the car to go after this sweeper, I said, `Martin, this one bolt won't fit this car.' He says, `All right; I will go and change them at Guenrich's,' and he brought his mother's sweeper home and these bolts, and they did not fit. He went out and got in the car and drove down and got the other bolts. "Q. That was when the accident occurred? A. Yes, sir; the second time he used the car. "Q. The bolts were not yours? A. No, sir; they were not. The car I was fixing was Dave Stein's, the father of Martin, for his little girl."

Defendant denied having the conversation with Brown.

On cross-examination defendant testified:

"Young Stein did have my car, I told him he could have it, and he went down to Guenriche and on his way "Jack the accident happened. He went after bolts. No I did not tell Brown I sent the boy down after some bolts. I said this accident occurred through generosity on my part assisting some one else."

Martin Stein, the lad driving defendant's car when the collision occurred, gave this version:

"Mr. Berman and myself were fixing a small kiddy car for my sister was helping me, and we noticed there were some bolts gone from the car, some bolts lacking, and I asked him if I could use his car to go down and get these bolts because I had to get a sweeper for my mother right away, and he gave his permission to use the car. Yes, I went after the sweeper for my mother and used the car. This was not the trip in which the collision was had. When I came back I brought the sweeper for my mother and these bolts wouldn't fit, and I had to go back another time, and it was this trip coming back that I had the accident.

"Q. You were not on any business for Mr. Berman at all?

"Mr. Miller: object to that.

"The Court: Sustained.

"Mr. Owen: Except.

"Q. Who were the bolts for? A. Well, Mr. Berman bought it for us. I got the bolts at Guenrich's.

"Q. Who for, your father, yourself, or did you pay for them, or what about it? A. Mr. Berman paid for them, but I suppose he intended—

"Q. Well the bolts you went down after the last time when the car was first gotten and the bolts gotten, you mean Mr. Berman paid for it as far as you know? A. Yes.

"Q. Then you went down after these bolts under the circumstances you have told the jury, isn't that, right? A. Yes, sir; the car was for my sister, and we were trying to put it together. The car...