Howard & Brown Realty Company v. Berman
| Decision Date | 06 December 1922 |
| Parties | HOWARD & BROWN REALTY COMPANY, Respondent, v. PAUL BERMAN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jasper County.--Hon. Grant Emerson Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Owen & Davis for appellant.
(1) The relationship of master and servant or that of principal and agent from the mere fact that appellant was the owner of the car driven by Stein and which collided with the car of plaintiff. Hayes v. Hogan, 273 Mo. 1, 24, 25; Guthrie v. Holmes, 272 Mo. 215, 233; Berry on Automobiles (2 Ed.) sec. 615, page 694; Kilroy v. Crane Agency Co., 203 Mo.App. 302. (2) It is based upon negligence at common law. The cause of action stated in the petition is based upon a violation of city ordinances. In other words, plaintiff sues upon one cause of action, and the jury as instructed to find upon another and different cause of action. Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 645. (3) The court committed error in giving, at the request of plaintiff Instruction No. 2, because it is a mere abstract declaration of law, and is not explanatory of any other instruction in the case. Sutter v. Kansas City, 138 Mo.App. 113; Edwards v. Lee, 147 Mo.App. 38. (4) Instructions Nos. 1 and 2, when taken and considered together, do not properly declare the law, because the jury was not required to find that the driving of defendant's car at a "high rate of speed and in a careless and negligent manned" was the cause of the collision and injury, or that the driving of defendant's car "at a rate of speed in excess of ten miles per hour" while crossing the intersection of Second Street and Byers Avenue was the cause of the collision. Battles v. Railways Co., 178 Mo.App. 596; Ashby v. Gravel Road Co., 99 Mo.App 185. (5) The fact, if it be a fact, that the car of defendant was operated at a "high rate of speed in a careless and negligent manner," or that it was operated over the intersection of Second Street and Byers Avenue "at a rate of speed in excess of ten miles per hour," raises no presumption that the collision was caused thereby. Battles v. Railways Co., 178 Mo.App. 614, 615; Schmidt v. Transit Co., 140 Mo.App. 187; Warner v. Railway Co., 178 Mo. 134; Bluedorn v. Railroad, 121 Mo. 258. (6) The court committed error in admitting testimony of the witness Brown as to alleged admissions of defendant as to whose fault caused the accident, and the alleged promise of defendant to pay the damages to plaintiff's car, for the reason that such admissions, if any, and such promise, were based upon hearsay, and was therefor inadmissible. 22 Corpus Juris, sec. 327, page 299; Austin Elec. R. Co. v. Faust, 133 S.W. 449; Maher v. Ins. Co., 96 N.Y.S. 496; Merchants Despatch Co. v. Trans. Co., 89 Ill. 152; Conkling v. Weatherwax, 181 N.Y. 258, 73 N.E. 1028. (7) The judgment is for the wrong party, and appellant's motion for a new trial should have been sustained, because the evidence does not show that the relationship of principal and agent or that of master and servant existed between Martin Stein and appellant at the time of the accident, and such relationship could not be presumed from the mere fact of the accident and that appellant was the owner of the car driven by Stein at the time of the accident. Hayes v. Hogan, 273 Mo. 1, 24, 25; Guthrie v. Holmes, 272 Mo. 215, 233; Kilroy v. Crane Agency Co., 203 Mo.App. 302; Berry on Automobiles (2 Ed.), sec. 615, page 694.
H. S. Miller for respondent.
The motion of respondent to affirm judgment is not well taken. Appellant's abstract of the record, page 6, recites in a narrative form the filing of motion for new trial, the overruling thereof, the filing of affidavit for appeal, the granting of the appeal, the granting of time in which to file bill of exceptions, the granting of an extension of time in which to file bill of exceptions, and the filing of bill of exceptions, after same had been signed and sealed. State ex rel. v. Broaddus, 239 Mo. 359; State ex rel. v. Broaddus, 234 Mo. 331; State ex rel. v. Smith, 172 Mo. 446; Brickets v. Hart, 150 Mo. 64; McDonald & Co. v. Hoover, 142 Mo. 484; State ex rel. v. Broaddus, 216 Mo. 336; Martin v. Hoover, 182 Mo. 225.
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 filing 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, 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 case 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 Second Street by Martin Stein "who was then and there the agent and servant of the defendant Paul Berman, at that 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 plaintiff's said car at a rate of speed not to exceed ten 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 thirty or thirty-five 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 violation, 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'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: Defendant gives the following version of the trip after the bolts: ...
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