Humphrey v. Ownby

• Citation: 104 S.W.2d 398
• Decision Date: 23 April 1937
• Docket Number: No. 5770.,5770.
• Parties: HUMPHREY v. OWNBY et al.
• Court: Court of Appeal of Missouri (US)

104 S.W.2d 398

HUMPHREY v. OWNBY et al.

No. 5770.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Action by Novelle Humphrey against Robert Ownby and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Reid & Evrard, of Blythville, Ark., and Ward & Reeves, of Caruthersville, for appellant.

Von Mayes, of Caruthersville, Orville Zimmerman, of Kennett, and McKay & Peal, of Caruthersville, for respondents.

ALLEN, Presiding Judge.

This action was begun on April 6, 1935, by the filing of a petition in the circuit court of Pemiscot county, on which process was duly issued and served on the defendants, and thereafter said cause was transferred, on change of venue, to the circuit court of Dunklin county. Thereafter, on November 7, 1935, at and during the October term, 1935, of said circuit court, plaintiff filed her amended petition, which petition is in words and figures as follows, caption and signatures omitted.

"Comes now the plaintiff, leave of the court first having been obtained, and files this her amended petition herein and for her cause of action against the defendants states that on or about February 21st, 1935, she was riding in and driving an automobile, traveling in an easterly direction on and along a concrete public highway, a much used and traveled highway and known as the Caruthersville-Braggadocio Road in Pemiscot County, Missouri; that at the said time the defendant Robert Ownby was driving and operating a Chevrolet Coupe automobile owned by the defendant S. E. Juden and traveling in a westerly direction on and along said concrete highway; that as the said defendant Ownby, as the driver of the automobile occupied by him, reached the gravel road known as the Stubtown-Cottonwood Point Public Road, which said road runs north and south and intersects with said concrete highway running east and west at the point known as Stubtown, the said defendant Ownby turned to his left and off said concrete highway and on to said gravel road and started in a southerly direction thereon; that when the said automobile driven by the said defendant Ownby turned south on said gravel road the plaintiff was approaching said intersection of the said two highways, in the automobile driven by her, and that while the plaintiff was passing, or about to pass, the automobile so driven by the defendant, Ownby, the said defendant negligently stopped and reversed his automobile and negligently backed same into the said concrete highway and with great force and violence and negligently caused same to strike or to be struck by the automobile occupied by the plaintiff, on account of the negligent backing of said automobile by said defendant on to the said concrete highway as aforesaid, thereby causing the plaintiff to lose control of the automobile occupied and driven by her and cause same to turn over several times and also caused the injuries to the plaintiff as hereinafter set out.

"Plaintiff further states that the said defendant S. E. Juden at the time aforesaid and for many months prior thereto was the duly elected, qualified and acting Sheriff of Pemiscot County, Missouri, and that the defendant Robert Ownby was at said time and for many months prior thereto a Deputy Sheriff and was appointed and employed as such by the said defendant S. E. Juden, and that at said time and for many months prior to the said injuries to the plaintiff hereinafter set out, the said defendant Ownby was paid by the said defendant Juden as Deputy Sheriff a fixed salary per month and the said Juden took and retained for himself all of the fees, emoluments and compensation otherwise coming to the office of sheriff, and that in addition to the salary paid to the said Ownby by the said Juden he also supplied and furnished said Ownby the automobile described as aforesaid as owned by the defendant Juden and for the use of said Ownby in his work and in the performance of his duties as Deputy Sheriff and the said Juden also supplied and furnished all of the oil, gasolene, and other up-keep for said automobile, and that the said Ownby was using the said Juden's automobile at said time under said arrangement and employment and as authorized by the said Juden, and that the said Juden thereby became and was and is jointly liable and jointly responsible with the said Ownby for the damages and injuries to the plaintiff as hereinafter set out, and that the said Juden thereby became and was and is a joint tort feasor with the said Ownby; and that while so driving the said Ownby was on his way to investigate a reported murder within Pemiscot County, Missouri, and to make an arrest of the alleged murderer.

"Plaintiff further states that it was the duty of defendants in the operating and running of said Chevrolet Coupe automobile to exercise the highest degree of care and which the plaintiff states that the defendants failed to do, and were guilty of negligence in the operation of said automobile in the manner following:

"(1) That the said driver of the said Chevrolet Coupe automobile negligently ran and operated in a backward movement from the gravel road into said concrete highway against or immediately in front of the automobile occupied and driven by the plaintiff and that said driver at said time negligently failed to look or to see the automobile occupied by the plaintiff before backing same on to said concrete highway.

"(2) That at the time the driver of said Chevrolet Coupe automobile started to back same into said concrete highway the plaintiff and the automobile occupied by her were in a position of imminent peril and danger and unable to extricate herself therefrom and that the driver of said Chevrolet Coupe automobile saw or could have seen by the exercise of the highest degree of care the plaintiff and the automobile occupied by her, and that they were in immediate peril and danger, and in time, by the exercise of the highest degree of care, for the said driver to stop said automobile before backing same into and against the automobile occupied by the plaintiff and thereby could have prevented the injury to the plaintiff as hereinafter set out.

"Plaintiff states that as a direct result of the negligence of the defendants as aforesaid the said Chevrolet Coupe automobile collided with the automobile occupied by the plaintiff and as a direct result of the said negligence of the defendants as aforesaid the plaintiff received serious and permanent injuries, in that she received bruises and contusions of the muscles, ligaments and flesh of the left leg and left side and her back, including the muscles and bones thereof, were bruised, mashed, wrenched and dislocated; and there was a separation and displacement of the sacro iliac joint on the left side and a separation of the right sacro iliac joint; that there was a separation of the symphis pubis joint with a displacement upward of the left pubis, and separation and deviation of the cocyx at the sacro-cocygeal joint to the left; that her sacral and lumbar nerves were greatly shocked and injured, and that as a direct result of said injuries, her left side is paralyzed, and the joints, bones and muscles of her back and of her entire left side and the left leg are greatly impaired in their usefulness, and she has been rendered a cripple for life, and from all said injuries the plaintiff has suffered great physical pain and mental anguish, and will continue to suffer in the future; that the said injuries are permanent, and that by reason thereof and as a direct result of same, the plaintiff's nervous system is greatly and permanently injured and impaired; that the plaintiff ever since said injuries, and by reason thereof, has been confined in a hospital and under treatment of physicians and surgeons and nurses, and that she has paid and obligated herself to pay large sums of money for necessary doctors' bills, nursing, medicines and hospital services, and will in the future be required to incur and pay out large additional amounts of money for necessary doctors' bills, nursing, medicines and hospital services, and that by reason of said injuries, she has been rendered incapable of normal pregnancy or childbirth.

"Plaintiff further states that she is and has been for several years a professional nurse, and her earning capacity as a nurse is and has been at least $150.00 per month, but that on account of her injuries aforesaid, she has been deprived of the earnings of her said profession since the date of said injuries, and that she will continue in the future to be so deprived, or at least her earning capacity will be greatly impaired and lessened, by reason of said injuries.

"Plaintiff further states that all of her injuries aforesaid were directly caused by the negligence as aforesaid of the defendants and as a direct result thereof she has been damaged in the sum of Seven Thousand Five Hundred Dollars ($7,500.00).

"Wherefore, premises considered, plaintiff prays judgment against the defendants for the said sum of Seven Thousand Five Hundred Dollars and for her costs in this behalf expended."

Thereafter, on November 18, 1935, the defendant, S. E. Juden, filed his demurrer to the plaintiff's amended petition; and on February the 25th the circuit court entered its finding, order, and judgment in said cause, sustaining the demurrer to plaintiff's amended petition, and plaintiff thereupon dismissed said cause of action as to defendant Robert Ownby, and he was finally discharged therein, and the plaintiff refusing further to plead in said cause and electing to stand on her amended petition, the court entered its order and judgment sustaining the demurrer as to the defendant S. E. Juden and dismissing the cause as to defendant S. E. Juden.

Thereafter, on February 26th plaintiff filed her motion for new trial, which was by the court overruled, and this cause is now before...