Irwin v. McDougal

• Decision Date: 01 July 1925
• Citation: 274 S.W. 923,217 Mo.App. 645
• Parties: MAUD IRWIN, Respondent, v. ARCH McDOUGAL and MRS. ARCH McDOUGAL, Appellants.
• Court: Missouri Court of Appeals

274 S.W. 923

217 Mo.App. 645

MAUD IRWIN, Respondent, v. ARCH McDOUGAL and MRS. ARCH McDOUGAL, Appellants.

Court of Appeals of Missouri, Springfield

July 1, 1925

Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED (on condition).

Judgment reversed and cause remanded.

Grover C. James, of Joplin, and Mosman, Rogers & Buzzard, of Kansas City, for appellants.

(1) Plaintiff's petition did not state facts sufficient to constitute a cause of action against defendant Arch McDougal. There was no allegation that the car was driven by his agent or that the driver was within the scope of the employment or in the furtherance of his business or interests. Drolshagen v. Railroad, 186 Mo. 258; Borah v Motor Co., 257 S.W. 147; Anderson v. Nagel, 259 S.W. 858; Llywelyn v. Lowe, 239 S.W. 538; Bolman v. Bullene, 200 S.W. 1068; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Guthrie v. Holmes, 272 Mo. 215 198 S.W. 854. (2) The court erred in refusing to sustain the separate demurrers offered by the defendants at the close of plaintiff's evidence. 1. Because there was no allegation or proof of agency of the driver of the car. 2. Because there was neither allegation nor proof that the driver was operating the car in the course of her employment or in the furtherance of the interests of defendant Arch McDougal. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Drolshagen v. Railroad, 186 Mo. 258; Borah v Motor Co., 257 S.W. 147; Anderson v. Nagel, 259 S.W. 858; Llywelyn v. Lowe, 239 S.W. 535; Kilcoyne v. Metz, 258 S.W. 4; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Raming v. Met. St. Ry., 157 Mo. 509; Snyder v. H. & St. J. R. R., 60 Mo. 413; 27 Cyc., page 1571. (3) The mere ownership of the car did not make him liable if the mother was not his agent and about his business but was using the car for her own pleasure or business with his permission. Curtis v. Harrison, 253 S.W. 474; Mayes v. Field, 217 S.W. 589; Bright v. Thacher, 200 Mo.App. 301, 215 S.W. 788; Mast v. Hirsh, 199 Mo.App. 1, 202 S.W. 275; Buskie v. Januckowsky, 218 S.W. 696. 4. There was no substantial evidence of negligence on the part of the driver of the car and hence the court erred in submitting the case to the jury as to defendant Mrs. McDougal (See authorities cited under point 4). 5. Plaintiff's testimony showed that as a matter of law she was guilty of negligence which directly contributed to her injury. Berry's Law of Automobiles (3 Ed.), sec. 520; Leopard v. Railways Co., 214 S.W. 268; Fechley v. Traction Co., 119 Mo.App. 358, 96 S.W. 421; Rebillard v. Ry. Co., 216 F. 503; Rappaport v. Roberts, 203 S.W. 676; Burton v. Pryor, 198 S.W. 1120. (3) The court erred in refusing to direct the jury to return a verdict in favor of defendants. See authorities cited under point 2. (4) 1. The court erred in permitting plaintiff's witnesses Sifferman, Goodman and Mrs. Garner to testify as to the rate of speed of the automobile. Priebe v. Crandall, 187 S.W. 605; Wilson v. Flour Mills, 245 S.W. 205; Bibb v. Grady, 231 S.W. 1023; Seager v. Foster, 167 N.W. 681; Pease v. Cochran, 173 N.W. 158. 2. The court erred in the admission of improper and incompetent evidence as to the medical, surgical and hospital bills incurred by the plaintiff. Twedell v. City of St. Joseph, 167 Mo.App. 547, 152 S.W. 432. (5) The court erred in giving to the jury plaintiff's instruction 1. Warrington v. Bird, 186 Mo.App. 385, 151 S.W. 754; Fleischman v. Polar Wave Ice Co., 148 Mo.App. 17, 127 S.W. 660. (6) The court erred in overruling defendants' motion for a new trial.

M. R. Lively, of Webb City, for respondent.

The appellants have signed six specifications of error. The first, that the petition does not state facts sufficient to constitute a cause of action against defendant, Arch McDougal. Under the record of this case the defendants answered petition and waived any defect in the petition except its failure to state any cause of action; all reasonable intendments being adjudged in favor of the petition after verdict and judgment. Hoover v. City of Fulton, 177 Mo.App. 95; Angle v. Churchill, 246 Mo. 100. Where the petition is capable of amendment and imperfectly pleaded cause if sufficient to bar another action for the cause, the petition will be held good on verdict. State ex rel. Gardner v. Welch, 177 Mo.App. 60. The petition is sufficient in action for injuries caused by the servant, defendant, Arch McDougal, after verdict to prove that a servant was acting within the scope of employment. Fleishman v. Polar Wave Ice and Fuel Co., 163 Mo.App. 416. Where evidence in record supports the judgment appellate court will not reverse. La Rue v. Bloch, 255 S.W. 321; Googen v. Modern Woodmen, 194 Mo.App. 666. Two or more jointly hiring a vehicle for common purpose, agreeing one shall drive it, is joint adventure in which there is common responsibility for negligence in its operation. Coleman v. Bank (Conn.), 124 Mo.App. 224. Guest and driver of automobile have not engaged in joint enterprise. Meyers v. Southern Pacific Railway Co., 218 P. 284. If two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, expressed or implied, to act for all in respect to the control of the means or agency implied to execute such common purpose, the negligence of one in the management thereof will be imputed to the others. 20 R. C. L., page 122; 29 Cyc., page 543. A petition which can be amended to state a cause of action without changing the cause defectively stated is good after verdict. Nichols v. R. J. and W. M. Boyd Construction Co., 177 Mo.App. 127. The petition was attacked because it does not allege the humanitarian doctrine and the plaintiff's instruction did not require it and both were approved as the petition stated a cause of action. Aga Construction Co. v. United Railway Co. of St. Louis, 203 S.W. 483. The sufficiency of the petition to state a cause of action was not questioned by demurrer at the close of plaintiff's testimony and was not raised in a motion for a new trial; it is raised only in a motion in arrest of judgment. It is not reviewable here. Davis v. Barada-Ghio Real Estate Co., 163 Mo.App. 328. If there was a variance between the pleadings and the proof in this case that was waived by the defendant, the variance was immaterial. Sec. 1271, R. S. 1919. The defendant did not make any objection to the trial court of the material variance and did not file an affidavit of surprise or that they were misled and is estopped. Brown v. Railway Co., 50 Mo. 461; Newton v. Harvey, 202 S.W. 249. The petition alleges that the defendants were in possession of and had control of the automobile and the purpose was to drive to Springfield. The evidence disclosed that the defendants were mother and son and constituted a family, and that they had an automobile. B. of E. 177; Respondent's A. of R., page--. Plaintiff was the invited and accepted guest of these defendants and a passenger in their automobile in their possession and under their control. An allegation that plaintiff was on defendants' premises by invitation is sufficient without stating the facts constituting the invitation. 29 Cyc., 567-568. Where plaintiff sets forth in the petition two contributing causes of action for which each of the defendants might be liable, she need not show specifically which one caused her injury. Miller v. Ingel, 185 Mo.App. 558. Where a petition would have been good after verdict, and defendant answered to the merits, demurrer to the evidence on the ground that the petition did not state a cause of action was properly overruled. Stamper v. Hammond Packing Co., 180 S.W. 1074. In passing on a demurrer to the evidence the plaintiff is entitled to every inference in her favor which the jury might properly indulge. Stevens v. Fisher, 161 Mo.App. 386. The conditions and circumstances in each case are matters for the jury. Second assignment of error is that the court erred in overruling defendants' demurrer to plaintiff's evidence. This point was waived as the record shows the defendants put in their testimony on the merits of the case. Cullin et al. v. Atchison County et al., 268 S.W. 93; Keammer v. Wells, 299 Mo. 249. The third assignment of error is that the court erred in refusing to direct the jury to return a verdict in favor of defendants. There was circumstantial and positive evidence of negligence in the driving of the automobile at a rapid rate of speed--reckless and dangerous rate of speed--so as to endanger the life and limb of plaintiff, and on the public highway for a distance of more than one-half mile in violation of section 19, Session Acts 1921, at page 91. The physical facts at the accident of the condition of this car after the accident, with the wheels broken, steering apparatus broken, up side down and two women thrown a distance of thirty feet gives positive evidence of the rapid rate of speed the car was traveling. Running an automobile at a rate of speed above that permitted by the statute (twenty-five miles per hour for one-half mile) is prima-facie evidence. Cahona v. St. Louis Car Co., 178 Mo.App. 718; Dale v. Denver City Tramway Co., 173 F. 787. Mrs. McDougal and her son, an adult, were living together as a family. She spoke of the automobile as "our car." Where an adult son, living with his father, using his father's automobile purchased for general family use, with the father's consent, on a trip for his own pleasure, the relation of master and servant existed and the father was liable for the death of plaintiff's husband caused by the negligence of the son operating the car. Hays v. Hogan, 180 Mo.App. 237. The petition alleges the automobile was in charge of and under the control of both of the defendants, a joint enterprise, a jointly owned car, on a...