Irwin v. McDougal

Citation274 S.W. 923
Decision Date01 July 1925
Docket NumberNo. 3739.,3739.
PartiesIRWIN v. McDOUGAL et al.
CourtCourt of Appeal of Missouri (US)

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

Action by Maud Irwin against Arch McDougal and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.

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

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

COX, P. J.

Action for damages for injuries sustained in an automobile accident. Plaintiff recovered $2,000, and defendants appealed.

The evidence shows that on April 13, 1923, the two defendants, who are mother and son the plaintiff and her husband, and Mr. and Mrs. Hess were all going from Webb City, Mo., to Springfield, Mo., to attend a Masonic entertainment. When they started, the two McDougals, the defendants herein, rode in their own car with Mr. Arch McDougal driving and were in the lead. Which one of the McDougals owned this car does not clearly appear in this record, but counsel concede in this court that the car belonged to Arch McDougal. The plaintiff and her husband and Mr. and Mrs. Hess followed in a car belonging to Mr. Hess and driven by him. They traveled that way for a considerable distance, when Mr. McDougal stopped his car and waited until the Hess car came up. Up to this time it appears that plaintiff and her husband were the guests of Mr. Hess and were riding in his car. When the Hess car caught up with Mr. Arch McDougal, he then suggested that plaintiff and Mrs. Hess change from the Hess car to the McDougal car and his mother would drive it the remainder of the way to Springfield and he would ride in the Hess car. This change was made as suggested by him, and from that point until the accident Mrs. McDougal drove the McDougal car with the ladies in it, and Mr. McDougal rode in the Hess car. Some time after the change, the McDougal car, which was then in the lead and driven by Mrs. McDougal, came to a crossroad and she stoppel to learn which road to take. The men then passed her. The plaintiff testified that after Mrs. McDougal got her car started again, it zigzagged, going first to one side of the road, then to the other side, for a short distance, then it straightened out and was running at a rapid rate of speed for some distance, and the next she knew she became conscious some two or three weeks later in a hospital in Springfield. It was shown by other witnesses that the road at the place of the accident was a good graveled road with a slight downward slope, and that the car was going at a rapid rate of speed when it left the road and ran against a bank at the side of the road and turned over. As it turned over, plaintiff and Mrs. Hess, who were riding in the rear seat, were thrown out of the car and away from it a distance of 20 or 30 feet, and both were rendered unconscious. Mrs. Hess soon revived, but plaintiff was severely injured and did not recover consciousness for two or three weeks afterward.

The foregoing are the material facts and are practically undisputed except as to the speed at which the McDougal car was traveling at the time of the accident. The defendant's witnesses contend that at no time did this car travel to exceed 25 miles per hour, while some of plaintiff's witnesses estimated the speed of the car at the time of the accident at from 40 to 50 miles per hour.

The case went to the jury on one ground of negligence only, and that was the dangerous rate of speed. On the speed of the car the witnesses differed, and one assignment of error is based on the ground that the court permitted witnesses for plaintiff to testify as to the rate of speed the automobile was traveling when the same witnesses testified to a state of facts which showed that they were not qualified to judge the speed of the car. We think the objections to some of this testimony should have been sustained, but do not regard the error as reversible or material. If we omit all the testimony of plaintiff's witnesses as to the speed at which the car was moving at the time of the accident, yet, the physical facts testified to by witnesses for both plaintiff and defendants, and about which there is no dispute, show beyond the possibility of a doubt that the car was moving at a dangerous rate of speed at the time of the accident. These physical facts are that the car left the beaten path of the road, ran against the bank at the side of the road, turned over, and stopped. As it turned over it threw plaintiff and Mrs. Hess, who were riding in the rear seat of the car, out of the car and a distance of 20 or 30 feet away. These facts show conclusively that the speed of the car was dangerous, and what any witness may have testified in relation to the speed of the car became wholly immaterial. The fact that an automobile, when striking an obstruction, would throw its occupants such a distance, establishes a dangerous rate of speed beyond question, and al so warrants a finding that the dangerous rate of speed was the proximate cause of the injury.

It is insisted that the separate demurrer to the testimony filed by Arch McDougal should have been sustained, because he was not driving the car nor present when the accident occurred, and that there is no evidence to show that his mother, who was driving the car, was his agent and engaged at the time in some business for him. We are cited to a number of cases, of which Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, is a type, which hold that, in order to fasten liability upon a party for an injury inflicted in his absence by the negligence of the driver of an automobile, it must be shown that the driver was his agent and engaged at the time in the performance of a duty for the principal. These cases correctly state the law, but our judgment is that the facts in this case clearly bring it within the rule there stated. While all these parties were going to Springfield for their own pleasure, it was not a common enterprise. No agreement to share expenses or divide responsibility in any way was shown. The plaintiff and her husband were riding with Mr. Hess in a car owned and driven by him. If there were any arrangements between Mr. Hess and plaintiff and her husband other than that they were the guests of Mr. Hess, it does not appear. Certain it is that up to the time that the ladies changed from the Hess car to the McDougal car, there was no relation of any kind existing between the McDougals and plaintiff. When, however, defendant Arch McDougal, on his initiative, asked the plaintiff and Mrs. Hess to change cars and ride in the car to be driven thenceforward by his mother, the plaintiff, when she accepted his invitation, became his guest and his mother became his agent to convey plaintiff to Springfield for him. To our mind, it would be difficult to show an agency which would render the principal liable for the negligence of his agent more clearly than these facts show it in this case.

It is also insisted that the evidence does not establish the cause of action pleaded in the petition, in that the petition alleges joint control of the automobile by both defendants, while the proof shows sole control by Mrs. Arch McDougal at the time of the accident. We do not regard this as a fatal variance. The negligence pleaded is the negligence of Mrs. McDougal, and the only purpose of the allegation of joint control by her and her son, Arch McDougal, was to allege that he was responsible for her negligence. We think it would have been better pleading to have alleged the facts of agency and his responsibility for the mother's negligence upon that theory in direct terms, but we do not regard this as a case showing a total failure of proof. It seems to ...

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