Kaufman v. Baden Ice Cream Mfrs.

• Decision Date: 05 June 1928
• Docket Number: No. 20290.,20290.
• Citation: 7 S.W.2d 298
• Parties: KAUFMAN v. BADEN ICE CREAM MFRS., Inc.
• Court: Missouri Court of Appeals

7 S.W.2d 298

KAUFMAN v. BADEN ICE CREAM MFRS., Inc.

No. 20290.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Rehearing Denied with Modification June 21, 1928.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Bertha Kaufman, a minor, by Max Kaufman, her next friend, against the Baden Ice Cream Manufacturers, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jeffries, Simpson & Plummer, of St. Louis, for appellant.

Harry F. Russell, Marsalek, Stahlhuth & Godfrey and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries. There was a verdict and judgment for plaintiff for $5,000, from which defendant has appealed. The suit is brought by a minor through her duly appointed next friend.

The pleadings are not involved. The allegations of negligence in the petition upon which the case went to the jury may be briefly stated as follows: That plaintiff, a 16 year old girl, while on a hiking trip on March 3, 1925, was struck by defendant's agent driving a truck on Riverview drive in the city of St. Louis; that plaintiff was walking northwardly on the east side of Riverview drive, on which street there are no laid sidewalks, and, while she was so walking, in company with other girls, defendant's agent driving a truck approached from the north at a high and dangerous rate of speed, swerving to the east—that is, to the left—and struck this plaintiff, without giving any warning of his approach. It is then alleged that plaintiff was seriously injured thereby, etc. The answer was a general denial.

There are four assignments of error: That the court erred in admitting the testimony of Rosalie Kaufman as to certain statements and declarations of Louis H. Fischer, Sr., the president of defendant company; that the court erred in admitting in evidence the testimony of Max Kaufman as to the same matters; and that the court erred in giving plaintiff's instructions Nos. 5 and 3. We will recite so much of the evidence as is necessary to give an understanding of the case and to explain our decision of the questions raised on this appeal.

It is shown that defendant company is a corporation. Chain of Rocks Park is located in the northern part of the city, and is a popular outing resort. Plaintiff and her girl friends had taken a street car from the city to Baden Station, and from that point they had concluded to walk to the park, quite some distance. The girls were in two lines, three abreast in the first line and four in the second, walking with their arms linked together. Plaintiff was on the west end of the second line, or nearest to the center of the street. She testified that she was 6 feet away from the center of the road, however. The accident occurred about noon on a bright, clear day. There is evidence tending to show that one Louis Fischer, Jr., was driving a truck belonging to defendant company southwardly along this roadway, and, when the truck was about a half block from plaintiff, it was near the center of the road and running about 25 miles an hour. There was a touring car immediately ahead of the truck, and, when this situation presented itself, Fischer attempted to pass the touring car, swerved out to the left of the road, and, in doing so, there is evidence to show, he increased his speed to about 40 miles an hour, and in so swerving came over to the west side of the road, and, proceeding on his way southwardly, struck plaintiff, knocking her about 30 feet; that at that time and immediately before he sounded no warning of his approach. Plaintiff was very seriously injured, suffering a compound fracture of both bones of the left leg, and there were other serious injuries. Fischer, the chauffeur, stopped the truck, put plaintiff into it, and took her to the police station and from there to the City Hospital.

The point about which much of the controversy arises is the question of agency. There is evidence tending to prove that the defendant corporation was engaged in the manufacture and sale of ice cream and dairy products. The president of the corporation was Louis Fischer, Sr., the father of the chauffeur. It is admitted that the son was in the employ of the company.

Louis Fischer, Jr., in his testimony, said that he did everything as an employee of that company, doubtless meaning that everything he did for the company was done as an employee. It was his version that he had not delivered ice cream to customers at the Chain of Rocks Park, but that he had on this occasion taken a friend up to the park, and that he was returning from that trip with the truck to return same to the place of business. He admitted on cross-examination that there may have been one or two cans in the truck. He also said he was taking the most direct route back to the place of business. The truck was the property of defendant. The chauffeur also said that he frequently delivered ice cream to points in and near the park, and it appears that these cans of ice cream were placed in canvas bags instead of wooden tubs usually used for that purpose. The chauffeur admitted that the accident occurred while he was attempting to drive around the touring car, and that he did not see plaintiff and her companions until he had struck plaintiff.

Ann Stebelman, a companion who was with plaintiff at the time of the accident, stated that the truck was an ordinary Ford truck, with the name "Baden Ice Cream Company" painted on the side of same, and that there were ice cream cans in the machine at the time of the collision, but that she did not know whether they were full or empty. She said the chauffeur picked plaintiff up and put her in the back of his truck, and that in order to do so he had to push the ice cream cans aside.

Sarah Maneson, another of plaintiff's companions, saw the company's name painted on the truck, and testified that there were ice cream containers on the truck at the time, and that there was a substance dripping from the cans; that there were quite a number of such cans on the truck.

A police officer who saw the truck at the station also testified that he saw defendant's name on the truck and identified young Fischer as the driver. He further supplemented the evidence by saying that he saw chopped ice on the truck and "ice cream cans and ice cream."

Plaintiff's sister, Rosalie Kaufman, a stenographer, testified that the elder Fischer, the president of the company, came to her house a few evenings after the accident and conversed with her and her father about the accident. She said that Fischer then told them that the chauffeur was his oldest son, and "that he had been delivering some ice cream to the picnic, out at Riverview I think it was; and he said he was on his way back to the ice cream company, with the empty cans, and he asked us not to criminally prosecute his son. He asked that quite a number of times."

That testimony was...