Kneezle v. Scott County Milling Co.

• Decision Date: 21 February 1938
• Docket Number: No. 5882.,5882.
• Citation: 113 S.W.2d 817
• Parties: KNEEZLE v. SCOTT COUNTY MILLING CO. et al.
• Court: Missouri Court of Appeals

113 S.W.2d 817

KNEEZLE v. SCOTT COUNTY MILLING CO. et al.

No. 5882.

Springfield Court of Appeals. Missouri.

February 21, 1938.

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

"Not to be published in State Reports."

Action by Roy Kneezle against Scott County Milling Company and others for injuries from a collision between plaintiff's school bus and a truck which allegedly was owned by defendant Fred L. Sturgeon, and was being driven at the time of the collision by defendant Allen Wade to carry out a conspiracy among defendants to transport products of the milling company in violation of statutes regulating contract haulers and public carriers and rules of the Public Service Commission. From a judgment for plaintiff, defendants appealed. The appeal was abandoned by the individual defendants.

Affirmed.

Bailey & Bailey, of Sikeston, and Oliver & Oliver, of Cape Girardeau, for appellant Scott County Milling Co.

Stephen Barton, of Benton, and Blanton & Montgomery, of Sikeston, for respondent.

FULBRIGHT, Judge.

This cause originated in the circuit court of Scott county by the filing of a petition by plaintiff on June 18, 1935. Thereafter, August 12, 1935, plaintiff filed his first amended petition which is in two counts. Defendant Scott County Milling Company filed its separate answer, and defendants Allen Wade and Fred L. Sturgeon filed their joint answer to plaintiff's first amended petition. The separate answer of the Scott County Milling Company to the second count of plaintiff's first amended petition is a general denial. Change of venue was granted to Stoddard county, where the cause was tried on May 18, 1936, during the regular April term of said court. At the close of plaintiff's evidence he elected to stand on the second count of the first amended petition. The trial resulted in a verdict and judgment for plaintiff for the sum of $500 for personal injury and $500 for damages to the school bus. Defendants filed motions for a new trial which were overruled and the cause was duly appealed to this court. The appeal seems to have been abandoned by the individual defendants and is being prosecuted by the corporate defendant only.

In view of the issues involved, the second count of plaintiff's amended petition, omitting caption and signatures, is set out in full:

"Comes now plaintiff, and for a second count of his first amended petition, says that the defendant, Scott County Milling Company, is a corporation of the State of Missouri, with its office and principal place of business in Sikeston, Scott County, Missouri.

"Plaintiff further states that at all times material to this cause, defendant Fred L. Sturgeon was the operator of three motor vehicles and two motor tractors, each of said vehicles having a freight carrying capacity of more than 1½ tons, and says that said defendant had not at any time material to this cause, secured from the Public Service Commission of the State of Missouri, any permit to operate said vehicles or tractors, or either of them, either as a contract hauler or as a common carrier as defined by the statutes of this state, and had not complied with any of the provisions of article 8 of chapter 33 [section 5264 et seq.], R.S.Mo. for 1929, and amendments thereto, [Mo.St.Ann. § 5264 et seq., p. 6679 et seq.], and had not complied with any of the rules and regulations as amended of the Public Service Commission of the State of Missouri prescribed in pursuance of said statutes with reference to the transportation of property for hire over the highways of this state, and particularly said defendant carrier had not complied with sections 5270 and 5271 of said statutes [Mo.St.Ann. p. 6687], nor with rules Nos. 5, 20 and 69 of said Public Service Commission, requiring said defendant carrier to apply for and secure a contract hauler's permit, and to operate thereunder and in accordance therewith, and had not complied with section 5273 [Mo.St.Ann. p. 6691], and rule 10 of said Commission requiring said defendant carrier to secure and file with said Commission a liability insurance policy or bond to protect the interests of the public, or to furnish proof of the defendant carrier's financial ability to properly protect the interests of the public. And plaintiff says that said defendant carrier at all times material to this cause, was insolvent and still is insolvent and unable to protect the interest of the public, or pay any compensation for injuries to persons, including the plaintiff herein, or to pay lawsuits or damages to property arising out of negligent operation of said defendant carrier's business of transporting freight as set out herein.

"Plaintiff further says that said defendant carrier had not complied with section 5274 [Mo.St.Ann. p. 6692], nor rules numbered 62 and 63 of said Commission prescribing safety rules and regulations and commanding compliance therewith by carriers of freight for hire over the highways of this state, and had not complied with said section 5274, nor rules 27 and 36 as amended of said Commission requiring distinctive markings, including weight of vehicles and tractors, and a contract hauler's annual license card, issued by said Commission, to be attached to each vehicle, tractor, trailer or semi-trailer used in carrying on such business of carrying freight for hire, and says that defendant carrier was not authorized by law to use said vehicle or tractors, or either of them, in the transportation of property for hire over the highways of this state, and that his act in so doing as herein alleged, was wrongful and unlawful and contrary to and in violation of the rules and regulations of said Public Service Commission, all of which said facts were well known to and understood by the defendant, Scott County Milling Company.

"Plaintiff further says that notwithstanding such facts, and that the defendant, Scott County Milling Company, had full knowledge thereof, as hereinabove set out and pleaded, the said Milling Company engaged and employed the defendants, Fred L. Sturgeon and Allen Wade, and each of them, to use and operate said vehicles and tractors over the highways of this state in the transportation for hire of merchandise and property of said defendant Milling Company, and particularly to haul a load of the manufactured products of said Milling Company from Oran, Missouri, to Salem, Missouri, and other towns, contrary to, and in violation of, the laws of this state, and rules and regulations of the Public Service Commission of such state, and the defendant, Scott County Milling Company, procured, aided and abetted said defendants, Fred L. Sturgeon and Allen Wade, and each of them, in said violation of said laws and said rules and regulations of the State of Missouri, and in failing to comply therewith, and says that by reason of said unlawful acts and conduct of said Milling Company, it became and is liable for all damages occasioned by the negligence of said defendants, Fred L. Sturgeon and Allen Wade, or either of them, while so engaged in said unlawful acts and conduct; the plaintiff further says that the collision, and injuries, and damages hereinafter set out and complained of were caused by the carelessness and negligence of the defendants, Fred L. Sturgeon and Allen Wade, and the Scott County Milling Company while they were engaged in said unlawful acts and conduct, as aforesaid, and while the defendants, Fred L. Sturgeon and Allen Wade were being aided, abetted and assisted, and procured by the defendant, Scott County Milling Company, so to do.

"And so, for his cause of action, plaintiff states that defendant Allen Wade on the 17th day of May, 1935, was operating one of defendant Sturgeon's aforesaid tractors and motor vehicles, as above stated, on Highway 70 about 12 miles west of Fredericktown, Missouri; that he was driving said vehicle in an easterly direction and toward Fredericktown, and that said Allen Wade was at said time and place the agent, servant, driver and employee of his co-defendant Fred L. Sturgeon, and was then and there in the course of his employment as his said agent and servant, and was under his direction and control, and was at said time and place by procurement of the Scott County Milling Company, as aforesaid, engaged in the business of transporting property of said defendant Milling Company over the highways of this state for hire, contrary to the laws of this state and the rules and regulations of the Public Service Commission, all as hereinbefore specifically set out and pleaded.

"Plaintiff further states that while said Allen Wade was so driving said vehicle in an easterly direction and toward Fredericktown, he overtook and passed plaintiff's motor vehicle at said time and place, and in passing plaintiff, said defendant carelessly and negligently failed to drive the motor vehicle he was driving a sufficient distance to the left of plaintiff's vehicle so as to pass plaintiff's vehicle, and said defendant carelessly and negligently drove said car down a steep hill at a dangerous and reckless rate of speed, and on account of said negligence, and as a direct result thereof, said motor vehicle which said defendant was driving was then and there driven on and against plaintiff's motor vehicle with great force and violence then and there, and thereby causing the latter to run off of the traveled part of the highway and into a ditch and overturn, and plaintiff was carefully driving his motor vehicle on his right side and going in an easterly direction when struck by defendant Allen Wade as above stated.

"(Plaintiff further states that his motor vehicle was damaged in the sum of $1,250, and he was compelled to expend $33.60 for towage and other garage expense, and plaintiff received severe bruises, cuts and wounds about his hands, fingers on his right hand, legs and chest, and permanent injuries to his right hand and little and next to the little finger of said hand in this, that...