Kurz v. Greenlease Motor Car Co.

• Citation: 52 S.W.2d 498
• Decision Date: 05 July 1932
• Docket Number: No. 17565.,17565.
• Parties: KURZ v. GREENLEASE MOTOR CAR CO.
• Court: Court of Appeal of Missouri (US)

52 S.W.2d 498

KURZ v. GREENLEASE MOTOR CAR CO.

No. 17565.

Kansas City Court of Appeals. Missouri.

July 5, 1932.

Rehearing Denied July 14, 1932.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be officially published."

Suit by Leona Kurz against the Greenlease Motor Car Company and others. From a judgment in favor of plaintiff, named defendant appeals.

Reversed.

Horace Guffin and Edmund B. Smith, both of Kansas City, for appellant.

Joseph H. Glass and Chas. N. Sadler, both of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, on January 16, 1930, was riding as a passenger for hire in a taxicab owned by the Hyde Park Taxicab Company, a partnership composed of Jack Barnes and J. W. Edwards, the taxicab being driven by one Braun. She was going from her husband's place of business, 3720 Broadway, to her home east of the point of collision. When her taxi reached Linwood boulevard and Woodland avenue, Kansas City, Mo., about 6:30 p. m., it collided with an automobile owned by defendant Greenlease Motor Car Company, a corporation engaged in the purchase and sale of automobiles, in which collision she was injured, and for which she brought this suit asking for $5,000 damages against the partnership Hyde Park Taxicab Company, its driver, and the Greenlease Motor Car Company.

Her petition alleged three separate acts of negligence: (1) Driving at an excessive rate of speed; (2) driving on the wrong side of the street in violation of law, ordinance, and custom; and (3) in negligently violating the humanitarian rule. However, as appellant relies on only one main point, namely, that the driver of defendant's automobile was not shown to be its servant nor acting within the scope of any duties he owed to said defendant, we need not spend further time on the specific acts or omissions of plaintiff's driver, to which no protest by her is said to have been made.

The partners forming the Hyde Park Taxicab Company filed no answer, and during the trial, and before submission, plaintiff dismissed as to Jack Braun.

Defendant Greenlease Motor Car Company demurred at the close of plaintiff's evidence, but the court overruled it, and, as the said defendant did not stand on its demurrer but went on with its proof, this demurrer was waived. At the close of all the evidence, however, the said defendant renewed its demurrer, and the court again overruled it.

The jury returned a verdict of $2,000 in favor of plaintiff "and against all the defendants." The trial court having directed a remittitur of $750, which plaintiff entered, judgment was rendered for $1,250 in favor of plaintiff and against the defendants Jack Barnes and J. W. Edwards, partners doing business under the firm name and style of "Hyde Park Taxicab Company," and "Greenlease Motor Car Company, a corporation," and the motions for new trial and in arrest were overruled; whereupon the defendant Greenlease Motor Car Company appealed.

For convenience, we will adopt the nomenclature used in the briefs, and will call the car in which plaintiff was riding, and which was owned by the partnership, Hyde Park Taxicab Company, the taxicab, and the automobile, which collided therewith and which was owned by the Greenlease Motor Car Company, by the name of its make, to wit, the Peerless sedan. Ben Millstein was driving the latter, and the vital question is, Was there any competent evidence tending to show that Millstein was the appealing defendant's agent, or within the scope of his authority as such, at the time the collision occurred? This question, in a somewhat different way, may appear under the point made that the only evidence relied upon by plaintiff to show that Millstein was the agent of defendant and in the course of his employment at the time of the collision, was incompetent and inadmissible.

On the question whether Millstein was the defendant Greenlease Motor Car Company's agent, and was within the scope of his authority as such, the record discloses the following:

Plaintiff testified that between 6 and 6:30 p. m. of January 16, 1930, she closed her husband's place of business where she worked, it being at 3720 Broadway, and calling the taxicab hired it to take her and a young lady employee to their homes, plaintiff's at 3729 Bellefontaine and the young lady's at Thirty-First and Agnes or between Thirty-First and Thirty-Second. There was snow on the ground, and when they reached Woodland avenue and Linwood boulevard the Peerless sedan collided with the taxicab. After the two cars stopped, the drivers of the cars got out and talked together.

Plaintiff testified that she heard them talking. Over the objections and exceptions of defendant Greenlease Motor Car Company, she was permitted to testify as follows: "Q. Just go ahead and state any conversation you heard. A. Our driver of our car asked the boy who belongs to that car and he said, `The Greenlease Motor Company', and our driver asked him, `How did you get that car?' and he said, `I am working for them.' That's what I heard."

She further testified that the driver of the car that struck them offered to take the ladies home in the car he was driving, and did so; on the way, she testified that "he told me he took that car out for a demonstration because his father would buy that car."

The young lady who was riding with plaintiff testified over the objections and exceptions of the aforesaid defendant, that "I heard him say that he was working for the Greenlease Motor Car Company and that his father was considering buying a car and that he was demonstrating this car for his father."

This was the whole of the testimony in plaintiff's behalf relied upon as tending to show that Millstein the driver of the Peerless sedan was an agent of the defendant Greenlease Motor Car Company. All of said testimony was objected to by said defendant. And after its admission the defendant unsuccessfully moved to strike it out as being wholly incompetent and inadmissible to prove agency solely by the declarations of the alleged or supposed to be agent.

At the close of plaintiff's case the defendant, as stated, offered a demurrer to the evidence which was overruled.

The evidence in defendant's behalf then was offered, and tended to show that Phillip Millstein, father of the boy who drove the Peerless sedan, had been negotiating with the Greenlease Motor Car Company for the purchase of a Peerless automobile, and had the car, which did the colliding herein, out from 4 to 5 o'clock on the day of the accident, and finally left it in front of his place of business waiting for Mr. Boult, sales manager of the Greenlease Motor Car Company, to come and get...