Lanham v. Vesper-Buick Automobile Co.

• Decision Date: 05 November 1929
• Docket Number: No. 20091.,20091.
• Citation: 21 S.W.2d 890
• Parties: LANHAM et al. v. VESPER-BUICK AUTOMOBILE CO. et al.
• Court: Missouri Court of Appeals

21 S.W.2d 890

LANHAM et al. v. VESPER-BUICK AUTOMOBILE CO. et al.

No. 20091.

St. Louis Court of Appeals. Missouri.

November 5, 1929.

As Modified, on Denial of Rehearing, November 19, 1929.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be officially published."

Action by Charles Lanham and wife against the Vesper-Buick Automobile Company and others for damages for wrongful death of Eugene Lanham, deceased. Case against defendants John J. Bulan and another was dismissed. From a judgment for plaintiffs, defendant the Vesper-Buick Automobile Company appeals. Affirmed.

W. E. Moser and Hensley, Allen & Marsalek, all of St. Louis, for appellant.

Eugene J. McMahon and Charles E. Morrow, both of St. Louis, for respondents.

BENNICK, C.

This is an action brought by the parents for damages for the wrongful death of their minor child, Eugene Lanham, who was killed on October 10, 1925, when he was struck by an automobile driven by defendant John J. Bulan, a mechanic in the general employ of defendant the Vesper-Buick Automobile Company. A third defendant, John U. Wanner, was also joined as a party to the action, because of the fact that the automobile in question bore license plates that were shown by the official records to have been issued to him. At the close of plaintiffs' case, plaintiffs voluntarily dismissed as to defendants Bulan and Wanner, whereupon the trial proceeded as to defendant the Vesper-Buick Automobile Company alone, resulting in the return of a verdict in favor of plaintiffs, and against such defendant, for the sum of $3,000. Judgment was thereupon rendered in conformity with the verdict, from which defendant the Vesper-Buick Automobile Company has duly perfected its appeal to this court.

This is the second appearance of the case before us, our first opinion being reported at 6 S.W.(2d) 995. Subsequently the Supreme Court issued its writ of certiorari to review our record and judgment, and in an opinion filed — State ex rel. Vesper-Buick Automobile Co. v. Daues, 19 S.W.(2d) 700 — quashed a portion of our opinion relating to the admissibility and competency of certain evidence adduced by plaintiffs, following which the case has been reargued and resubmitted in this court.

The petition charged negligence against the defendants jointly, in failing to stop or swerve the automobile after they could have seen the deceased in a position of imminent peril; in failing to bring the automobile under control, when they could have seen the deceased on the traveled part of the street, and not on the sidewalk; and in failing to warn the deceased of the approach of the automobile. The defendants answered separately, each by a general denial.

The evidence in the case, as it appears from the statement of facts in our former opinion, was substantially as follows:

"The casualty herein involved occurred about 3 o'clock, on a Saturday afternoon, in front of 2117 Olive street, in the city of St. Louis, where plaintiffs at the time resided. The deceased was a small child, 5 years of age, and had been playing on the sidewalk in front of his home with some other children of the neighborhood. A larger child ran out into the street towards the south, followed by the deceased, who went as far as the middle of the car tracks, when he turned to go back to the north. As he did so, he took one step forwards, and was instantly struck by a Buick coupé, driven westwardly by defendant Bulan, and bearing Missouri license No. 118-765 for 1925, and was dragged 25 or 30 feet before the automobile was brought to a stop. The child was then placed in the automobile and taken to the City Hospital, where it was found that life was extinct, after which the body was taken to the morgue by Bulan and those parties acompanying him.

"A bystander, Tulleson, who viewed the entire occurrence, testified that, when the deceased came in the path of the automobile, the same was 75 yards to the east, and traveling at a speed of approximately 12 miles an hour; that he heard no warning given by the driver; that the speed of the automobile was not slackened, nor was its course varied; that the center of the radiator struck the child; and that, under the existing conditions, the automobile could have been brought to a stop within a space of 10 feet.

"It appeared from other testimony that the license plates upon the car that struck the deceased had originally been issued to defendant Wanner, for use upon a Buick sedan owned by him. However, on August 12, 1925, Wanner's sedan had been damaged beyond repair in a collision, and had been taken on the same day to the maintenance department of defendant the Vesper-Buick Automobile Company, in the city of St. Louis. On September 2d following, Wanner gave his order for a new car to such company, and was allowed a credit of $150 on the salvage from the old car in part payment for the new one. At the same time, he directed the company to retain his license plates until the new car was delivered, and on October 15th he received the new car with the original license plates thereon.

"It was also shown by Officer Hayhurst, of the police force, who had accompanied Bulan to the city hospital, and then to the morgue, that, after leaving the morgue, he and Bulan went to the station, where Bulan was `booked' and his `pedigree taken.' Over the strenuous objections of counsel for defendant the Vesper-Buick Automobile Company, the witness was permitted to testify that Bulan had stated to him at the station that he was employed by the corporate defendant as a mechanic, that he received a commission on cars sold by such company, and that he had had the car in question out for demonstration, and was on his way back to the company's place of business when the accident happened. It further appeared that Bulan called defendant the Vesper-Buick Automobile Company over the telephone from the station, and requested that some one be sent to get the car.

"A second police officer, Hartwig by name, testified that, after he had completed his investigation at the scene of the accident, he waited at the station for the return of Hayhurst and Bulan from the hospital, after which he and Hayhurst jointly propounded certain questions to Bulan, and that a period of at least one hour had elapsed between the time of the accident and the time when the questions were asked.

"At the conclusion of plaintiffs' case, it was admitted by counsel for defendant the Vesper-Buick Automobile Company that Bulan was employed by such company as a mechanic, and that he had worked for it in such capacity both before and after the accident."

Originally there were two points relied upon by appellant for reversal; the first directed to the propriety of the submission of the case to the jury, and the second to the admission in evidence of the testimony of Officer Hayhurst as to the statements made by defendant Bulan while under examination at the police station approximately an hour after the accident had occurred. In our former opinion we determined both points adversely to appellant's contention; and so far as concerns the ruling on the demurrer to the evidence, our holding was approved by the Supreme Court on certiorari, so that such point is no longer open to review. The Supreme Court found, however, that our decision as to the admissibility of the testimony of the police officer in regard to the declarations of Bulan was in conflict with their own last controlling decisions, so as to necessitate the quashing of that portion of our opinion, in view of which such latter point is now the only one for consideration upon this second submission of the case.

We had entertained the view, as our former opinion will show in greater detail, that the independent facts and circumstances in evidence, apart from the testimony as to Bulan's statements at the police station, were sufficient to make out a prima facie case of agency; that with all favorable inferences drawn in plaintiffs' favor, and with no countervailing inferences...