Latham v. Hosch

Decision Date08 July 1921
Docket NumberNo. 16708.,16708.
Citation207 Mo. App. 381,233 S.W. 84
PartiesLATHAM v. HOSCH.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Walter Latham against G. Carleton Hosch. Judgment for plaintiff, and defendant appeals. Affirmed.

Koerner, Fahey & Young, of St. Louis, for appellant.

Kelley, Starke & Moser, of St. Louis, for respondent.

DALES, J.

This is an action brought by plaintiff for damages on account of a collision between an automobile owned by the defendant and one owned by the plaintiff, in which collision it is alleged plaintiff's machine was damaged. The collision occurred on November 7, 1917, at the intersection of Washington avenue and Whittier street, in the city of St. Louis, and is the same accident involved in the personal injury suit of Ethel Pinteardd, Administratrix of the Estate of Scott Pinteardd, v. G. Carleton Hosch (No. 16653) 233 S. W. 81, decided by this court at this term in an opinion not yet [officially] reported.

The allegations of negligence in this case are that the driver of the defendant's car negligently failed to sound a horn, failed to keep a vigilant or any watch for automobiles at said intersection of said streets, or reduce the speed of his machine, or have same under control, operating it at a high and dangerous rate of speed, and, finally, that he negligently operated said machine south to the center line of Washington avenue in violation of section 1327 of an ordinance of the city of St. Louis, which provides that a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible.

The answer is a general denial and a plea of contributory negligence. The reply is a general denial. The cause was tried on March 24, 1919, before the court and jury, and resulted in a verdict of $322.30 in favor of the plaintiff. Defendant appeals.

Our opinion in the case of Pinteardd v. Hosch (No. 16653) contains a more complete statement of the facts and circumstances attending this accident, as contained in that record. The record in this case discloses that the plaintiff owned an automobile and on the night of the accident was riding with one Scott Pinteardd in his machine, intending to take him home from his work. He drove south on Whittier street to the intersection of Washington avenue, and after making the turn into Washington avenue he discovered defendant's car coming west on Washington avenue about 100 felt away, when it swerved to the left of said street at a terrific rate of speed, striking plaintiff's automobile and causing it to be damaged. Plaintiff and Scott Pinteardd were in the front seat of plaintiff's car, and defendant's car was driven by one William Jackson.

Appellant assigns as error: First, that there is not sufficient evidence in the case to raise an issue in behalf of the plaintiff as to whether or not the automobile was being operated on the occasion in question by the defendant's employé Jackson, in the scope of his employment; second, that the court erred in refusing to give a withdrawal instruction requested by the defendant, by which certain allegations of negligence were to be withdrawn from the consideration of the jury; third, that plaintiff should have been held guilty of contributory negligence as a matter of law; and, fourth, that certain remarks of counsel for plaintiff to the jury were improper.

The first complaint of appellant is that there is not sufficient evidence in the case to raise an issue in behalf of plaintiff as to whether defendant's automobile was being operated on the occasion in question by the driver, Jackson, for and in behalf of the defendant. We have discussed this question in the Pinteardd. Case, and therefore will not again review authorities under that point.

It is enough to say that the case of Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, Ann. Cas. 1918D, 1123, relied upon by counsel, is not in point. The plaintiff here does not rely upon any presumption that Jackson was acting within the scope of his employment as the chauffeur for defendant, but, on the contrary, plaintiff adduced evidence in the nature of admissions made by the defendant tending to prove that on the occasion in question Jackson was operating the defendant's automobile on the business and in the service of the defendant, in that on said occasion the employé, Jackson, was returning in the defendant's automobile to the defendant's home after having gone to the station to mail a special delivery letter for and under the direction of the defendant.

[1, 2] Admissions of a party to a suit are competent, and they may be used by plaintiff in proving his cause of action. Black v Epstein, 221 Mo. 286, 120 S. W. 754; Smith v. Witton, 69 Mo. 458. And although the defendant in his testimony denied that such admissions were made by him, it is for the jury to determine whether the evidence of the admissions of defendant is true or false. Kirkwood v. Van Ness, 61 Mo. App. 361.

It is next argued that the court erred in refusing to give the withdrawal instruction requested by the appellant.

Plaintiff's petition alleges the violation of a certain specific duty under the common law, and, further, the violation of an ordinance of the city of St. Louis, to wit, section 1327 of the Revised Code of St. Louis, which, in effect, provides that a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible.

The plaintiff offered only one instruction, and that was on the measure of damages, and submitted the question of defendant's negligence without direction by the court. The refused instruction is in the following language:

"The court instructs you that the plaintiff in his petition charges that the defendant was guilty of negligence in the following particular, to wit: `Plaintiff further states that defendant's said automobile, while being operated westwardly on saw Washington avenue at or near its intersection with said Whittier street, was being negligently operated south of the center line of the said Washington avenue in violation of said ordinance.'

"As to this charge of negligence the court instructs you that under the law and the evidence in this case the plaintiff is not entitled to recover, and you will therefore not consider this charge of negligence in arriving at your verdict."

The ordinance was not introduced in evidence.

Observably, this instruction sought to take from the consideration of the jury the allegation in the petition that the machine was negligently operated...

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    ... ... Komor v. Foundry Co. (Mo. App.), 300 S.W. 1028; Lathem v. Hosch, 207 Mo. App. 381; American Auto. Inc. Co. v. Rys. Co., 200 Mo. App. 317; Kinlen v. Railroad, 216 Mo. 145, 162; Schulz v. Smercina, 1 S.W. (2d) 119 ... ...
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    ... ... submitted to them by plaintiff's Instruction 4. Komor ... v. Foundry Co. (Mo. App.), 300 S.W. 1028; Lathem v ... Hosch, 207 Mo.App. 381; American Auto. Inc. Co. v ... Rys. Co., 200 Mo.App. 317; Kinlen v. Railroad, ... 216 Mo. 145, 162; Schulz v. Smercina, 1 ... ...
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