Long v. Nute

• Decision Date: 19 February 1907
• Citation: 100 S.W. 511,123 Mo. App. 204
• Parties: LONG v. NUTE.
• Court: Missouri Court of Appeals

100 S.W. 511

123 Mo. App. 204

LONG v. NUTE.

St. Louis Court of Appeals. Missouri.

February 19, 1907.

1. MASTER AND SERVANT—SCOPE OF EMPLOYMENT—PRESUMPTIONS.

Where an automobile was operated by a person employed for that purpose, it will be presumed that he was acting within the scope of his authority and about his employer's business; and such presumption is not changed by the fact that the chauffeur, in operating the automobile, made a detour from the direct route between his employer's home and a place to which he was directed by his employer to go.

2. APPEAL — OBJECTIONS NOT PRESENTED — INSTRUCTIONS — REQUESTS — OMITTED INSTRUCTIONS.

Where, in an action for injuries caused by a collision between defendant's automobile and a horse belonging to plaintiff, defendant failed to request an instruction charging that, to authorize a verdict for plaintiff, it was necessary for the jury to find that the collision resulted from the negligence of defendant, he could not complain of plaintiff's failure to incorporate such omitted instruction in an instruction on the measure of damages, where it did not belong, and where, if it had been incorporated, it would have confused the jury, by confounding the main issue with the measure of damages.

3. JUSTICES OF THE PEACE—PLEADING—DAMAGES RECOVERABLE.

In an action commenced by complaint before a justice of the peace for injuries to a horse caused by collision with an automobile, plaintiff was entitled to have assessed as damages the amount necessarily expended in endeavoring to heal the injuries inflicted upon his horse, and the value of his services while disabled, though the complaint contained merely a general allegation of damages.

4. APPEAL — EXCEPTIONS — ABANDONMENT IN BRIEFS.

Exceptions taken in trial court, but not mentioned in the briefs, will not be noticed on appeal.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by John A. Long against John W. Nute. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones, Jones & Hocker, for appellant. R. E. Rombauer, for respondent.

BLAND, P. J.

The action was commenced before a justice of the peace, and in due course was appealed to the circuit court, where, on a trial de novo, plaintiff recovered a judgment for $85, from which defendant duly appealed. During the trial, to meet the views of the trial court in regard to the admissibility of evidence as to the value of the services of a veterinary surgeon employed by plaintiff to treat the wounds inflicted upon his horse, the complaint, by leave of court, was amended so as to read as follows (omitting caption): "Plaintiff states that the defendant, by his servant and agent, while in the course of defendant's employment, on or about the 15th day of October, 1904, in the city of St. Louis, so negligently managed his (the defendant's) automobile, that the same ran into the plaintiff's vehicle and horse, and injuring all of them, causing damages to plaintiff in the sum of $150, for which sum and costs plaintiff asks judgment against the defendant." The facts as shown by the abstract are substantially as follows: On October 15, 1904, about 5 o'clock in the afternoon, plaintiff's two daughters and a lady friend were driving plaintiff's horse (hitched to a trap), in a slow trot, south on the west side of Newstead avenue, in the city of St. Louis. When the trap was within about 50 feet of the intersection of Newstead and Washington avenues, one of plaintiff's daughters (not the driver) noticed an automobile, running at a speed of from 20 to 25 miles an hour, approaching on Washington avenue west, and a coal wagon going north on Newstead avenue. The chauffeur driving the automobile, in making a circuit to get around and ahead of the coal wagon, drove in between the wagon and the trap, but did not make the circuit sharp enough, in consequence of which the automobile struck plaintiff's horse on the left shoulder with such force as to turn him around and cut a gash seven or eight inches long in his shoulder. An ordinance of the city, limiting the speed of automobiles to eight miles per hour, was read in evidence.

The chauffeur was subject to the orders of defendant and his wife, and the evidence shows that he had been ordered by Mrs. Nute to call for her at the World's Fair Grounds on that day at about 6 o'clock p. m., and that he called for her and she returned to her home in the automobile. Defendant's evidence tends to show that the automobile was not on the route from his home, or the garage where the automobile was kept, to the Fair Grounds when it collided with plaintiff's horse. The chauffeur stopped the automobile and gave the name and address of the owner to the young lady who was driving the trap. On the following morning, plaintiff called at defendant's home for the purpose of adjusting the matter. As soon as defendant saw plaintiff, and before plaintiff said anything about the collision, defendant addressed him thus: "Mr. Long, I have both hands up, and I want to settle as soon as possible." Nothing came of the effort to settle the matter. As to the damages, plaintiff's evidence tends to show the value of the horse before he was injured was $100, and not more than $18 after the injury; that he paid $20 to a veterinary surgeon for treating the horse, and the charge was a very reasonable one; that the horse was disabled for several months, and...