Martin v. Bulgin
| Decision Date | 07 December 1937 |
| Docket Number | No. 5841.,5841. |
| Citation | 111 S.W.2d 963 |
| Parties | MARTIN v. BULGIN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Laclede County; W. E. Barton, Judge.
"Not to be published in State Reports."
Action by Pearl Martin against L. G. Bulgin for personal injuries incurred in automobile accident. Judgment for plaintiff, and defendant appeals.
Affirmed.
D. O. Vernon, Phil M. Donnelly, and J. Andy Zenge, Jr., all of Lebanon, for appellant.
Breuer & Northern, of Rolla, and Bradshaw & Fields, of Lebanon, for respondent.
The plaintiff in this case obtained a verdict and judgment for $1,000 against the defendant, for personal injuries occasioned by the negligent driving of a Ford truck driven by one Joe Woodcock, an alleged employee of L. G. Bulgin. When the suit was filed, Joe Woodcock was named as a defendant but the case was dismissed as to him.
The defendant has appealed, and the case is presented under several assignments of error. We shall give the facts under the consideration of the various assignments.
The first point presented is stated by the defendant as follows: "The verdict in this case is against the evidence, against the weight of the evidence and against the law under the evidence, and there is no evidence to support or sustain the verdict, and the verdict should have been for the defendant, Bulgin, instead of for the plaintiff."
It may be seen that there are four reasons set out in the above assignment of error, as follows: (1) The verdict is against the evidence; (2) the verdict is against the weight of the evidence; (3) the verdict is against the law under the evidence; and (4) there is no evidence to support or sustain the verdict.
Our Supreme Court has recently held that an assignment such as set out in the first three subdivisions above presents nothing for review in an appellate court. Following the holding in that case, we so hold here, and for the reasons given by the Supreme Court. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914, 915, and the cases there cited.
The fourth subdivision above is considered by us along with the fourth assignment of error, that the court erred in overruling defendant's demurrer offered at the close of plaintiff's case, and another offered at the close of the whole case.
A consideration of these points necessitates a consideration of the evidence as to whether or not there was any evidence to submit the case to the jury.
The plaintiff states her theory of the case in her petition. In the first paragraph thereof she alleges that Joe Woodcock was the agent, servant, and employee of L. G. Bulgin, and the second paragraph thereof is as follows:
"Plaintiff further states that on or about the 14th day of April, 1935, she was walking on the left side of the road in a southwesterly direction over, upon and along Missouri State Highway No. 5, in Laclede County, Missouri; that when said plaintiff reached a point on said highway about nine and one-half miles north of Lebanon, Missouri, and about one-half mile or less south of Dove, Missouri, and while said plaintiff was walking on the left shoulder of said highway and outside of that portion of said highway used for vehicular travel, and while in the exercise of due care for her own safety then and at all times herein mentioned the defendant Joe Woodcock, while operating the aforementioned truck as the servant, agent and employee of the said defendant L. G. Bulgin, without warning to the plaintiff and without giving to the plaintiff any opportunity to escape, did suddenly cause or permit said truck to swerve from the right side of said highway to the left side thereof and across and upon the left shoulder of said highway and there with great force to collide with the plaintiff, dragging her body along said highway for approximately fifty feet to a point where plaintiff was violently hurled to the ground and run over by said truck and injured as follows: [The petition then alleges the extent of her injuries, and how long she was confined in the hospital and in her home under treatment, and that her injuries were permanent and progressive in character, rendering her unable to perform any of her usual duties.]"
With reference to agency and negligence of the driver, the petition alleged: "Plaintiff further states that the defendants acting through and by defendant Joe Woodcock, acting as the agent, servant and employee of the defendant L. G. Bulgin in the operation of said truck, were negligent in that as he approached the point of collision he carelessly and negligently caused or permitted said truck, while driven at a high and reckless rate of speed to swerve from the right side of said highway across the left side of said highway and upon said left shoulder of said highway where he saw or could have seen in the exercise of the highest degree of care the plaintiff walking; in that he operated said truck as it approached the point of collision at a high, dangerous, and excessive rate of speed; in that he failed to keep a vigilant watch for pedestrians upon said highway, in that he negligently failed to sound any warning signal of the approach of said truck; in that he failed to swerve said truck when by swerving of same he could have avoided striking the plaintiff; in that he carelessly and negligently drove the said truck from the right side of said highway across the left side of said highway and upon the left shoulder of said highway and struck the plaintiff; and that each and all of the above negligent acts directly caused the collision and injuries aforesaid."
The petition closed with a prayer for damages in the sum of $2,500, and for costs.
The answer was a general denial of the allegations of the petition.
There were a great many witnesses used in the trial. There are some things that may be passed over without much consideration. There is no question but that the plaintiff was struck by the truck which was owned by the defendant. There is no serious contention that the plaintiff was not injured. There was no denial that Joe Woodcock had been for at least two weeks in the employ of L. G. Bulgin, and that he had been driving this particular truck.
This injury occurred on Sunday evening about dusky dark on April 14, 1935.
The gist of the defense is that Woodcock had no authority to drive or use the truck on Sundays, and that if he used it and occasioned the injury, that he was on a trip of his own choosing, and that he had the truck without the knowledge or consent of the defendant, and it is the contention that the evidence was insufficient to submit the case to the jury as to the liability of the defendant.
The evidence shows that for at least two weeks prior to the date of the accident Woodcock was in the employ of the defendant, and that Woodcock was given the key to this particular truck. The evidence also shows that on the Sunday just a week before the accident to the plaintiff the defendant, through his agents in charge, sold a load of wood, and that the wood was delivered on that Sunday by Joe Woodcock by using the truck owned by the defendant.
There is evidence also to the effect that the defendant had told Woodcock to get in as many hours hauling as he could and that he received the same pay, 17½ cents per hour, for working on Sunday as he received for work on week days. The evidence shows that on the date of the injury, April 14, Woodcock took the truck early in the morning, and had it greased, and bought gasoline, both of which bills were later paid by the defendant. Woodcock testified that later in the day he went to Decaturville and loaded the truck with heading and took the heading down to a mill operated by the defendant near Montreal, and that a man there who worked for Bulgin showed him where to unload the heading, and that after the heading was unloaded that the man in charge of the woodyard helped to load the wood, which he had previously sold to Creason; that Creason had gone with him to get the load of heading, and to go on for the wood and assisted in loading the wood. After the wood was loaded, Woodcock and Creason started back away from the woodyard, and that while at the woodyard Woodcock and Creason were drinking whisky. There was considerable evidence to the effect that at various places on the way back to Lebanon the two men were seen drinking and carousing around. There was evidence to the effect that at different times they were seen drinking on other roads than the regular direct route from the woodyard to Lebanon. In other words, it was shown that they had driven off to other places presumably, for their own pleasure and carousal.
The evidence shows that the accident occurred after they had come back to the main road and on the direct road leading to Lebanon. The evidence shows that the truck with the load of wood thereon was placed in defendant's yard at Lebanon, and that the next morning Woodcock delivered the wood to Creason, and that a few days later Creason paid for the wood. There is evidence that on Monday morning, while he was working for Bulgin, Woodcock told Bulgin about hauling the load of heading the day before, and about selling the load of wood to Creason, and that he continued to work for Bulgin until he was arrested about noon that day.
A great deal of this evidence was contradicted by the defendant, but, as we view it, it is not our province to weigh the evidence. It is not for us to say which witness or which set of witnesses swore falsely or was mistaken.
Even though there was evidence to the effect that Woodcock left the direct road of travel and went off on a spree with Creason, yet there was evidence that the accident or collision occurred after they had returned to the main and direct road in returning to the defendant's headquarters.
Under circumstances such as we have narrated above, and as shown by the evidence before us, we think there was an issue which should have been...
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