McCarter v. Burger
| Decision Date | 05 June 1928 |
| Docket Number | No. 20140.,20140. |
| Parties | McCARTER v. BURGER et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Action by May McCarter against Joseph Burger and another. Judgment for plaintiff, and defendants appealed after their respective motions for a new trial had been overruled. Affirmed.
Geers & Geers, of St. Louis (John B. Harris, of Granite City, Ill., of counsel), for appellants.
Louis J. Robinson and Earl M. Pirkey, both of St. Louis, for respondent.
This is an action for damages for personal injuries, sustained by plaintiff in an automobile collision, at the intersection of Kingshighway boulevard and Wichita avenue, in the city of St. Louis, on July 12, 1925. The verdict of the jury was for plaintiff, in the sum of $2,000, and, from the judgment rendered, the defendants, after the overruling of their respective motions for a new trial, have duly perfected their appeal.
In her petition, and in the submission of case to the jury, plaintiff predicated her right to a recovery upon negligence under the humanitarian doctrine, and by reason of the excessive speed at which the automobile was being operated. Separate answers were filed by the defendants, each in the form of a general denial, coupled with a plea of contributory negligence, and the case was finally put at issue by the conventional replies of plaintiff thereafter filed.
Defendant Burger is the son-in-law of defendant Takasch, who was the owner of the automobile which was being driven by Burger on the occasion in question. Both defendants resided at 4775 Easton avenue, in the city of St. Louis. On the front of the lot, adjacent to the street, stood a two-story building, the ground floor of which was used by Takasch as a hardware store, while he and his immediate family occupied the upper floor for residential purposes. On the rear of the same lot was a two-family flat, also owned by Takasch, in the upper portion of which the Burgers resided. In the yard was a shed or garage in which Takasch kept his automobile. It appears that he did not drive the car himself, but at such times as he wished to make use of it, he arranged, either for Burger, or for one of his daughters, to drive for him. For the most part, Burger was employed away from his home, but there were occasions when he would be engaged by Takasch to deliver certain articles of merchandise in the car, even though the same was primarily a pleasure, and not a commercial, vehicle.
While there is a suggestion by learned counsel for plaintiff that a contrary inference was fairly and legitimately permissible, it would seem that on the occasion in question Takasch was not in his automobile; and the evidence for the defendants was to the effect that Takasch had given no express permission to Burger to drive the car, and was not even aware that it was being used at the time. The collision occurred on a Sunday afternoon, when there was an abundance of traffic on the highways. With Burger in the car were his wife and baby, together with his wife's two unmarried sisters, who lived at home with their father, defendant Takasch.
Other facts, bearing upon the issue of negligence, and having reference to matters occurring throughout the course of the trial, will be hereinafter stated as they may become pertinent in connection with particular points of decision.
By way of questioning the propriety of the action of the court in refusing the separate peremptory instructions in the nature of demurrers to the evidence, requested by defendants at the close of the whole case, counsel now argue at considerable length, and with much earnestness, that there was no proof of the agency of Burger for Takasch at the time of the collision, so as to render the latter liable, even if the former should be held to have been negligent, and that, in addition, there was no substantial evidence of negligence on Burger's part.
With regard to the suggestions made by counsel on behalf of defendant Takasch, it will suffice to say that this court, in a carefully considered opinion rendered in the case of Edwards v. Rubin (Mo. App.) 2 S.W.(2d) 205, has expressly held that, in a personal injury...
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