Mebas v. Werkmeister

• Decision Date: 08 November 1927
• Parties: JOHN MEBAS, APPELLANT, v. EMIL WERKMEISTER, BY HIS GUARDIAN ET AL., AND SEVERIN WERKMEISTER, RESPONDENTS. [*]
• Court: Missouri Court of Appeals

299 S.W. 601

221 Mo.App. 173

JOHN MEBAS, APPELLANT, v. EMIL WERKMEISTER, BY HIS GUARDIAN ET AL., AND SEVERIN WERKMEISTER, RESPONDENTS. ^[*]

Court of Appeals of Missouri

November 8, 1927

Appeal from the Circuit Court of St. Louis County.--Hon. John W McElhinney, Judge.

Judgment reversed and remanded (with directions).

Frank A. Habig and D'Arcy & Neun for appellant.

The trial court erred in sustaining defendants' motion for new trial because of the giving of said instructions Nos. 1 2, 3 and refusal to give No. 12, for the reason, that the evidence in this cause did show the agency of the said Emil Werkmeister, minor son of defendant Severin Werkmeister; and did show a duty or a business owing to or which benefited the father, and, that at the time of this accident, said minor son was acting in the scope of an agency, duty or business for which the father would be liable. Dunn v. Ry Co., 21 Mo.App. 188; Buck v. Ry. Co., 46 Mo.App. 555; Hennesy v. Brewing Co., 63 Mo.App. 111; Keller v. City, 152 Mo. 596; Whitehead v. Railroad, 22 Mo.App. 60; Rankin v. Rankin, 83 Mo.App. 335; Esteb v. Esteb, 138 Wash. 174; City v. Welch, 51 Kan. 792; Dailey v. Maxwell, 152 Mo.App. 145; Lleywehn v. Lowe, 239 S.W. 535; Curtis v. Harrison, 253 S.W. 474; Kichefsky v. Wiatzykowski, 210 N.W. 679; Chambers v. Kennedy, 274 S.W. 726; American Pro. Co. v. Gonzales, 294 S.W. 273; Lacy v. Forehand, 108 S.E. 247; Smith v. Jordan, 211 Mass. 269; Graham v. Page, 300 Ill. 40.

Geers & Geers for respondents.

(1) (a) A father cannot be held liable for the negligent operation of his automobile by his minor son merely because he owned the car or because he permitted the son to drive it, or because of the relationship between them. Hays v. Hogan, 200 S.W. 286; Llywellyn v. Lowe, 218 S.W. 696; Mayes v. Fields, 217 S.W. 589; Bright v. Thatcher, 215 S.W. 788; Curtis v. Harrison, 253 S.W. 474. (b) There is no presumption that a minor child is the agent of his father in driving the latter's automobile, or that when driving the same he is acting within the scope of his authority. And such a rule would be to base one presumption upon another, namely, that the son was the agent of the father, and that as such agent he was acting within the scope of his authority, whereas, the law requires a presumption to be based upon a fact. Hayes v. Hogan, supra. (c) There is no evidence in this case that the son was the father's agent, acting in the scope of his authority at the time the plaintiff was injured, indeed the evidence shows that the defendant, Severin Werkmeister, was not at home when his son, Emil Werkmeister, took the automobile and that he had no knowledge that the son was using the car. Under this state of circumstances the doctrine respondeat superior does not apply. Keim v. Blackburn, 280 S.W. 1046, 1047, and cases there cited. (2) (a) Even if the son were the father's agent, the liability of the father would not depend upon the mere fact of agency alone, but would depend as well upon whether the plaintiff's injury was received while the agent was acting about his master's business and within the scope of his employment. Warrington v. Bird, 151 S.W. 754, 756; Calhoon v. D. C. & E. Mining Co., 209 S.W. 318, 320. (b) A master is not responsible for his servant's tort in the use of an instrumentality furnished by the master, unless committed in the execution of his master's business and within the scope of his employment. Anderson v. Nagel, 259 S.W. 858; Keim v. Blackburn, supra. (c) The master is not liable for an unauthorized act of his servant, done on the servant's own account. Thompson v. Portlant Hotel Co., 239 S.W. 1090. (3) The mere fact that the defendant, Emil Werkmeister, was driving his father's automobile on his way to school does not render the father liable. There is no charge nor proof that the father was sending him to school in the automobile nor that he was causing him to drive the automobile at the time and place of plaintiff's injury. Curtis v. Harrison, supra. (4) The trial judge is vested with sound discretion when granting a new trial on account of misleading instructions. Stafford v. Ryan, 276 S.W. 636; Strother v. Sieben, 282 S.W. 502.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is an action for damages for personal injuries growing out of an automobile accident. Plaintiff recovered a verdict for $ 6500, which verdict upon defendants' motion for a new trial was set aside. From such, plaintiff appeals to this court.

The announced grounds upon which the motion for new trial was sustained was that error was committed in giving Instructions 1, 2 and 3 on the part of plaintiff, and a failure to give Instruction 12 on behalf of defendants. This may be treated together as they raise but one question, and that is as to whether the case was properly submitted to the jury on the theory that there was sufficient evidence to the effect that the driver of the machine was acting in the interest of his father, the defendant Severin Werkmeister, to make the doctrine of respondeat superior applicable.

The petition alleges that the defendant Emil Werkmeister, while in the line of his duty, and in the discharge of his obedience and duty to his father, Severin Werkmeister, and while in the performance of the duty, business and commission owing to his father, negligently struck and seriously injured plaintiff. It is charged that defendant Emil Werkmeister while driving his father's automobile in the city of St. Louis on December 20, 1923, seriously injured plaintiff, and specifies as negligence: The failure to keep as near the right-hand side of the street as possible; failure to warn; failure to keep brakes in good condition; excessive speed, and relies also on the humanitarian doctrine. There are other assignments of negligence, none of which need here be discussed since no question arises about them.

The defendant Emil Werkmeister, a minor, filed an answer by Severin Werkmeister, his guardian ad litem, which is, first, a general denial, together with a plea of contributory negligence. Defendant Severin Werkmeister filed an answer in which he admits that he was the owner of the Ford automobile which caused the injury, and admits that his son Emil Werkmeister was driving and operating the automobile at the time of the accident, but denies that the son was employed or engaged in his, Severin Werkmeister's business, but that the son was operating the Ford automobile without this defendant's consent, or at his request, or under his direction, and then further alleges that the boy was engaged in his own private business at the time.

The reply is a general denial.

Since there is not and cannot be any question about the sufficiency of the evidence to submit the case to the jury as to Emil Werkmeister, the driver of the machine, we will recite only so much of the record as bears directly on the point before us for decision. That is, whether under this record the father is liable for the negligence of his seventeen-year-old son while driving the father's automobile to or from high school, on the theory that the son was then acting in the interest of his father and not on a journey of his own, disconnected with the interest of the father.

The evidence tends to show that plaintiff on the morning of December 20, 1923, was riding in the side seat of a motor cycle in St. Louis county, near the limits of the city of St. Louis, on Gravois avenue; that when he arrived at that point and within the city limits, he and his companion got off of the motor cycle and started to cross Gravois avenue when defendant Emil Werkmeister ran over him with the automobile in question while driving same at from thirty to forty miles an hour; that defendant Emil Werkmeister did not slow down or stop or sound a signal, nor swerve the automobile in order to avoid striking plaintiff. It is in evidence that plaintiff after the injury was taken to the City Hospital in St. Louis, where he remained two weeks, and he was then removed to a private hospital, where he remained seven weeks longer. He suffered, among the injuries, a fracture of two bones in his left leg, the bones having protruded through the flesh of the leg, necessitating a surgical operation to set the leg. He remained home for a long period of time and was not able to work for one year after the accident. It was shown that his hospital and doctor expenses amounted to more than $ 1000; that he lost wages of upwards of $ 1700, and that the injury is permanent and that the injured leg will remain crooked and shorter than the other one. There is no question with reference to the extent of the injury.

Plaintiff's evidence supporting the allegations of negligence was denied by witnesses on the part of defendants, but a clear and strong case was made for the jury in that respect.

Now, as to the evidence relating to the question as to whether a case was made for the jury against the father, defendant Severin Werkmeister. We will refer to these defendants as father and son without repeating their full name.

Plaintiff introduced a deposition of the son in which he admitted that he was seventeen years of age the day before the accident that he was living with his parents, both of whom were living; that his father was the owner of the automobile in question and that he, the son, was driving same when he struck plaintiff; that his father had owned the machine for about two years, and that on this day he was on his way to the Kendrick High School in the city of St. Louis, quite a distance from his home, he and his parents living in St. Louis county. He testified further that he used the automobile regularly in the summer, but not regularly during the winter months; that his father knew that he used...