Miller v. Rice-Stix Dry Goods Co.

• Decision Date: 17 June 1920
• Docket Number: No. 16078.,16078.
• Citation: 223 S.W. 437
• Parties: MILLER v. RICE-STIX DRY GOODS CO. et al.
• Court: Missouri Court of Appeals

223 S.W. 437

MILLER v. RICE-STIX DRY GOODS CO. et al.

No. 16078.

St. Louis Court of Appeals. Missouri.

June 17, 1920.

Rehearing Denied July 22, 1920.

Appeal from St. Louis Circuit Court; Benjamin J. Blene, Judge.

"Not to be officially published."

Action by Columbus Miller against the Rice-Stix Dry Goods Company and another. Judgment for plaintiff against the defendant Walter L. Vormehr and a verdict in favor of defendant dry goods appeals. Affirmed.

Conrad Paeben, of St. Louis (James T. Roberts, of St. Louis, of counsel), for appellant.

Bryan, Williams & Cave, of St. Louis, for respondents.

NIPPER, C.

This is an action for damages alleged to have been sustained by appellant, on the 26th of December, 1916. Appellant, his brother, and a friend had been out hunting in Jefferson county on Christmas Day, and while returning from this hunting trip, after reaching a point somewhere in St. Louis county, the Ford touring car in which they were traveling became disabled. They telephoned to St. Louis for a car to come out and tow them in. The tow car was fastened to the disabled car, and one of the party remained in the disabled car at the steering wheel, and the other car had succeeded in bringing the disabled car to a point on travois avenue in the city of St. Louis, when, due to some additional disarrangement of the disabled car, it was necessary to stop and fix it before proceeding further. This was after midnight. The occupants of both cars got out, and some were standing on one side of the disabled car and some on the other. Appellant was standing between the rear fender of the tow car and the curbing on the southeast side of the street. Witnesses who were present at the time said they saw the car driven by the respondent Vormehr coming some distance behind the oher two cars at a high rate of speed, and zigzagging in the street; that, without any warning, the car driven by respondent undertook to pass to the right of the cars in front, and between the front cars and the curbing, and in doing so struck and injured appellant.

On trial in the court below, plaintiff obtained judgment against the defendant Vormehr for the sum of $3,000, but the jury returned a verdict in favor of the respondent Rice-Stix Dry Goods Company.

Plaintiff appealed from this judgment, and Vormehr becomes respondent here, as well as the Rice-Stir Dry Goods Company, as one of the grounds for new trial in plaintiff's motion was the inadequacy of the verdict, alleged to be due to the action of the court in limiting the amount to be recovered for medical attention to $100, and in excluding evidence as to his mental condition.

The petition seeks recovery against Rice-Stix Dry Goods Company, as well as Vormehr, on the theory that Vormehr was the agent of and employed by the Rice-Stix Dry Goods Company, and was acting within the scope of his employment at the time of the accident.

The answer of the respondent Rice-Stir Dry Goods Company was a general denial. The separate answer of respondent Vormehr was a general denial, and a plea of contributory negligence.

It is not contended here that Vormehr was not liable.

It seems that respondent Rice-Stix Dry Goods Company had employed Vormehr as its salesman, and he as well as the other salesmen was furnished a Ford car and allowed $25 per month for the upkeep of the car. It was also a part of their business as salesmen to entertain customers, but no...