Monan v. Arkansas Grocer Co., a Corp.

• Decision Date: 02 July 1924
• Parties: O. E. MONAN, a Minor, by J. R. MONAN, his Guardian and Curator, Respondent, v. ARKANSAS GROCER CO., a Corporation, Appellant
• Court: Missouri Court of Appeals

264 S.W. 486

216 Mo.App. 289

O. E. MONAN, a Minor, by J. R. MONAN, his Guardian and Curator, Respondent, v. ARKANSAS GROCER CO., a Corporation, Appellant

Court of Appeals of Missouri, Springfield

July 2, 1924

Appeal from the Circuit Court of Pemiscot County.--Hon. Henry C Riley, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Ward & Reeves for appellant.

(1) The court erred in overruling the defendant's demurrer at the close of the plaintiff's case. (a) If plaintiff recover at all on the charge of negligence he must recover upon the identical acts of negligence pleaded in his petition. Wren v. Transfer Co., 241 S.W. 464, l. c. 469; Rooker v. Ry. Co., 204 S.W. 557. (2) The court erred in the admissibility of testimony. Plaintiff was permitted to show statements alleged to have been made by the driver of defendant's truck, not at the time or place of the accident, but days afterwards. The admission of such testimony as part of the res gestae was reversible error. Such testimony can only be used to contradict or impeach a witness, and cannot be used as testimony against the defendant corporation. Barker v. Railway, 126 Mo 143; McDermott v. Railway, 73 Mo. 559; Koenig v Union Ry. Co., 173 Mo. 721; Cross v. Coal Co., 186 S.W. 528. (3) The verdict in this case, in the amount of $ 400, was excessive, as the most proof any witness gave upon which a jury could base a verdict was that the car could be repaired for $ 150 to $ 200.

McKay & Medling for respondent.

No brief filed by respondent.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.--

The plaintiff, owner of a Studebaker automobile which was used by him as a taxi, brings this suit by his guardian and curator for damages to his automobile alleged to have been caused by a collision with one of defendant's trucks, driven at the time by one of its employees. The collision occurred at the intersection of Third street, running east and west, and Ward Avenue, running north and south, in the city of Caruthersville, Mo. One allegation in the petition is as follows:

"That on approaching the crossing at Ward Avenue by Third street it became and was the duty of defendant to exercise ordinary care on his part and to have its truck under such control as it might have prevented running against and striking plaintiff's said automobile, but plaintiff says that at the time plaintiff's car entered upon Ward Avenue, as aforesaid, defendant's said truck was some fifty feet north of said crossing and the driver and agent of defendant saw plaintiff's automobile upon said Ward Avenue, or by the exercise of ordinary care on his part could have seen the same in ample time to have checked the truck and prevented striking plaintiff's said automobile, but that the driver and agent of defendant, instead of checking the speed of said truck, increased the speed of the same and rushed upon and struck plaintiff's said automobile with great force and violence as aforesaid, and that the injury and damage herein complained of to plaintiff was wholly occasioned by the carelessness, recklessness and negligence of defendant by and through its agents, servants and employees."

There were two other grounds of negligence alleged in the petition but these were abandoned when submitted to the jury in the instructions.

Without detailing, plaintiff had evidence tending to show that as his car entered Ward Avenue, headed west and going five or six miles an hour, defendant's truck was approaching him going south and some thirty to fifty feet north of him, and that before his automobile cleared the defendant's truck ran into the rear end of his automobile breaking the frame, fender, etc. The collision occurred in broad day light and there is no evidence of any other cars or vehicles interfering with the courses of the automobile or the truck.

The first point raised by appellant is that there having...