Murphy v. Loeffler

• Citation: 39 S.W.2d 550,327 Mo. 1244
• Decision Date: 05 June 1931
• Docket Number: 29621
• Parties: Corrine Holland Murphy v. Anton Loeffler and Anton Loeffler, Jr., Appellants
• Court: United States State Supreme Court of Missouri

39 S.W.2d 550

327 Mo. 1244

Corrine Holland Murphy v. Anton Loeffler and Anton Loeffler, Jr., Appellants

No. 29621

Supreme Court of Missouri

June 5, 1931

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg for appellants.

(1) The court erred in refusing the instructions in the nature of a demurrer to the evidence requested by defendant, Anton Loeffler. The evidence of both plaintiff and defendants conclusively showed that Anton Loeffler, Jr., was driving his father's automobile at the time in question, on a mission of his own, and was not the agent, servant or employee of his father, and was not on a mission of his father at the time. Hays v. Hogan, 273 Mo. 1; Guthrie v Holmes, 272 Mo. 215; Bolman v. Bullene (Mo Sup.), 200 S.W. 1068; Most v. Hirsh, 199 Mo.App. 1; Buskie v. Januchowsky, 218 S.W. 696; Drake v. Rowan, 216 Mo.App. 263; Bright v. Thacker, 215 S.W. 788. (2) The court erred in giving at the request of plaintiff, Instructions 1 and 2. Both are erroneous in telling the jury that if Anton Loeffler, Jr., was driving the automobile in question with the consent and knowledge of his father, and in the line and scope of a duty, business and agency of his father, then his father, defendant Anton Loeffler, was liable. (a) There was no evidence tending to prove that Anton Loeffler, Jr., was driving the automobile in question in the line and scope of a duty, business and agency of his father. Authorities supra. (b) The consent and knowledge of the father, is immaterial and did not constitute the son the agent or servant of his father. Hays v. Hogan, 273 Mo. 24. (c) Said instruction does not define "scope of a duty, business and agency of his father," and is misleading and erroneous. Bobos v. Packing Co., 317 Mo. 108. (d) Both of said instructions are erroneous, in that each of them submits the case under the humanitarian doctrine and does not require the jury to find that the driver of the automobile negligently failed to stop the automobile or slacken the speed thereof, or swerve the same so as to avoid striking and injuring the plaintiff and her husband.

Walter L. Brady for respondent.

The father's ownership of the automobile being admitted, and evidence adduced to show that his minor son was engaged in an errand or mission on the father's behalf at the time the accident occured, it was proper to submit the question of the father's liability to the jury. Hampe v. Versen (Mo. App.), 32 S.W.2d 793; Barz v. Fleischmann Yeast Co., 308 Mo. 288; Curtis v. Harrison (Mo. App.), 253 S.W. 474; Mebas v. Werkmeister (Mo. App.), 299 S.W. 601; Malone v. Small (Mo. App.), 291 S.W. 163; Edwards v. Rubin (Mo. App.), 2 S.W.2d 205; McCarter v. Burger (Mo. App.), 6 S.W.2d 979.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Plaintiff sued Anton Loeffler and his son, Anton Loeffler, Jr., for $ 10,000 damages for the death of her husband, George Holland, in the first count, and for $ 25,000 damages for personal injuries to herself, in the second count. The damages sued for arose out of a collision of an automobile owned by Anton Loeffler and driven by Anton Loeffler, Jr., with plaintiff and her husband, George Holland, while she and he were on foot in the roadway at the intersection of Gravois Avenue and Itaska Street in the city of St. Louis, on November 7, 1926. A trial was had and there was a verdict against both defendants on the first count for $ 5,000, and on the second count for $ 7,500. Motions for a new trial were overruled, and defendants took and perfected their appeals from the judgment upon the two counts for $ 12,500. After the death of her husband, George Holland, and after suit had been filed, plaintiff married a man named Murphy. For convenience the defendants Loeffler sometimes may be referred to as father and son.

Plaintiff and her husband, George Holland, spent the evening of Saturday, November 6, 1926, visiting friends on Varrelmann Avenue in St. Louis, and they left for their home about one-thirty o'clock in the morning of November 7th. They walked a short distance to the southwest corner of Gravois Avenue and Itaska Street, to catch an eastbound Cherokee street car, and they stood waiting for twenty minutes upon the sidewalk. Then they saw a car approaching from the west, and plaintiff testified they walked into the roadway of the street and stood at a point where cars usually stopped for passengers and about four feet from the track upon which the car was running. The south rail was about twenty and one-half feet from the south curb, and plaintiff and her husband were about sixteen feet from the south curb. Plaintiff held on to her husband's arm, as she stood with him, and saw the headlight of the street car a block and a half distant. She also saw the headlight of an automobile, which, when first seen, was about one block away. But it approached fast as she and her husband held tightly to each other. Plaintiff exclaimed: "Oh, look at those lights!" She and her husband were struck by the automobile, and she recovered consciousness in the City Hospital some hours later. She was removed to the Missouri Pacific Hospital, and was a patient there from November 8, 1926, to February 16, 1927. She never saw her husband again, for he died a few hours after he was injured.

Plaintiff testified that she and her husband did not move from the time that they walked to the safety zone in the street until they were struck. Defendant Loeffler, Jr., driver of the auomobile, testified that he did not see plaintiff and her husband until he was twenty feet from them. They seemed to be jerking each other. One was pulling forward and the other was drawing back. He applied his brakes and swerved to the left, but they kept up the pulling and hauling, and he struck plaintiff and her husband with the left front fender and headlight. On direct examination he testified that they were stepping into the street when he first saw them, but on cross-examination he said that they were between the south rail of the car track and the south curb of Gravois Avenue.

There was a street gas lamp at the southeast corner and also at the northwest corner of Gravois Avenue and Itaska Street. Plaintiff's testimony that a filling station at the northwest corner was illuminated at the time of the accident was not successfully disputed. It was a crisply cold, clear, moonlight night according to plaintiff, and this statement was not seriously questioned. Henry Costa, a taxicab driver, testifying for defendants, did not consider the intersection of Gravois Avenue and Itaska Street well lighted, but a few minutes before the accident, while he was driving west on the north side of Gravois Avenue, he distinctly saw the plaintiff and her husband standing on the sidewalk on the south side of Gravois, the width of the street from him. Defendant Loeffler, Jr., testified that, on the night of the accident, the headlights of the automobile would reveal a human form fifty or sixty feet away.

Plaintiff could not estimate the speed of the automobile. "It came so quickly, all I could see was lights," she testified. She kept watching the approaching lights. She could not move or run and she and her husband drew more closely together. Andrew J. Grega, a policeman off duty, was walking along Itaska Street, and was within one-half block of Gravois Avenue. He saw plaintiff and her husband standing in position to board the street car. He saw defendant Loeffler, Jr., driving his touring car "at a high rate of speed," on a straight line, and saw the automobile strike Mr. and Mrs. Holland. Loeffler, Jr., "beat it for about two hundred yards," according to Grega, but it was obvious that the policeman was not sure whether it was feet or yards. Loeffler himself testified that he stopped within eight feet of the prostrate bodies and then pulled over to the southeast corner. Grega also testified that when Loeffler, Jr., stopped and the policeman approached him, the young man said: "I didn't see them." Loeffler, Jr., did not recall that he made this statement. He would not say that he did not make it, and he might have said it. He testified that he was driving the automobile when about a block away from Itaska Street, at about twenty-five to twenty-eight miles per hour, but he slowed down to twenty-three to twenty-five miles as he approached Itaska Street. He testified that he could stop the automobile when going twenty-five miles an hour within twenty-four feet. There was agreement of witnesses that the street was paved and was dry.

It was admitted that plaintiff's husband, George Holland, died from the injuries which he received when he was struck by the automobile. The personal injuries received by plaintiff were not disputed. She suffered a linear fracture of the skull which produced paralysis of the left side of the face. A small chip of bone was knocked off the left knee cap and her right wrist was fractured. This last injury made necessary an incision to put the bones in place. Scars on the forehead and right wrist were pronounced permanent. Plaintiff at the time of the accident was earning $ 100 per month in her employment as a stenographer for the Missouri Pacific Railroad.

Plaintiff's amended petition pleaded as negligence, in both counts, excessive and dangerous rate of speed of the automobile and failure of the driver to maintain a watch and to warn. Plaintiff also pleaded the last-chance doctrine, upon which assignment of negligence alone the case went to the jury.

Defendant Loeffler, Sr., by his separate answer admitted that he owned the automobile in question and that his son was driving it at the time of the accident at Gravois Avenue and Itaska Street. The elder...