Myers v. Hauser

• Decision Date: 22 May 1933
• Docket Number: No. 17760.,17760.
• Citation: 61 S.W.2d 214
• Parties: MYERS v. HAUSER.
• Court: Missouri Court of Appeals

61 S.W.2d 214

MYERS v. HAUSER.

No. 17760.

Kansas City Court of Appeals. Missouri.

May 22, 1933.

Rehearing Denied June 12, 1933.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Action by Mary Myers against E. Wynona Hauser. Verdict was rendered for defendant, and from an order granting plaintiff's motion for new trial, defendant appeals.

Affirmed, and cause remanded.

Henry M. Shughart, Lowell R. Johnson, and Carl J. Marold, all of Kansas City, and W. M. Anderson, of Harrisonville, for appellant.

O. H. Swearingen, of Kansas City, and Will H. Hargus, of Harrisonville, for respondent.

TRIMBLE, Judge.

This is an action for damages brought April 3, 1931, by plaintiff, 77 years of age, to recover damages arising from an automobile accident occurring September 22, 1930, at 11 p. m., on Mechanic street, Harrisonville, Mo. Originally the suit was for $30,000 and against several defendants, presumably the Interstate Pipe Line Company, Interstate Gas Company, the city of Harrisonville, and including the present defendant and now appellant, E. Wynona Hauser. Thereafter plaintiff made a separate settlement with all the defendants except the said present defendant, whereby plaintiff received the sum of $450 in settlement with the said other defendants but with the full understanding she was not releasing her cause of action against the defendant E. Wynona Hauser.

Thereupon plaintiff on November 25, 1931, filed an amended petition against E. Wynona Hauser only and later amended the prayer of that petition by reducing said prayer to $7,500 damages, which is the amount now involved.

The original petition had alleged, among other things, that the gas company and the pipe line company had negligently dug up West Mechanic street and negligently left unguarded ditches and piles of dirt in said street and carelessly left said street in a rough, uneven, and dangerous condition.

And, in her amended petition, plaintiff alleged that at 11 o'clock p. m. of September 22, 1930, she was riding west over and along West Mechanic street in Harrisonville, "in an automobile operated by defendant E. Wynona Hauser and was using due care for her own safety." That defendant Hauser "negligently and carelessly caused or permitted the automobile, in which plaintiff was riding, to run into the piles of dirt and ditches so carelessly and negligently left as aforesaid and became stalled." That said defendant Hauser "got out of said automobile and with the aid and assistance of others negligently and carelessly pushed said automobile out of said piles of dirt and ditch without anyone inside said automobile to operate and control the same, and negligently and carelessly attempted to control said automobile from the outside of same, and negligently and carelessly caused or permitted said automobile to run away and throw plaintiff out of said automobile and injure her has herein set out" (which injuries were described). That "all of her injuries so received and resulting therefrom are permanent, progressive and lasting in their character and effect and that they were directly caused by the negligence and carelessness of the defendant."

Defendant's amended answer contained first a general denial coupled with an allegation that:

"If plaintiff was injured, such injury was not caused by the negligence, omission, or want of care of this defendant, but was the result of the negligence, omission, and want of care on the part of the plaintiff in attempting to jump from said automobile at said time and place, and in opening the door of said automobile, and in remaining in said automobile until it began to move, after she knew or ought to have known that it had become lodged and the further movement thereof impeded by piles of dirt and ditches negligently left unguarded in said street by the City of Harrisonville, the Interstate Pipe Line Company, Interstate Gas Company, and the Benson & Henderson Company; that each and all of said careless and negligent acts and omissions on the part of the plaintiff, acting independently and concurrently, directly caused said accident and the injuries, if any, complained of, and that this defendant is not liable therefor."

3. That "plaintiff and this defendant were driving the said automobile at said time and place on a joint and common enterprise, and that this defendant was at said time and place acting as the servant and agent of said plaintiff, and within the scope of her employment, as such, and this defendant is not liable therefor."

4. That "if plaintiff was damaged at the time and place in said petition set forth said plaintiff accepted the sum of four hundred fifty ($450.00) dollars, paid on or about November 25, 1931, by the City of Harrisonville, the Interstate Pipe Line Company, Interstate Gas Company, and the Benson & Henderson Company by and through their agents, servants, and employees acting in the scope of their employment as such, the name or names of said servants and/or employees being unknown to this defendant but well known to the plaintiff, and hence, are not set out herein, in full payment, settlement, and satisfaction of all injuries and damages alleged to have been sustained by plaintiff at the time and place set out in her petition, and that this defendant is not liable therefor."

Plaintiff's reply was a general denial and the trial resulted in a verdict for defendant. Motion for new trial was duly filed by plaintiff, which was by the court sustained, "and a new trial is granted upon the ground of giving instruction number seven." Whereupon defendant appealed.

The evidence in plaintiff's behalf tends to show the following:

Plaintiff, Mrs. Myers, lives in Garden City, Mo., and defendant is her daughter. At the time of the injury, the defendant resided in La Crosse, Wis., but was here in Missouri visiting her mother. Some time prior to her visit to her mother, the latter having gotten into financial difficulties, her said daughter took over the mother's farm and at the time of said visit was the owner of said farm. In coming in her automobile from La Crosse, the defendant, Mrs. Hauser, drove and brought with her a Mr and Mrs. Lemke, who had relatives in Kansas, and after staying overnight at the farm, defendant, her mother the plaintiff going along, took the Lemkes out to their Kansas relatives and then returned to the farm and visited with her mother.

For the past thirty years, plaintiff, who is 77 years of age, has lived on this farm southeast of Harrisonville, near Garden City, Mo. Formerly defendant made her home with her mother on this farm, but on her marriage several years before she had removed to Wisconsin and had lived there as above stated. Plaintiff's husband, the father of defendant, was dead. Notice to foreclose the mortgage on said farm had been given and the sale was set at Butler, Mo., for September 22, 1930, which is the date of the automobile accident in question. Some time prior to this, in an effort to save the farm, it had been deeded by the mother, as above stated, to the defendant. The mother, however, continued to reside on the farm, paid no rent, hired the help, and paid what interest she could from the crops, and otherwise considered and treated the farm as her home.

On the day of the accident the mother and defendant left said farm together in the forenoon, defendant driving her car, and first went to Kansas City, where defendant borrowed some money with which to pay the interest due on the mortgage about to be foreclosed. From Kansas City they then drove to Butler, Mo., passing through Harrisonville on the way; defendant driving as before. At Butler, defendant paid the interest, after which they returned to Harrisonville where was the home of Mrs. Lyons, another daughter of the plaintiff. The road to the Myers farm led south about three miles from Harrisonville and the farm was between Butler and Harrisonville. Plaintiff wanted to go from Harrisonville on to her home; but defendant who was driving wanted to go to her sister's home in Harrisonville and there they went, and plaintiff stayed at her daughter Mrs. Lyons' home until about 11 p. m., when her daughter the defendant returned from Kansas City (whither she had gone in the meantime bringing with her to Harrisonville some friends she had brought from Kansas City). At about 11 o'clock p. m., as above stated, the defendant (with her mother the plaintiff, and the defendant's friends from Kansas City, in the defendant's car) started to leave Harrisonville and go to the farm, the mother's home, for the purpose of spending the night there visiting with the mother. On this particular date the streets in Harrisonville, particularly Mechanic street, which led directly from Mrs. Lyons' home (where they were) to the highway running to and past the farm, were badly ditched and torn up because of the fact that pipe lines and gas connections were being placed in the streets. The night was dark and the streets were wet and muddy and difficult for automobile traffic.

Mechanic street, at the scene of the accident, has a downgrade to the west, terminating at the railroad tracks near the highway. The automobile was proceeding west downhill and toward the railroad tracks. As a result of the mud and ditches the automobile stalled, making it necessary for the occupants of the front seat (defendant and Mr. Lemke) to get out of the car and push it in order to get the car out of the ditch and mud. Mrs. Lemke and the plaintiff remained in the rear seat of the car while it was being pushed out of the mud.

They succeeded in moving the car the first time, and defendant returned to the car at her place at the wheel and resumed her driving, but a few feet further on the car again stalled in another ditch. Again, Lemke and defendant got out to push as before; but this time they left the engine of the car running and in gear, with nobody...