National Dairy Products Corp. v. Freschi, 31459

CourtCourt of Appeal of Missouri (US)
Citation393 S.W.2d 48
Docket NumberNo. 31459,31459
PartiesNATIONAL DAIRY PRODUCTS CORPORATION, a Corporation, and Albert L. Kern, Plaintiffs-Appellants, v. Robert A. FRESCHI, Mrs. Robert A. Freschi and Richard A. Freschi, a Minor, Defendants-Respondents.
Decision Date21 July 1965

Page 48

393 S.W.2d 48
Albert L. Kern, Plaintiffs-Appellants,
Robert A. FRESCHI, Mrs. Robert A. Freschi and Richard A.
Freschi, a Minor, Defendants-Respondents.
No. 31459.
St. Louis Court of Appeals, Missouri.
July 21, 1965.

Page 49

Richard M. Stout, Philip M. Sestric, Kent E. Karohl, St. Louis, for plaintiffs-appellants.

George E. Lee, Doris J. Banta, St. Louis, for defendants-respondents.

RUDDY, Presiding Judge.

This case was reassigned recently to the writer of this opinion. Plaintiffs appeal from the orders of the Circuit Court sustaining the Motion for Summary Judgment filed by one defendant and Motions for Directed Verdict at the close of plaintiffs' opening statement filed by the other two defendants. One set of events on the 10th day of December, 1957 gives rise to the separate and distinct claims for damages asserted by plaintiffs and stated in separate counts with Count I relating to the claim of the National Dairy Products Corporation and Count II being on behalf of plaintiff Albert L. Kern. The petition alleges that the plaintiff National Dairy Products Corporation was engaged in the distribution of dairy products in the County of St. Louis and for such purpose was the owner of a 1952 Divco truck; that the plaintiff Kern was an employee of the Dairy Company, making deliveries of milk in the 300 block of McDonald Avenue in Webster Groves, Missouri; that defendant Richard Freschi was three years of age at the time and the son of the other two defendants.

Page 50

It is alleged that the driver of the truck, plaintiff Kern, 'lawfully parked' at the curb in the 300 block of McDonald Avenue while he made deliveries of milk in said block in the scope of his duties as such employee; that while the driver was away from the truck the defendant Richard Freschi 'negligently and carelessly entered upon the same, released the brake thereof and attempted to drive and operate the same down said MacDonald Avenue,' and as a direct result the truck was caused to collide with a building and considerable damage resulted to the truck and to the dairy products contained in the truck, for which the dairy company asks damages in the total amount of $500.00.

The dairy company alleges that the damage was the direct and proximate result of acts of negligence of the defendants, in that:

'a. Defendants Mr. and Mrs. Robert Freschi and each of them negligently and carelessly failed to use ordinary care to restrain and control their said son, Richard Freschi, when they knew or in the exercise of ordinary care could have known that said child had a propensity for entering on and attempting to drive trucks.

'b. Said defendants negligently and carelessly failed and refused to use ordinary care to restrain their said child to prevent him from entering upon and releasing the brake of plaintiff's truck.

'c. Defendant Richard Freschi negligently and carelessly released the brake of plaintiff's truck and attempted to drive same without having secured a driver's license from the State of Missouri.

'd. Said defendant Richard Freschi negligently and carelessly entered upon plaintiff's truck, released the brake thereof and attempted to drive same when he was unable to do so.

'e. Said defendant Richard Freschi negligently and carelessly drove, steered and operated plaintiff's truck into, against and upon the aforesaid building.'

Plaintiff National Dairy Products Corporation states that its said damages were and are the direct and proximate result of the negligence alleged.

On behalf of Plaintiff Kern, in addition to the allegations heretofore recited, it is alleged that he saw the defendant Richard Freschi attempting to drive said truck down the street; that the life and limb of said child were endangered by driving the said truck; that he, plaintiff Kern, attempted to stop said truck and to rescue the child and in so doing, he was dragged by said truck for a distance of approximately 200 yards and sustained numerous physical injuries to his body and was caused to expend $25.00 for medical care and attention. He alleges further that all of said injuries resulted directly and proximately from the negligence of defendants as set forth in the petition.

To this petition defendant Richard Freschi filed his Motion for Summary Judgment under the provisions of Civil Rule 74.04 V.A.M.R. on the ground that the petition revealed that he was a minor of the age of three years and under the laws of the State of Missouri there could be no recovery against a person of the age stated where such recovery is sought upon the ground of negligence and carelessness of said person.

This Motion for Summary Judgment was sustained by the trial court and although plaintiffs have undertaken to appeal from this order, they have not perfected their appeal as to this order. They have failed to raise any question about this ruling in their points relied on. By failing to do so, they have abandoned any claim of error as to such ruling. State v. Brookshire, Mo., 325 S.W.2d 497, 500.

The defendant parents filed Answer to the petition in which they admitted the family relationships and denied each and every other averment. The Answer also alleged contributory negligence on the part of the plaintiffs and assumption of risks of injury and damage by plaintiffs.

Page 51

On November 26, 1962, the cause came up for trial on the petition and answer as set out and after the jury had been selected and sworn to try the case, the plaintiffs' attorney proceeded to make an opening statement. Portions of this opening statement pertinent to the questions here presented are as follows:

'Count One of the petition is brought by the St. Louis Dairy or National Dairy Products Corporation for damages to a truck and for the destruction of about $200.00 worth of milk.

'Count Two is brought by Mr. Kern for some personal injury sustained out of the same accident that I am about to describe to you.

'The defendants in the case are Robert A. Freschi, who is here in court with his wife. They live together with their small son, Richard, on McDonald Place in Webster Groves.

'Back in 1957, on December 10 of that year, the evidence will show that the Freschis lived in their home, I think it is 330 McDonald Place, that Mr. Kern was employed by the National Dairy Products Corporation as a milk wagon driver; that early on that day he was on his route, which included the 330 block of McDonald and parked his truck at the curb; that he turned off the ignition switch and put on the brakes, and he left the truck with the doors open, as milkmen do, to deliver some milk.

'The evidence will show that when he got out of the truck he didn't see young Richard Freschi anywhere around, but when he started to make a delivery of milk his attention was attracted by the motion of a truck and he turned around and noticed the truck rolling down the hill, which is a very steep hill.

'The evidence will show that he threw a container down and caught hold of the truck, and he was successful in climbing up to the door and getting his hand inside to hold the boy before the crash came. The crash was in front of Mr. Ballwin's house where the truck knocked a porch off Mr. Ballwin's house.

'The evidence will show that Richard was approximately three years of age--give or take a month or two.

'The evidence will show that he was in his pajamas at the time.

'The evidence will further show that prior to this time, at least on two or three occasions, Mr. Kern had seen young Mr. Freschi two or three blocks away from his home in pajamas in the early morning.

'On another occasion, although Mr. Kern didn't know about the other matter until after the accident occurred, young Freschi climbed down the sewer and moved down a couple manholes before they fished him out. And the evidence will show he was found in a neighbor's house across the street, having climbed in through a window. The evidence will show he probably escaped from the Freschi home through a window from his nursery.

'We are unable to find any evidence that young Freschi had ever been known to climb into and start an automobile or truck before.

* * *

* * *

'It is our contention that under these circumstances Mr. and Mrs. Freschi are liable to the damages that St. Louis Dairy Company sustained to its truck and the milk products and the injury Mr. Kern sustained in his attempt to rescue Richard Freschi from serious injury; that Mr. Kern was actually successful in his effort to hold him back so that he would not be bounced against the windshield. He was not able to get inside the truck, he was hopping alongside of it, but he was not able to get in before it hit the house. It is a very steep hill that drops down toward the Ballwin's home, which is the house that was hit.

'It is our contention that Mr. and Mrs. Freschi knew or in the exercise of ordinary care should have known their young son

Page 52

needed supervision in the early hours of the morning when he had a way of getting out of the house to get to places where he didn't belong. They are liable for the reasonable losses sustained by the St. Louis Dairy Company and Mr. Kern in connection with Mr. Kern's efforts to rescue young Richard, and we would ask you to return a verdict in our favor if we show you these facts.

'Mr. Lee suggests, and correctly, this was about 7:00 in the morning.'

Following this opening statement, defendants made an oral motion for a directed verdict in their favor and also filed a written motion for directed verdict. The court sustained this motion, directed one of the jurors to sign a form of verdict in favor of defendant parents and thereupon a judgment was rendered against the plaintiffs on both Court I and Court II.

Neither party argues or briefs any point with reference to contributory negligence, and the case is presented to this court upon the question of whether or not the petition and opening...

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