Parsons v. Himmelsbach

• Decision Date: 06 March 1934
• Docket Number: No. 22655.,22655.
• Citation: 68 S.W.2d 841
• Parties: PARSONS v. HIMMELSBACH.
• Court: Missouri Court of Appeals

68 S.W.2d 841

PARSONS v. HIMMELSBACH.

No. 22655.

St. Louis Court of Appeals. Missouri.

March 6, 1934.

Rehearing Denied March 21, 1934.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be published in State Reports."

Suit by Arminta Parsons against Arthur Himmelsbach. From a judgment for plaintiff, defendant appeals.

Affirmed.

Leahy, Saunders & Walther, Harold F. Hecker, and Lyon Anderson, all of St. Louis, for appellant.

Greensfelder & Grand and F. M. Hemker, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, hereinafter referred to as plaintiff, arising from a collision between an automobile in which plaintiff was riding, and an automobile operated by appellant, hereinafter referred to as defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff for $3,000. Following an unavailing motion for a new trial, defendant brings the case to this court by appeal.

Plaintiff's amended petition alleged that on December 8, 1929, she was riding in an automobile which was proceeding in a northerly direction on Big Bend boulevard, near its intersection with Clayton road, both public thoroughfares in the city of Richmond Heights, Mo., and that the automobile in which she was riding was struck and collided with by an automobile owned by defendant, which was then being operated by him in an easterly direction on Clayton road; that by reason of the collision plaintiff sustained severe and painful injuries, all as a direct and proximate result of the negligence of defendant.

There were nine assignments of negligence charged against defendant in the petition, but the case was submitted to the jury on three, namely, failure to give warning of the approach and movement of his automobile, failure to operate his automobile as close to the right-hand side of the highway as practicable, and negligence under the humanitarian doctrine.

Defendant filed an answer containing a general denial, and for further answer averred that at the time of the collision plaintiff was riding in an automobile owned by James Parsons, and operated by F. J. Hendricks; that plaintiff and the said Hendricks were engaged in a joint mission and enterprise; and that plaintiff's injuries, if any, directly resulted from the negligence of said Hendricks in the operation of said automobile.

There were eight assignments of negligence charged against Hendricks in the answer, including failure to make a boulevard stop before entering the intersection mentioned, in violation of sections 1 and 3 of Ordinance 993 of the city of Richmond Heights, St. Louis county, Mo.

The answer charged that the negligence of Hendricks, in the respects alleged, directly contributed to cause whatever injuries plaintiff sustained.

Defendant's answer also contained a plea of contributory negligence charging that plaintiff saw, or by the exercise of ordinary care would have seen, defendant's automobile being operated and driven eastwardly over and along Clayton road, in time thereafter to have warned F. J. Hendricks, the driver of the automobile in which plaintiff was riding, of the approach of defendant's automobile, and could thus have avoided the collision, but that she negligently failed to do so.

The questions raised by defendant on this appeal all concern the court's action in giving and refusing instructions.

Defendant contends that the trial court erred in giving plaintiff's instructions No. 1 and No. 2, because these instructions ignored the issue of joint mission and enterprise pleaded by defendant in his answer, and that the court further erred in refusing to give defendant's instructions Nos. E, F, G, and H, based on that issue, for the reason that under the evidence the issue of joint enterprise was for the jury.

The only testimony touching the issue of a joint mission and enterprise was testimony elicited from plaintiff and her witnesses. Defendant offered no testimony bearing on this question.

William Parsons, plaintiff's husband, testified:

"We had all gone down together to visit my married son, who lives in Lebanon, and Hendricks had gone down along with us. This car belongs to my son, but I paid the repair bill. On the expense of this trip I did not pay for all of the gas. I paid for some of it. I don't remember if I paid for any of the other expense of that trip.

"Hendricks went along down with us and visited down there at Lebanon, and we were all coming home together just as we had gone down together. When we left Lebanon coming home my son drove. I did not drive any time coming home. They changed somewhere on the way. I do not remember where. My son did not ask Hendricks to take the wheel. I think Mr. Hendricks volunteered to take it. I think they changed once going down, as well as I remember, and once coming back."

James Parsons, son of plaintiff, testified that he was the owner of the automobile in which his father, mother, sister, and himself were riding at the time of the collision, and that the car was being driven by Hendricks.

Plaintiff herself testified: "We had all been down to Lebanon visiting our married son, and Hendricks went down along with us, and our son and Hendricks changed off and drove. The distance down there is about a hundred and eighty-four miles. They had made just one change in driving coming back. My son drove first, and Mr. Hendricks changed off with him, took his place when he stopped driving. I do not know where that happened, but I remember stopping at Rolla for gas, then later on they changed. We did not stop anywhere for supper, but I remember stopping at Rolla for gas, then later on they changed. We had supper before we left my son's. Twice we stopped, that is all I remember. I couldn't say who got that gas; I didn't pay any attention who paid for it."

The evidence does not support the charge that plaintiff and Hendricks, the driver of the car, were engaged in a joint mission and enterprise at the time of the collision. There is nothing in the record tending to show that the driver Hendricks was subject to the control of plaintiff in the operation of the automobile in which she was riding; hence there was no basis in the evidence to support an instruction on the issue of joint mission and enterprise.

Defendant contends in his brief that the evidence shows that plaintiff paid for all the repairs to the car after the accident, and that she paid for gasoline on the trip, and that such evidence, with the further evidence that Hendricks was driving a car owned by plaintiff's son, who was a passenger in the rear seat, was sufficient to make the issue of joint control, one for the jury. In support of this argument defendant cites Pence v. Kansas City Laundry Co., 59 S.W.(2d) 633, wherein the Supreme Court discussed the issue of joint control and the refusal of a trial court to give proper instructions on that issue. The opinion in the Pence Case cannot be said to be applicable to the facts in the case at bar. In that case the Supreme Court found and held that the issue of joint control was "substantially supported" by the proof. Pence v. Kansas City Laundry Co. (Mo. Sup.) 59 S.W.(2d) 633, 636.

We cannot say the same with respect to the proof on that issue in this case.

Of course, if the charge of joint mission and enterprise in the case at bar had been supported by evidence, then it would have been the duty of the court to give an instruction on such issue when requested by the defendant, as the Supreme Court held in the Pence Case; but in the case at bar, while the issue was raised in the pleadings, there was no evidence to support it. Defendant's argument in his brief, which we have referred to above, is based upon an erroneous statement of the evidence. Defendant erroneously attributes to plaintiff testimony which was given, not by plaintiff, but by plaintiff's husband.

The record fails to show anywhere that plaintiff paid any part of the expenses of the trip. She was not the owner of the car, and had no ownership interest in it. There is no showing that she had any part in or any control over the operation of the automobile in which she was a passenger. There is no evidence from which it can reasonably be inferred that plaintiff and Hendricks were engaged in a joint mission and enterprise, whereby Hendricks' negligence would be imputable to plaintiff. We, therefore, hold that the trial court did not commit error in refusing to include that issue in plaintiff's instructions No. 1 and No. 2, and did not err in refusing to give defendant's instructions Nos. E, F, G, and H, which were based on that issue. Corn v. Kansas City, C. C. & St. J. Ry. Co. (Mo. Sup.) 228 S. W. 78; Stevens v. Westport Laundry Co., 224 Mo. App. 955, 25 S.W.(2d) 491; Gregory v. Jenkins (Mo. App.) 43 S.W.(2d) 877.

Defendant makes further complaint against plaintiff's instructions No. 1 and No. 2, which were based on primary negligence. Each concluded with a proviso requiring the jury to find that plaintiff was exercising ordinary care for her own safety. Defendant insists, however, that plaintiff was guilty of contributory negligence as a matter of law, and hence it was error for the court to submit to the jury questions of defendant's primary negligence.

Defendant argues that the evidence shows that plaintiff could have seen approaching traffic for one-half mile west on Clayton road, but nevertheless permitted herself to be driven at a high speed past a stop sign into the intersection without looking, and without protest.

Defendant's witness Barbee did testify that if a person were standing at the intersection of Big Bend boulevard, and looking directly west, such person could see for about one-half mile. That may be taken as true, but plaintiff was not standing at the intersection. She was riding northwardly in the rear seat of an automobile on the east side of Big Bend...