Pfeifer v. United Bakers Supply Co.

• Decision Date: 07 April 1942
• Docket Number: No. 25986.,25986.
• Citation: 160 S.W.2d 795
• Parties: PFEIFER v. UNITED BAKERS SUPPLY CO.
• Court: Missouri Court of Appeals

160 S.W.2d 795

PFEIFER v. UNITED BAKERS SUPPLY CO.

No. 25986.

St. Louis Court of Appeals. Missouri.

April 7, 1942.

Rehearing Denied April 21, 1942.

Appeal from Circuit Court, City of St. Louis; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by A. W. Pfeifer against the United Bakers Supply Company for injuries and damage sustained in an automobile collision. From a judgment for plaintiff, defendant appeals.

Reversed.

Charles A. Neumann, of St. Louis, for appellant.

Igoe, Carroll, Keefe & Coburn, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against United Bakers Supply Company, a corporation, and Edward R. Franz, as defendants, to recover for personal injuries to plaintiff and damages to his automobile resulting from a collision of an automobile driven by plaintiff and an automobile driven by defendant Edward R. Franz. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant United Bakers Supply Company in the sum of $5,000, plaintiff at the close of all the evidence having dismissed his cause of action as to defendant Edward R. Franz. Defendant United Bakers Supply Company duly appealed to this court.

Plaintiff's amended petition alleged that on or about the 29th day of March, 1939, defendant Franz, acting as agent and servant of defendant United Bakers Supply Company, was driving an automobile on public highway No. 40 in Fayette County, Illinois, in a generally westerly direction and approaching an automobile driven and operated by plaintiff in a generally easterly direction; that, as plaintiff approached the automobile driven by defendant, said automobile was driven to its left across the center line of the highway to the left side thereof and against the automobile of plaintiff, injuring plaintiff and damaging his automobile; that Franz was the agent, servant and employee of defendant United Bakers Supply Company and was at the time engaged in the business of said corporation and acting within the scope of his authority from it.

Plaintiff alleged that his injuries and the damage to his automobile were the proximate result of the negligence of defendants in the following particulars: Failure to drive their automobile on their right-hand side of the highway; negligently swerved their automobile and drove the same on their left-hand side of the highway; failed to keep a lookout ahead of their said automobile; failed to keep their automobile under control and to operate it so as not to endanger others lawfully driving on the highway; violation by defendants of Sections 151 and 152, c. 95½, Illinois Revised Statutes, 1939.

Section 151, supra, required that upon all roadways of sufficient width "a vehicle shall be driven upon the right half of the roadway", except under certain conditions stated therein but not involved in this case.

Section 152, supra, required drivers of vehicles proceeding in opposite directions to pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction, each driver "shall give to the other at least one-half of the main traveled portion of the roadway as nearly as possible."

The answer of defendant United Bakers Supply Company was a general denial.

Prior to the trial, on suggestion of the insanity of defendant Franz the court appointed Joseph M. Walsh as guardian ad litem of said defendant, who filed an answer containing a general denial.

Plaintiff's testimony in substance was that on the date mentioned he was driving his automobile eastwardly on highway No. 40 running from the town of Vandalia to Mulberry Grove in the State of Illinois; that the highway was paved with concrete and was about eighteen feet wide, having a place for two lines of traffic, one going in one direction and one going in the other; that there was a black mark down the middle of the highway to divide it; that plaintiff was going east on his right-hand side of the highway and defendant Franz, driving his automobile, was coming west; that Franz' automobile was astraddle of the black mark in the middle of the highway; that, as plaintiff's automobile approached a sharp curve, he put on his brakes to slow down after he saw defendant's automobile coming towards him, and pulled over to the side and onto the shoulder on his right-hand side of the road as far as he could to get out of the way of defendant's automobile; that the had almost stopped when Franz' automobile collided with his automobile; that the shock of the collision threw plaintiff up against the dashboard of his car and knocked the breath out of him; that he was dazed and the force of the blow broke the steering wheel down; that his head struck against something, he did not know what, and for about a minute he could not move; that at the time of the collision Franz was driving his automobile across the middle line of the highway at a speed of about thirty-five miles an hour.

Plaintiff described in detail the nature and extent of the injuries he sustained as a result of the collision, and presented Dr. H. O. Carleton of West Frankfort, Illinois, and Dr. C. H. Moore of Vandalia, Illinois, who testified at length concerning said injuries.

Hugh Kirkman, a farmer of Mulberry Grove, Illinois, and W. J. Mayfield, a garage owner of the same place, gave testimony which corroborated that of plaintiff as to the scene of the accident and as to the condition of the two cars and plaintiff and Franz after the accident.

James L. Kitchens testified for plaintiff that one of his companies paid the damage to plaintiff on his car, and that because of that interest in the case he called on Edward R. Franz to get the facts about the accident; that Mr. Franz and his wife were present at Mr. Franz' home when the witness talked to Mr. Franz about the accident; that the witness took Mr. Franz' statement; that Mr. Franz signed it and Mrs. Franz also signed it as a witness. The statement, dated April 14, 1939, was introduced in evidence by plaintiff.

Summarized, said statement of Franz related the following facts: That he was sixty-two years old and lived in St. Louis, Missouri; that he was employed as a salesman for the United Bakers Supply Company, and had been working for the company for eighteen years; that he received a salary of $160 per month; that he furnished a car and paid his own traveling expenses; that he did not receive any commission on sales from defendant company; that on Wednesday, March 29, 1939, he started his work for the day at Flora, Illinois, and had gone from there to Centralia and Vandalia, Illinois; that he called at the "Eddie" Bakery in Vandalia and was on his way to Greenville, Illinois, to make some calls when the accident happened; that he was going to call at the Bass Bakery and the Purity Sweet Shop in Greenville, Illinois, after which he intended to quit work for the day and drive to his home in St. Louis, Missouri; that while he was driving west on State Route No. 40 and was rounding a curve, his car got on the south side of the center black line, which was his left side of the pavement; that he did not see the eastbound car driven by Mr. Pfeifer (plaintiff herein) until it was in front of his car; that he did not apply his brakes; that he did not know if Mr. Pfeifer had his car at a standstill when he (Franz) collided with him or not, and did not know whether Mr. Pfeifer was on or had pulled off the highway; that he, Franz, was not injured in any way but his car was badly damaged; that he was taken to Vandalia, put in jail and charged with reckless driving, and that the United Bakers Supply Company paid his fine amounting to $51, which he later paid back to the company; that he was working and on duty when the accident happened; that he was at fault and was entirely to blame for the accident; that he could not understand why he drove his car in that manner because he was always careful and this was the first accident he ever had. In conclusion he stated that he made the statement of his own accord and free will, and that it was all true in fact and in substance and that his wife, Marie Franz, witnessed his signature thereto.

William Eadie testified for plaintiff that he lived in Vandalia, Illinois, and ran a bakery there, having been in business there for ten years; that a salesman named Franz, representing United Bakers Supply Company, called on him there and witness would give him orders for material or supplies; that he usually paid Franz by giving him a check when he returned the next trip; that the check was payable to United Bakers Supply Company but delivered to Franz; that on March 29, 1939, the day of the accident, Franz was at witness' place of business in the morning; that he had his grip and usual paraphernalia, meaning his order book and catalogue and things of that sort, which had the name United Bakers Supply Company on them; that Franz called there about once a month, stopping there on his regular trip which he made through that territory once a month or every five weeks. The witness was not certain whether or not he had given Franz an order that day. He believed that Franz never sold or offered to sell him anything except material and supplies from the United Bakers Supply Company.

The deposition of Albert E. Flebbe, president of United Bakers Supply Company, taken by plaintiff's counsel, was read in evidence on behalf of plaintiff. After stating his name, his residence, the place of business of the defendant company in St. Louis, and that he was president of said company, the deposition proceeded as follows:

"Q. On March 29, 1939, did you have a salesman by the name of Edward R. Franz? A. Yes.

"Q. How long had Mr. Franz been in your employ? A. About eighteen years.

"Q. I wish you would tell me, if you know, what his duties were. A. Well, selling merchandise to confectioners and bakeries, and acting as a salesman,...