Pfeiffer v. Schee

• Decision Date: 29 June 1937
• Docket Number: No. 24116.,24116.
• Parties: PFEIFFER v. SCHEE.
• Court: Missouri Court of Appeals

107 S.W.2d 170

PFEIFFER v. SCHEE.

No. 24116.

St. Louis Court of Appeals. Missouri.

June 29, 1937.

Rehearing Denied July 6, 1937.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by Milton Pfeiffer against Chas. E. Schee. Judgment for plaintiff, and defendant appeals.

Affirmed.

R. E. Kleinschmidt, of Hillsboro, for appellant.

Terry, Terry & Terry, of Festus, for respondent.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, is an action in which the plaintiff seeks to recover for personal injuries and property damage sustained by him on October 21, 1933, as the result of a collision between his own automobile and that of defendant. Tried to a jury in the circuit court of Jefferson county, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $500; and from the judgment rendered in conformity therewith, defendant's appeal to this court has been perfected in the usual course.

The accident happened at a point on highway No. 61, about one and one-half miles north of Imperial, Mo.

Plaintiff was driving northwardly en route to his home, which was located some little distance north of the point of the accident. The exact time of the accident was not definitely fixed in the evidence. Plaintiff himself testified that it occurred between 6:30 and 7 o'clock, while an eyewitness put the time as late as 7:15 or 7:30 o'clock. However, the important thing is that it was "fairly dark" at the time, with the atmosphere murky on account of an impending shower.

Plaintiff testified that he had his headlights burning, and that they threw a light ahead "at that point," that is, at the point of the accident, for "fifty feet easily." He had passed over the crest of a hill, and was driving down the grade or incline at a speed of thirty or thirty-five miles an hour when "he noticed two cars coming from the other way, on the other side." He reduced his speed a little on account of the approach of the other automobiles, and at that moment first discovered defendant's automobile standing on the pavement, without lights, about thirty feet in front of him, and immediately at the foot of the hill. He applied his brakes and attempted to stop as soon as he could, but finding that he was unable to stop short of a collision, he swerved over to the left in an endeavor to pass on the left side of the highway. However in the "flash" of time in which he had to act he did not succeed in entirely avoiding contact with defendant's automobile, the right front corner of his car striking against the left rear wheel of defendant's car, as a result of which his own car was caused to leave the pavement and run into the ditch on the opposite side of the highway.

Defendant's explanation of how his car happened to be stopped on the highway was that he had run out of fuel, and had left it standing on the pavement while he walked back to a nearby filling station to get gasoline. It appears, however, that he might very readily have left his car standing off of or alongside the pavement, the evidence showing that the concrete slab took up only a portion of the total space appropriated for the highway, and that there was a dirt shoulder six feet wide on either side.

Other evidence disclosed that the state highway department had theretofore placed signs at frequent intervals along the highway warning motorists against stopping or parking on the pavement. Indeed the testimony was that signs of this character had been maintained along the highway for as much as six years prior to the accident.

The negligence pleaded and relied upon by plaintiff was defendant's act in stopping or parking his automobile on the concrete slab, contrary to a custom which prohibited the stopping of automobiles on the pavement, and at a time when it was dark, and when the atmospheric conditions were such as to render the operation of motor vehicles dangerous.

The answer consisted of a plea to the court's jurisdiction over defendant's person, coupled with an answer to the merits, which, in addition to a general denial, included a specific charge that the injuries and damage sustained by plaintiff had been the direct and proximate result of his own carelessness and negligence in driving his automobile at a high, excessive, dangerous, and unlawful rate of speed; in failing to keep a lookout ahead for other motor vehicles on the highway; in failing to keep his automobile under proper control so as to avoid injury to persons and other vehicles on the highway; and in driving against defendant's automobile.

For his first point defendant challenges the correctness of the court's action in having overruled his plea to the jurisdiction after a hearing had upon the question of jurisdiction preliminary to any consideration of the case on its merits.

The basis of defendant's plea was that the service of process upon him in this action was void, he being a resident of St. Louis county, and service having been had upon him while he was present in Jefferson county for the sole purpose of appearing in a justice's court to answer to a criminal charge brought against him for an alleged violation of "the automobile laws" in connection with the accident involved in this proceeding.

So far as our own state is concerned, the question of the validity of service obtained under such circumstances as those set up in defendant's plea to the jurisdiction is held to be dependent upon whether the defendant's presence in the county where he was served was procured by fraud or misrepresentation. Mertens v. McMahon, 334 Mo. 175, 66 S.W.(2d) 127, 93 A.L.R. 1285.

It is invariably held to be an abuse of the criminal process of the state to employ it for the purpose of bringing the defendant into a county other than that of his residence with the design of obtaining service of summons upon him in a civil action instituted against him in that county, so that, where such a course is followed, it constitutes a legal fraud upon the defendant, with the result that the court acquires no rightful jurisdiction over his person by means of such a contrivance and wrong. Byler v. Jones, 79 Mo. 261; Bowman v. Neblett (Mo.App.) 24 S.W.(2d) 697.

But though the above is true, we nevertheless do not understand that there has been any departure from the rule heretofore obtaining in this state that if no fraud or deceit is practiced with respect to the matter of procuring the presence of the defendant in a county other than that of his residence, then he is not exempt from the service of civil process while in such county, even though his purpose in coming into the county is to answer to a criminal charge lodged against him therein. Ex parte Noell, 220 Mo. App. 702, 293 S.W. 488; Morris v. Dowell (Mo.App.) 205 S.W. 229.

In this instance, while the evidence disclosed that defendant resided in St. Louis county, it nevertheless appears that he had been engaged for some time in carrying on certain business operations in Jefferson county. It was on the very evening of the accident, and while he was still in Jefferson county in connection with his private business activities, that he was arrested on the charge of violating "the automobile laws," though there was no showing as to what part, if any, plaintiff played in instigating his arrest, nor that this action was even contemplated by plaintiff at the time the arrest was made. Following his arrest, defendant was put under bond to appear in the justice's court to answer to the charge brought against him, and his presence in the county at the time service was had upon him was merely to answer to that charge in compliance with the condition of the bond he had theretofore given. Under such circumstances, and with nothing more appearing, we do not think that there is any room in the case for the conclusion that defendant was induced by plaintiff's fraud to enter within the boundaries of Jefferson county, and so, as our decisions run, the consequence of the service had upon him was to subject his person to the jurisdiction of the court.

Passing to the question of the admission of evidence, defendant assails the action of the court in having permitted plaintiff to testify to the presence of the signs along the highway warning against the stopping or parking of automobiles on the pavement. He argues that plaintiff had not qualified as having any actual knowledge of what the state highway department had done; that there was no allegation in the petition in regard to such signs; and that in any event the matter was entirely immaterial and irrelevant to the subject of inquiry.

No error was committed in the admission of the evidence in question. Plaintiff testified positively that the signs were erected by the highway department, in accord, of course, with the authority which the statute gives that...