Rath v. Knight

• Decision Date: 20 December 1932
• Docket Number: 30779
• Citation: 55 S.W.2d 682
• Parties: RATH v. KNIGHT
• Court: Missouri Supreme Court

55 S.W.2d 682

RATH v. KNIGHT

No. 30779

Supreme Court of Missouri, First Division

December 20, 1932

Douglas H. Jones and N. Murry Edwards, both of St. Louis, for appellant.

Allen Moser & Marsalek, of St. Louis, for respondent.

OPINION

HYDE C.

This is an action for personal injuries. Plaintiff, a child six years old, brings this action by her father, as next friend. An automobile owned by defendant, traveling sixty miles per hour on the wrong side of the road, ran into plaintiff's father's automobile in which plaintiff was riding. Whether defendant was driving his car or whether it was being driven by some one who had stolen it (which is defendant's theory) is the question upon which defendant's liability depends. Plaintiff's right eye was injured and her face cut by glass, broken out of the door of her father's automobile in the collision. After the collision defendant's automobile ran into a telephone post, 100 to 150 feet beyond the automobile in which plaintiff was riding, and was wrecked. Plaintiff's father said that he saw a heavy set man coming out of the machine who was the same build as defendant. The man started toward him but went back when plaintiff screamed. He said: 'I only saw him a few feet. He started to run then I went back around the rear end of my car and took care of my child. I did not pursue the man running; I did not see his face. All I saw was his back, his build. He was in the road in the light of his headlights near the south side of his machine.'

Plaintiff's father and mother, finding that defendant was the owner of the automobile which ran into them, went the next evening to see defendant at his apartment. Plaintiff's father said: 'We went to his home and I asked him what he intended to do about the accident. He said he did not have any accident; that it was his machine, but that he was not the driver. I told him he looked like the man -- that his build was the same, but he said that he was not the man that drove the machine, stating that he did not know who drove it; that he brought his machine home about 10 o'clock and left it in front of his apartment and that he knew nothing more about it until he read about the accident in the newspaper.'

Defendant's evidence was that he left the car in front of his apartment about 9:30 p. m. on the evening plaintiff was injured, and did not leave his apartment again that night; that he was not driving the automobile at the time of the collision, and had no idea who was; and that no one had his permission to drive it. He said that usually an employee of a nearby garage where he kept his car came and picked it up about midnight. The employee, whose duty it was to get customer's cars, said that he came by the apartment building twice that night for defendant's car, and it was not there either time. When defendant did not find his car at the garage next morning, he said that he thought it had been stolen and decided to go down town and telephone the insurance office; that shortly after he arrived at his office, his wife phoned him a reporter was inquiring about an accident; and that this was the first he knew of it. On cross-examination of defendant it was shown that the Natural Bridge road, where the collision occurred, was defendant's usual route to the flying field where he often went to engage in flying, but he said that he did not fly at night. The jury found for defendant, and, from the judgment entered for defendant on this verdict, plaintiff has appealed.

Plaintiff's first assignment of error is that there was no credible evidence to support the verdict. This contention is obviously without merit. Defendant testified that he was not driving his automobile when the collision occurred; that no one had his permission to do so; and that he had no idea who was driving it. This was sufficient evidence to support a verdict in his favor. Whether or not his testimony was credible was for the jury, and not for this court.

Defendant's next assignment is that the court erred in giving defendant's instructions II, III, and IV, which were as follows:

'II. The court instructs the jury that the burden of proof is on the plaintiff to prove to your reasonable satisfaction by the preponderance or greater weight of the credible testimony that defendant, Harry Hall Knight, was operating the automobile which collided with the one in which plaintiff was riding and this burden of proof continues and abides with plaintiff throughout the entire trial; and unless you find and believe from the evidence in the case that plaintiff has proven to your reasonable satisfaction by the preponderance of the credible testimony that defendant, Harry Hall Knight, was operating said automobile on the occasion mentioned in evidence, then your verdict must be in favor of defendant Harry Hall Knight.

'III. The court instructs the jury that by a preponderance of the evidence as used in these instructions, is meant the greater weight of all the credible evidence in the case. If the plaintiff has not the greater weight of the credible evidence with her, or if such evidence is evenly balanced as to weight, then in neither of such events can the plaintiff recover, and your verdict must be for the defendant.

'IV. The court instructs the jury that before you can find a verdict in favor of the plaintiff in this case, you must find and believe from the evidence that the defendant, Harry Hall Knight, operated the LaSalle automobile mentioned in evidence at the time it was involved in a collision with the automobile in which plaintiff was riding and if you find and believe from the evidence that on said occasion said Harry Hall Knight was not operating said automobile, then your verdict must be in favor of defendant.'

These were the only instructions given on behalf of defendant except a cautionary instruction, of which plaintiff does not complain, to the effect that the jury should not be governed by sympathy or prejudice. Plaintiff's criticism of instructions II, III, and IV is that they unduly repeated that the burden of proof rested upon plaintiff; that they were wrong in instructing the jury that the burden of proof was on plaintiff throughout the entire trial; that they required plaintiff to prove her own case by her own testimony alone without the aid of defendant's testimony; that they required plaintiff to prove her case beyond a reasonable doubt; that they unfairly singled out a particular issue, to wit, whether or not defendant was operating the car; and that they were erroneous in requiring plaintiff to prove that defendant himself operated the car at the time of the collision. We find no prejudicial error in these instructions. Plaintiff offered no instructions whatever, except an instruction on the measure of damages. The jury were therefore not informed upon what theory they could find for plaintiff and without definite instructions might have given too much importance to the mere ownership of the automobile in determining liability. Under these circumstances, defendant was entitled to have the jury given more detailed instructions as to what the issues were and as to what constituted a defense than would have been necessary if the jury had been clearly told what facts they must believe in order to find a verdict for plaintiff.

Instructions II and III, in almost identical language, were approved by this court in Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832. This court there held that there was no merit in the contention that requiring plaintiff 'to prove to your reasonable satisfaction' requires proof 'beyond a reasonable doubt.' This court has so held in several other cases. Hicks v. Vieths (Mo. Sup.) 46 S.W.2d 604; Denkman v. Prudential...