Shade v. Brinkopf

• Decision Date: 09 September 1938
• Docket Number: No. 24672.,24672.
• Parties: SHADE v. BRINKOPF.
• Court: Missouri Court of Appeals

119 S.W.2d 444

SHADE v. BRINKOPF.

No. 24672.

St. Louis Court of Appeals. Missouri.

September 9, 1938.

Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.

"Not to be published in State Reports."

Action by Ross Shade against Leon Brinkopf for damages to plaintiff's automobile caused when it was driven into an automobile allegedly owned by the defendant, wherein the defendant filed a general denial and a counterclaim for damage to his automobile. From a judgment in favor of the defendant after court had given an instruction in the nature of a demurrer to the evidence and had directed a verdict against plaintiff, the plaintiff appeals.

Affirmed.

J. Grant Frye and H. Howard Frye, both of Cape Girardeau, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

BECKER, Judge.

Plaintiff began his action by filing a petition before a justice of the peace alleging that the defendant negligently parked his automobile in the traveled portion of a street in the city of Cape Girardeau in the nighttime and during a heavy rain storm without a taillight burning, and that plaintiff's daughter-in-law, operating an automobile owned by plaintiff, ran into the rear end of defendant's car, thereby damaging plaintiff's automobile in the sum of $50.

Defendant filed a general denial and a counterclaim in which defendant charged that the plaintiff, through his agent and servant, drove a Model A Ford truck belonging to plaintiff in a negligent manner into defendant's automobile, thereby damaging defendant's automobile in the sum of $50.

Upon a hearing before the justice, judgment was entered for defendant, and plaintiff thereupon look an appeal to the Cape Girardeau Court of Common Pleas, where the case was tried de novo. At the close of plaintiff's case defendant tendered an instruction in the nature of a demurrer to the evidence, which was overruled. Thereupon defendant stood upon his demurrer and did not introduce any testimony in support of his counterclaim. In this situation defendant renewed his request for an instruction in the nature of a demurrer, which the court gave, instructing the jury to render verdict for the defendant, which was accordingly done, and from the resulting judgment plaintiff in due course brings this appeal.

It is urged here that the trial court erred in giving the instruction in the nature of a demurrer to the evidence, and in directing a verdict against plaintiff.

Plaintiff himself testified that in March, 1935, he owned an automobile; that the automobile was damaged in a collision at a time when his daughter-in-law Evelyn Shade was driving it; that she was not on any mission or errand of his; that as a result of the collision he was required to have the automobile repaired at an expense of $28.29.

Plaintiff's daughter-in-law Evelyn Shade testified that "in March, 1935, I was driving an automobile on Pacific street. I got the car from Ross Shade, plaintiff. It was about eight o'clock at night. * * * I had a collision with Leon Brinkopf. * * * It was just pouring down rain. I was going along and was just about in front of where the Lutheran School is. I was right there and Mr. Brinkopf's car was setting right out there." Objection was made by counsel for defendant: "She didn't know who owned that car," to which witness answered: "Some car was setting right out in the street, parked. * * *" She was asked: "Did he have any taillight?" and she answered: "I didn't see any."

On cross-examination witness was asked: "Where was Mr. Brinkopf?" and answered: "I don't know. He came from the yard." "Q. He didn't get out of the car? A. No, sir, he wasn't in the car." "Q. Who was driving the car? A. I don't know who was driving. It was just sitting out there. I didn't see Mrs. Brinkopf in the car. I know afterwards there was children in the car, but I didn't see them at the time. * * *" Witness was asked where Mr. Brinkopf's car was with reference to "that intersection," and answered: "Well, Themis comes in there—it wasn't exactly right in the middle. It was where the sidewalk comes down from Trinity Hall. There were cars coming north on Pacific at the time. I don't know if those car lights blinded me or not. The lights and the rain all had something to do with it. His car was setting right out as I came along. As I came along I didn't expect to meet a car. I was watching too, and it was raining. I don't know if there was anybody at the wheel of Mr. Brinkopf's car. Anyway Mr. Brinkopf came from Trinity Hall after the wreck was over. I was driving 15 or 20 miles an hour. There was a street light burning at the intersection. Mr. Brinkopf's car was back from that across the street. I think my brakes and headlights were all right. I don't know how long that car had been there. I believe it rolled after I hit it."

In support of plaintiff's contention that the trial court erred in ruling on the demurrer offered at the close of the case, plaintiff, in his written argument, says: "We contended then, as we do now, that where the pleadings of a defendant are such as to confess or admit a part of plaintiff's pleadings, it is unnecessary for plaintiff to prove such matters in order to make a prima facie case. Hence, although appellant may not have introduced enough positive testimony to show respondent was the owner of or responsible for the driving of the car in question, still the answer admits such issue, at least enough to make a prima facie case."

We call attention to the fact that defendant filed a general denial to plaintiff's petition. The allegations of plaintiff's petition being thus denied by defendant's answer, plaintiff had the burden of proving the facts necessary to a verdict in his favor. Connole v. East St. L. & S. R. Co., 340 Mo. 690, 102 S.W.2d 581; Cluck v. Abe, 328 Mo. 81, 40 S.W. 2d 558; Quinn v. McCallum, 178 Mo.App. 241, 165 S.W. 1115; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043.

Under the pleadings and upon the record in this case plaintiff cannot avail himself of the benefit of any admission that might appear in defendant's counterclaim. The cases which plaintiff has cited lay down the rule that admissions appearing in an answer are taken as...