Shannon v. Del-Home Light Co.

• Decision Date: 08 December 1931
• Docket Number: No. 21642.,21642.
• Parties: SHANNON v. DEL-HOME LIGHT CO. et al.
• Court: Missouri Court of Appeals

43 S.W.2d 872

SHANNON v. DEL-HOME LIGHT CO. et al.

No. 21642.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Rehearing Denied December 22, 1931.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Suit by Harold Shannon, by his next friend, M. O. Shannon, against the Del-Home Light Company and another. The action was dismissed as to the defendant William Dudley, and, from a judgment for the plaintiff, the defendant the Del-Home Light Company appeals.

Judgment reversed, and cause remanded.

Henry J. Deibel, of St. Louis, and Derwood E. Williams and Walter R. Brown, both of Troy, for appellant.

Creech & Creech, of Troy, for respondent.

HAID, P. J.

This is a suit brought against Del-Home Light Company, a corporation, and William Dudley, for personal injuries received by Harold Shannon in an automobile collision between one driven by William Dudley and the one in which Shannon was riding.

The accident occurred on December 20, 1929, upon state highway No. 61, while the car in which the plaintiff was riding was proceeding north on the highway and the one driven by Dudley was proceeding southwardly. The record does not contain the return of service of summons upon William Dudley, but presumably from remarks in the record the return showed service of summons upon said defendant, although there is evidence to the effect that he had left the state some months prior to the bringing of the suit. However this may be, the return of the sheriff of service upon that defendant is conclusive. State ex rel. Beckwith v. Finn, 100 Mo. loc. cit. 433, 13 S. W. 712; State ex rel. Brown v. Stewart, 313 Mo. loc. cit. 19, 281 S. W. 768.

William Dudley did not file an answer, and was in default at the time of the trial of the case.

Plaintiff sought to introduce certain statements of William Dudley to prove the fact that he was the agent of the Del-Home Light Company, and that in the operation of the automobile on the date in question he was acting within the scope of his employment for such defendant. This upon the theory of the rule of evidence to the effect that evidence which is admissible for any purpose cannot be excluded because it is inadmissible for other purposes, and accordingly it is held that, where two persons are joined in an action such as this, any evidence of admissions of the one are admissible against him where he denies the allegations of the petition.

In an endeavor to meet the rule just stated, the plaintiff introduced the testimony of the driver of the car in which plaintiff was riding, and, over the objection and exception of the defendant Del-Home Light Company, she testified that William Dudley stated that he was connected with the Del-Home Light Company — represented the Del-Home Light Company, and said he was responsible for the accident and would settle the damages. The defendant then sought to have this testimony stricken out on the ground that Dudley had filed no answer and no connection had been shown between Dudley and the Del-Home Light Company and no agency shown in any manner. The court, however, held such evidence admissible as being part of the res gestæ. Again later on in the examination of George Meriwether, who, after he testified that he was a distance of two hundred and fifty feet from the place of the accident at the time it occurred, and that he went to the place of the accident, was then asked what was said by the two drivers. Again the defendant Del-Home Light Company objected upon the ground that no connection between the two defendants had been shown, and upon the further ground that Dudley had not filed an answer in the case, and therefore it was not competent for any purpose. After exception taken to the overruling of this question, the witness answered that Dudley stated that he was a representative of the Del-Home Light Company, and this matter would be taken care of by them, and that he also said: "I am on the way to the office of the company now, we are having a meeting down there," and defendant's motion to strike this was likewise overruled, exception to which was saved. Again, in the testimony of M. O. Shannon, the father of plaintiff testified in answer to the question, "Did he (Dudley) indicate who owned the car?" to which he answered, "In a general way he informed me that the car belonged to the people he was working for, Del-Home Light Company." The defendant asked that this answer be stricken out, and on its motion its objection to this answer was sustained.

If William Dudley had been the only defendant in the case, the plaintiff would have had a perfect right to prove the allegations of its petition, although it was unnecessary to do so. Dudley having made default in his failure to answer, no proof of the allegations of the petition were required, except proof of the damages suffered. Robinson v. Missouri Ry. C. Co., 53 Mo. 435; W. W. Brown C. Co. v. MacArthur Bros. Co., 236 Mo. 41, 139 S. W. 104; Laclede Land & Imp. Co. v. Creason, 264 Mo. loc. cit. 457, 175 S. W. 55; Dierks & Sons L. Co. v. Taylor (Mo. App.) 296 S. W. loc. cit. 180; Stein v. Rainey, 315 Mo. loc. cit. 546, 286 S. W. 53; section 800, Revised Statutes of Missouri 1929.

The fact, however, that William Dudley was joined with another defendant, and the...