Spellmeyer v. Theo. Hiertz Metal Co.
| Decision Date | 02 June 1925 |
| Docket Number | No. 18547.,18547. |
| Citation | 272 S.W. 1068 |
| Parties | SPELLMEYER v. THEO. HIERTZ METAL CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Action by Charles Spellmeyer against the Theo. Hiertz Metal Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Fordyce, Holliday & White, of St. Louis, for appellant.
Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff on July 28, 1921, when two automobiles collided at the intersection of Ninth street and. St. Louis avenue in the city of St. Louis. Plaintiff was a member of the St. Louis fire department and a chauffeur for the district chief. The machine he was driving was eastbound on St. Louis avenue, and the machine with which he collided was southbound on Ninth street. There was a verdict and judgment for plaintiff for $5,000, and defendant appeals.
There is no point made involving the pleadings. The petition charges the defendant with the negligent operation of its truck in failing to draw same up as nearly as possible to the right-hand curb; in failing to bring the truck to a standstill immediately upon the approach of the automobile of the fire department, in violation of an ordinance of the city of St. Louis; a failure to yield the right of way to the fire department automobile and interfering with same; and in failing to give heed to the signal bell of the fire department machine; also, that defendant's machine was being operated at an excessive rate of speed, all in violation of certain ordinances of said city.
The answer makes a general denial, followed by the affirmative defense of contributory negligence. The assignments of error are based upon the court's failure to sustain defendant's demurrer to the evidence at the close of the whole case; complain of defendant's instruction No, 2; assign error in allowing Dr. Titterington to testify concerning certain X-ray plates which were not offered in evidence; and, finally, that the judgment should he reversed because of remarks made to the jury by defendant's counsel. We will consider these assignments in their order.
It is said that the demurrer to the evidence should have been sustained, because the record is barren of testimony showing that the driver of the truck in question was a servant or agent of the defendant acting within the scope of his employment. There was no evidence offered by defendant, except an ordinance of the city of St. Louis, Briefly, the proof shows that plaintiff, in responding to a fire alarm, reached the west building line of Ninth street on St. Louis avenue, his machine then traveling east about 12 miles an hour. He then, for the first time, saw a truck coming south from the north on Ninth street, but this was not the truck in question. However, about the same time plaintiff observed another truck, with which he collided, coming south on Ninth street from the north and on the east side of said street. This truck did not stop, but continued to travel south and attempted to cross the intersection of Ninth street and St. Louis avenue. When plaintiff reached the center of Ninth street he attempted to swerve his truck to the south in an effort to avoid the south-bound truck, but the truck struck the center of the left-hand side of the machine in which plaintiff and the chief were riding, and plaintiff's machine was pushed to the south and turned around and upset, and plaintiff was severely injured.
Addressing ourselves now to the very question in issue, that is as to whether the evidence failed to make a case for the jury on the allegations of the petition that the person in charge of and operating the truck, which negligently injured plaintiff, was at the time a servant of the defendant and engaged in defendant's business, we refer to the following testimony in the record: Frank Winscott testified on behalf of plaintiff that he was at the scene of the accident; that he heard the fire department bell ringing, and that he stopped the truck which he was driving on the southeast corner of.Ninth, street at this intersection. The following questions and answers then appear:
This witness was asked as to the speed of the truck, which collided with plaintiff's machine, and testified that it was traveling about 20 miles an hour. Then the record contains the following as to the identity of the truck:
The witness stated over and again, in describing what machine struck plaintiff's car, that it was the metal works company's truck, and throughout his testimony he designated this machine which struck plaintiff's car as the truck "of the metal works company."
On cross-examination, the following reference is made to the identity of the truck:
At the trial, defendant's counsel produced a statement signed by this witness a few days after the accident, had same identified, but did not introduce it in evidence, whereupon plaintiff's counsel offered the statement in evidence, and asked the witness whether that was that statement he had given to a representative of the Hiertz Metal Company a few days after the accident, and witness said that it was.
Witness Dr. C. L. Sellars testified for plaintiff that he had made a physical examination of plaintiff at the request of the defendant, Hiertz Metal Company, and that he had made a report to the company of what he had found. " Dr. Sellars further testified that he had caused Dr. Titterington to make X-ray pictures of plaintiff and that the defendant paid the bill. At the close of plaintiff's case, defendant offered its demurrer to the evidence, and upon argument on the demurrer plaintiff's counsel concluded to add the additional proof that the defendant's name was on the truck which had injured plaintiff. The colloquy of counsel, we think, becomes pertinent and is set out in full, as follows:
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