Stafford v. Ryan

• Citation: 276 S.W. 636
• Decision Date: 06 October 1925
• Docket Number: 24971
• Parties: STAFFORD v. RYAN
• Court: United States State Supreme Court of Missouri

276 S.W. 636

STAFFORD v. RYAN

No. 24971

Supreme Court of Missouri, Second Division

October 6, 1925

Randolph & Randolph and Shultz & Owen, all of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

OPINION

WALKER, P. J.

This is a suit for damages for the death of plaintiff's husband alleged to have been caused by the carelessness of an agent of the defendant. Upon a trial the jury returned a verdict for the defendant. A motion for a new trial was filed and sustained on the ground that instruction No. 2, given for the defendant, was erroneous. From the order granting a new trial, the defendant has appealed to this court.

Defendant's son was driving the car which it is alleged caused the death of plaintiff's husband. Defendant admitted that the son at the time of the accident was driving the car as defendant's agent and in the transaction of the latter's business. Defendant was not present at the time.

At the time of his death plaintiff's husband was in his seventy-ninth year. He was being driven by his son to the home of another son in the city of St. Joseph. The Stafford car, in which the deceased was riding, was proceeding westward on Mitchell avenue. The Ryan car was a Dodge truck used by the Ryans in their business of delivering milk. It was being driven eastward by Frank Ryan, with the intention as indicated by the driver holding out his hand, as is contended by the defendant, of turning north at the intersection of Mitchell and Twentieth street. The collision occurred at the intersection of these streets. At the time the deceased was riding on the front seat and at the right side of his son, and after the cars struck each other he was found lying on the floor of the front part of the car, one of his feet being fastened between the brake and the clutch, the front door on the right side of the car was open, and the head of the deceased was handing over the running board near the ground.

The petition charged negligence on the part of the defendant in causing the death of the deceased in this language:

'The defendant, through his agents and servants, carelessly and negligently drove an automobile going in an easterly direction on Mitchell avenue, and approaching and crossing Twentieth street from the west, upon the left or the north side of the street, at a high, dangerous, and excessive rate of speed.'

The motion for a new trial was stated by the trial court to have been sustained because of error in giving instruction No. 2, requested by the defendant. This instruction is as follows:

'The court instructs the jury that the mere fact that there was an injury to the deceased, Cornelius Stafford, which resulted in his death, does not entitle the plaintiff to recover. Before the plaintiff can recover, it must be proven to your reasonable satisfaction by a preponderance of the evidence that said Stafford came to his death on account of some act of negligence on the part of defendant.'

It will been from the above instruction that the plaintiff's right of recovery was dependent upon proof that the deceased came to his death on account of some act of negligence of the defendant. The cases cited by appellant to sustain the position that the motion for a new trial should not have been sustained will be found, upon a review, to disclose no error which, from its character, would be so likely to mislead the jury as that in the instant case. It was the son of the defendant who was steering the car at the time of the collision which caused the death of plaintiff's husband. The instruction is therefore misleading in that it ignores that fact and is contradictory to other instructions which correctly declared the agency of the son and the consequent liability of the defendant as his principal, provided the...