Stevenson v. A. B. C. Fireproof Warehouse Co.

• Decision Date: 21 May 1928
• Docket Number: No. 16005.,16005.
• Citation: 6 S.W.2d 676
• Parties: STEVENSON v. A. B. C. FIREPROOF WAREHOUSE CO.
• Court: Missouri Court of Appeals

6 S.W.2d 676

STEVENSON v. A. B. C. FIREPROOF WAREHOUSE CO.

No. 16005.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by M. M. Stevenson against the A. B. C. Fireproof Warehouse Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. G. Holt, of Kansas City, for appellant.

Dickinson & Hillman, of Kansas City, for respondent.

WILLIAMS, C.

This is an action to recover damages for the loss of an automobile and its accessories which were destroyed by fire. There was a verdict and judgment in favor of plaintiff in the sum of $1,700, and defendant has appealed.

The facts surrounding the destruction of the automobile in question are fully set forth in the case of Ormsby v. A. B. C. Fireproof Warehouse Co., 214 Mo. App. 336, 253 S. W. 491, and Train v. A., T. & S. F. Ry. Co., 214 Mo. App. 354, 253 S. W. 497, and it is not necessary for us to restate them. It is sufficient for us to say that plaintiff was the owner of the Haynes automobile mentioned in the opinion in those cases.

Defendant's first point is that the petition fails to state any cause of action. The petition is similar to the petitions in the other cases except here the facts as to negligence of the defendant are stated a little more broadly if anything. Under the ruling of this court in the other cases this point will be ruled against the defendant. Ormsby v. Fireproof Warehouse Co., supra, 214 Mo. App. 336, 253 S. W. loc. cit. 497; Train v. A., T. & S. F. Ry. Co., supra, 214 Mo. App. 354, 253 S. W. loc. cit. 505.

During the trial plaintiff amended his petition so as to change its allegations in substantially the same way that the petition was amended in the Ormsby Case. It is insisted that defendant's demurrer to the evidence should have been sustained because the abandoned petition was introduced in evidence and defendant claims that the allegations therein were conclusive upon the plaintiff in the absence of any explanation, which the record discloses was not given. There is no merit in this contention. See 214 Mo. App. 336, 253 S. W. pages 495, 497, of the Ormsby Case and 214 Mo. App. 354, 253 S. W. page 502 of the Train Case. In this connection it is claimed that the evidence conclusively shows that the men causing the fire in question were taking gasoline from plaintiff's automobile on their own time, for their own purpose, in violation of the instruction of their foreman, and that the work they were doing at the time was of no benefit to defendant, nor was it necessary in the preparation of plaintiff's automobile for shipment nor required by the railway company. For these reasons it is insisted that plaintiff was not entitled to recover. This point was ruled against defendant in the Ormsby Case, 214 Mo. App. 336, 253 S. W. loc. cit. 495, 497.

It is insisted that the court erred in admitting evidence tending to prove that employees of the defendant, at other times than the time in question, had taken gasoline from automobiles prior to their shipment. A similar point was ruled against the defendant in the Ormsby Case, 214 Mo. App. 336, 253 S. W. page 496, and in the Train Case, 214 Mo. App. 354, 253 S. W. page 505.

It is claimed that the court erred in refusing to permit plaintiff to state, on cross-examination, how much he paid for his automobile. The facts in reference to this matter show that plaintiff was called to the witness stand by the defendant for recross-examination and was asked what he paid for the automobile. Plaintiff's objection to this evidence was sustained by the court. Prior to this time it was brought out that plaintiff purchased the car, a 1917 model, in that year, new, at Sedalia, paying cash for the same, and a full description of the condition of the automobile immediately prior to the fire was given in evidence, including the number of miles that it had been driven.

The market value of the car at the place it was destroyed is the proper measure of damages. Shahan v. Lusk (Mo. App.) 190 S. W. 43, and Niemetz v. St. Louis Ag. & Mech. Ass'n, 5 Mo. App. 59.

We do not think that what was paid for the car in Sedalia in 1917 was any criterion as to the market value in Kansas City on October 6, 1920. The measure of damages was the difference between the reasonable market value of the car immediately prior to and immediately after the fire at the place or immediate vicinity where it was destroyed. Hoff v. Wabash Ry. Co. (Mo. Sup.) 254 S. W. 874; Gilwee v. Pabst Brewing Co., 195 Mo. App. 487, 193 S. W. 886.

Defendant complains of plaintiff's instruction No. 5 because it is claimed that it did not submit facts from which the jury could find that Hulse and Richardson, the employees of defendant, were acting within the scope of their employment, but merely had the jury find that they "were acting within the scope of their respective authority." In reference to this matter, the instruction reads:

"* * * And if you further find that the draining of gasoline from said automobile was a part of the work of caring for and preparing said automobiles for shipment, and that the act of said employees in draining and removing said gasoline (if you find they did so) were within the scope of their respective employments as the agents and employees of the respective defendants (if you so find)."

A like contention was ruled against the defendant in the Train Case, 214 Mo. App. 354, 253 S. W. loc. cit. 505. We might add that in no event was it error for the court to fail to define "scope of employment" as used in the instruction. These words have no legal or technical meaning distinct from their ordinary meaning and the jury from all the evidence could have understood them as well as the court. Maysville v. Willis (Ky.) 104 S. W. 1016; Holland v. McCarty, 24 Mo. App. 112; Carthage Marble and White Pine Co. v. Bauman, 55 Mo. App. 204. And, further, if it were a technical term and defendant desired it defined, it was at liberty to ask an instruction on the subject. Producers' Packing Co. v. Fischer and Sims, 219 Mo. App. 429, 435, 275 S. W. 979; Seward v. A., T. & S. F. Ry. Co. (Mo. App.) 262 S. W. 691.

It is claimed that the...