Stipetich v. Security Stove & Mfg. Co.

• Decision Date: 16 February 1920
• Docket Number: No. 13488.,13488.
• Citation: 218 S.W. 964
• Court: Missouri Court of Appeals
• Parties: STIPETICH et ux. v. SECURITY STOVE & MFG. CO.

218 S.W. 964

STIPETICH et ux. v. SECURITY STOVE & MFG. CO.

No. 13488.

Kansas City Court of Appeals. Missouri.

February 16, 1920.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Nick Stipetich and wife against the Security Stove & Manufacturing Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sparrow & Patterson and Hal H. Thurston, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondents.

TRIMBLE, J.

This is an action by the parents of Peter Stipetich, a 10 year old boy, to recover damages on account of his death through the alleged negligence of one of defendant's servants in driving its delivery truck. Plaintiffs lived in Kansas, and the child's death occurred there. The suit is therefore under the statutes of Kansas as construed and enforced by the Supreme Court of that state. Sections 7323, 7324, General Statutes of Kansas 1915, give a cause of action to the next of kin of a person whose death has been caused by the wrongful act or omission of another if the deceased could have maintained an action had he lived, if there be no widow or children of the deceased and no personal representative has been appointed. The damages recoverable cannot exceed $10,000. Under these statutes the Supreme Court of Kansas has decided that the phrase "next of kin" means those persons who inherit personal property of the deceased under the statutes of descents and distributions. Atchison, etc., R. Co. v. Ryan, 62 Kan. 682, 64 Pac. 603. By section 3842, General Statutes of Kansas 1915, the estate of one who dies intestate leaving no wife nor issue goes to his parents. No personal representative had been appointed in this case, and, of course, deceased left no widow nor children. Hence, the cause of action, if one existed, was in the parents of the boy. It is, and was, also the law in the state of Kansas that in an action by the parents for the wrongful death of an unmarried minor child, they are entitled to recover not only what he would probably have earned during his minority, less the probable expense of his maintenance, but also in addition thereto such sum as he would have been likely to contribute to their support, or the support of either, after he became of age. Aaron v. Missouri & Kansas Telephone Co., 89 Kan. 186, 194, 131 Pac. 582, 45 L. R. A. (N. S.) 309; Atchison, etc., R. Co. v. Fajardo, 74 Kan. 314, 325, 86 Pac. 301, 6 L. R. A. (N. S.) 681; Fidelity, etc., Imp. Co. v. Buzzard, 69 Kan. 330, 333, 76 Pac. 832.

The theory upon which plaintiffs' case was pleaded in the petition was that the defendant's servant, the driver of said truck, knew the boy was in the act of boarding said truck while it was standing still, and knew the boy's position was such that the driver, in the exercise of ordinary care, could reasonably have anticipated that the boy would be hurt if the truck was suddenly started, and that while the boy was in this known position of danger the driver carelessly and negligently suddenly started said truck forward with a violent jerk whereby, as a result of such carelessness and negligence the boy was thrown to the ground and run over and killed. However, the trial court, before submitting the case, ruled that the instruction which plaintiffs offered embodying their case did not go far enough in submitting whether the driver, after knowledge of the boy's peril, used ordinary care to avoid injuring him, and so the court inserted a clause which, instead of basing plaintiffs' right to recover upon whether the driver "carelessly and negligently" started the truck, required the jury to find that he did so "in reckless disregard of the safety of deceased." Whereupon, to conform to such ruling, plaintiffs amended their petition by interlineation so as to add "recklessness" to the terms in which such act was characterized, and so as to charge that the truck was started by the driver, with knowledge of the boy's situation and danger, "in reckless disregard of the safety of deceased." And it was upon this theory that the case was submitted. There was a verdict and judgment in plaintiffs' favor for $4,000, from which the defendant has appealed. "

As the jury has found for plaintiffs we must accept that view of the evidence, which, in reason, is favorable to them. Acting upon this well-established principle, we find that the record discloses evidence amply tending to support the following state of facts:

In going home from school it was necessary for the little boy to go along a street and pass over the James street bridge across the Kaw river in Kansas City, Kan. On the afternoon of May 24, 1918, deceased, and four other boy companions, were on their way home from school, and as they approached the aforesaid bridge defendant's truck came along. It is conceded that the truck belonged to defendant, that the driver was defendant's servant, and that in driving the truck he was engaged in defendant's business.

There are some minor differences in the testimony of plaintiffs' witnesses as to what occurred at first. Some of them say the boys jumped on the truck, and the driver told them to get off, whereupon they did so, and that then the driver went on a few feet and stopped and waved his hand, inviting them to ride. Others say two of the boys asked for a ride, and the driver said no, and they did not get on, and that then the driver stopped and waved his hand and waited for them. There was also evidence to the effect that, in addition to the wave of the hand, the driver, as he stopped and waited, said to them to "come on and ride."

They all agree that the driver refused at first, and then, after going 20 or 30 feet, stopped and invited them to ride, some saying that they did not hear him say anything, but that he did wave his hand, while others say he did both. They all agree, too, that when the truck stopped, one boy climbed up into the seat beside the driver, and the others began climbing into the truck from the rear end while little Peter attempted to climb on the side just in front of the right hind wheels. The truck was an open one, with nothing to prevent the driver from seeing back over the body and bed thereof.

There is also clear and explicit evidence that the driver looked back and saw deceased in the position he was in, attempting to climb on, and that while Peter was in this position, the driver, knowing the boy's situation, started the truck with a "big jerk" throwing Peter to the ground just in front of the right hind wheel, which ran over him, causing his death in a few minutes. When the driver thus suddenly started, only two of the boys were completely on the truck, the one on the seat by the driver and one older boy in the bed of the truck; the others were yet in the act of getting on. After the boy was run over, the truck stopped, but the driver, realizing what had happened, threw on the power and attempted to drive away, when a workman on the street, who saw the boy had been run over, ran out in front of the truck with a long shovel in his hand, and compelled the driver to stop.

To sum it all up, there was ample evidence from which the jury could find that while Peter, in response to the driver's invitation to ride, was holding onto the side of the truck, attempting to climb on, the driver, knowing he was in that position of danger, suddenly and carelessly started the truck with a violent jerk, causing the boy to fall to his death. The driver of the truck died before the trial was had, and his deposition was not taken, so his version of the affair was not obtainable. Defendant introduced three colored men, who were working on the street at the time, who contradicted the evidence of the boys as to the driver giving them permission to ride, saying that he stopped several times and drove them off, and that when the boy was killed he was trying to get on after it had started up. It was for the jury to say which set of witnesses told the truth.

The act of negligence upon which liability is predicated is not the driver's invitation to the boys to get on and take a ride, but it was his act of suddenly and violently starting the truck when he knew the boy was in danger and would likely be hurt thereby. The evidence concerning the driver's invitation was merely to explain the boy's presence at the truck, attempting to get on. It showed how he happened to be there, but the sudden starting of the truck while the boy was attempting to climb on was the cause of his death, and if the driver knew of his situation when he started the truck it was an act of culpable negligence. He was clearly acting within the scope of his employment in starting and driving the truck. His invitation to was an act beyond the scope of his authority and hence, as to the driver's employer, the boy was in law a trespasser, or occupied that status. But, even so, the driver in the subsequent prosecution of his master's business owed the boy the duty of using reasonable care not to injure him after he was discovered and known to be in a place of imminent danger or peril. Hall v. Missouri Pacific R. Co., 219 Mo. 553, 586, 118 S. W. 56. also, Ziehm v. Vale, 98 Ohio St. 306, 120 N. E. 702, 1 A. L. R. 1381. The cases cited by appellant in support of its theory of nonliability because the act was not within the of the servant's employment, are not in point, since in none of them was the injury proximately caused by the servant doing a negligent act in the prosecution of his master's business when he knew the plaintiff was in a position of danger and would very likely be affected disastrously thereby.

We note defendant's very earnest contention that there is no evidence the driver knew the boy was in danger. But manifestly there is. When the truck started, only two boys had succeeded in boarding it, the others were still in the process of doing so. All of the boys, except one, say the driver looked around just before he started the truck, and so does...