Straughan v. Asher
| Decision Date | 19 November 1963 |
| Docket Number | Nos. 31471,31472,s. 31471 |
| Citation | 372 S.W.2d 489 |
| Parties | Thomas STRAUGHAN, a minor, by his next friend, Lester Straughan, Plaintiff-Respondent, v. Samuel T. ASHER, Defendant, Farmers Insurance Exchange of Farmers Insurance Group, Garnishee-Appellant. Sandra STRAUGHAN, a minor, by her next friend, Lester Straughan, Plaintiff-Respondent, v. Samuel T. ASHER, Defendant, Farmers Insurance Exchange of Farmers Insurance Group, Garnishee-Appellant. |
| Court | Missouri Court of Appeals |
Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for appellant.
Roberts & Roberts, Raymond S. Roberts, Sr., J. Richard Roberts, Farmington, for respondent.
BRADY, Commissioner.
Each of the cases consolidated in this appeal began as an action by the respondents, hereinafter referred to as the plaintiffs, wherein they sought to recover for personal injuries arising out of an automobile accident. Judgment was entered in favor of plaintiffs and against Samuel T. Asher, hereinafter referred to as the defendant, in the amount of $2,500.00 and costs in each case. Thereafter garnishment proceedings were instituted in each case against the Farmers Insurance Exchange of the Farmers Insurance Group, hereinafter referred to as the garnishee. Upon trial in the garnishment proceeding, the trial court found in favor of the plaintiff and the garnishee appeals.
In the trial court the parties filed a stipulation of facts. According to that stipulation, at the time of the accident the defendant was driving an automobile belonging to his mother, Ruby Littrell. This automobile was covered by a policy of liability insurance issued by the garnishee. Under the terms of that policy, such coverage as was afforded by the policy was extended to any person using the automobile other than the named insured provided the use was with the permission of the named insured. The stipulation stated the judgment in each of the personal injury actions, and that executions were issued and writs of garnishment were served upon the garnishee in each case. The pleadings in the garnishment proceeding consist of interrogatories and the answers thereto, plaintiff's denial of these answers, and the garnishee's reply to that denial. Before proceeding in the garnishment action, the parties stipulated that the only issue to be tried was whether the defendant was driving their automobile with the permission of his mother when the accident occurred and that the evidence on this issue would be applicable in each of the garnishment proceedings.
The only evidence on this issue offered by the plaintiffs consisted of testimony given by witnesses as to statements they stated they heard Mrs. Littrell make to the investigating officer at the scene of the collision. The garnishee objected to this testimony each time it was offered on the grounds that
The transcript discloses that this testimony came into the evidence in the following manner. In each instance the objection that the evidence would be hearsay was timely made and overruled and, for that reason, will not be shown in the following excerpts from the transcript. Lester Straughan was asked:
'Q. All right. Did you hear her there, in the presence of yourself and others, make some statements relative to who was driving, how they were driving the car or whether or not they were driving with her permission? Now, answer that yes or no.
'A. Yes, sir.
* * *
* * *
'Q. Go ahead and tell us what you heard her say.
'A. She was crying. She went over to Bill Black, best I remember it, she either took him by the coat or put her hands on him here and said, 'Bill, I knew better in the first place to let my boy have my car.' I believe that was right.
The witness Botkin was asked if he heard Mrs. Littrell make any statements relative to her boy driving the automobile, and testified as follows:
The witness Keith was asked if he heard Mrs. Littrell make any statements relative to how her son happened to be driving the car. He said that he did and when asked what he heard her say, testified:
After the usual preliminary questions, the witness Ruth Sago was asked to tell the court what statement she heard Mrs. Littrell make. She gave the following answer:
In like manner, the witness Glen Sago was asked to tell the court what statement he heard her make and answered:
The witness Botkin testified that he heard Mrs. Littrell make this statement '* * * somewhere around 8:30, 9:00.' Lester Straughan was at his home about 3 blocks away when he was notified of the accident and he went immediately to the scene. Mrs. Littrell arrived at the scene after he got there. From the testimony of Officer Black, the person to whom Mrs. Littrell made the statements these witnesses repeated, it appears that when Mrs. Littrell arrived at the scene there were two ambulances already there, and a wrecker was attempting to right one of the automobiles involved in the collision. He was in the center of the street, attempting to direct traffic and to get the ambulances on their way, when Mrs. Littrell ran up to him. He did recall that she told him it was her automobile. When asked if she did in fact make these statements during their conversation, his answer was 'I don't recall her saying one way or the other.' At another point he was asked a similar question and answered,
Mrs. Littrell denied making these statements. She also denied that she had given her son permission to use her automobile on this or upon any earlier occasion as he was 15 years of age and did not have a license. She did admit that on one occasion she had allowed him to drive her from her home to her mother's farm, a distance of 6 or 7 miles, so he could practice for the 'drivers test' he was to take soon. Her testimony was that the defendant and a 'couple of boys' came down to her place of employment. She drove home with them in the automobile, stopping on the way to pick up a girl friend whom she took home. She then stopped at a food market and shopped. She then drove home without any other stops. The defendant carried in the groceries and went back out to the automobile to wait with his friends. The boys had asked to go to the 'drive in' and Mrs. Littrell agreed to take them. Mrs. Littrell testified she found out about the accident about 10 minutes after her son left home when he came home to tell her. She had to put on a dress and then went immediately to the scene of the collision. When she arrived, she saw Jerry Counts lying on the ground and '* * * the little Straughan girl laying on a stretcher * * *.' She testified she was excited but when asked if she was sure what she did say, answered 'Oh, I, I assume that I know what I said.'
The defendant testified he never had permission to take the automobile alone on this or any other occasion. His testimony was that after carrying in the groceries he returned to the automobile to wait for his mother. After the boys had waited for some time, the witness Counts changed his mind about going to the 'drive in' and wanted to go home. The defendant testified Defendant stated that he had taken this automobile out on 2 other occasions when his mother was away from home, taking a duplicate set of keys out of his mother's dresser, but that she had never known about it. Counts testified that he had been with the defendant on another occasion when the latter took his mother's automobile in her absence. Counts also testified that the defendant did not go back into the house and had no opportunity to converse with his mother after he, Counts, changed his mind about going to the drive in and asked the defendant to take him home. The plaintiff fixed the time of the accident at 'About 7:30 or 8:00, somewhere, I'm not sure.' He placed the scene as about 7 or 8 blocks from his home and stated the accident occurred about 10 or 15 minutes after he left his home.
The rules of review in cases of this nature are well known. This court is to review the case de novo and is to reach its own conclusions as to the weight and value of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Sec. 510.310 RSMo 1959, V.A.M.S., and cases cited an n. 105.
The garnishee has briefed two allegations of prejudicial error. The second of these is the allegation that the trial court erred in admitting the allegedly hearsay testimony of the witnesses as that testimony is set out earlier in this opinion. We will not rule upon that allegation of error for the reason that this court is empowered to consider such of the evidence it deems admissible and to exclude from its consideration evidence improperly admitted. Feinberg v. Pfeiffer Co., Mo.App., 322 S.W.2d 163; Sec. 510.310, supra, n. 109. The remaining allegation of prejudicial error presented by garnishee is that the plaintiffs...
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