Tourkakis v. Billman
| Citation | 71 S.W.2d 1084 |
| Decision Date | 05 June 1934 |
| Docket Number | No. 22885.,22885. |
| Parties | TOURKAKIS et al. v. BILLMAN et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; M. G Baron, Judge.
"Not to be published in State Reports."
Action by Peter Tourkakis and another, co-partners, under the name and style of Field Restaurant, against Mrs. H. F. Billman, Henry F. Billman, Floyd Stough, and others. From a judgment for plaintiffs against defendants Henry F. Billman and Floyd Stough, they appeal.
Judgment reversed as to Henry F. Billman and affirmed as to Floyd Stough.
Walter Wehrle, of Clayton, for appellants.
E. C. Dodge, of St. Louis, for respondents.
Plaintiffs instituted their suit against the defendants in the justice court for damages alleged to have resulted from an automobile crashing into the front of a restaurant owned and operated by them.
On trial on appeal de novo in the circuit court the jury returned a verdict in favor of plaintiffs and against the defendants Henry F. Billman and Floyd Stough, in the sum of $300, and said defendants in due course appeal.
It appears that plaintiffs, as partners, owned and operated a restaurant on the northeast corner of the intersection of Euclid and McPherson avenues in the city of St. Louis; that after midnight on May 30, 1931, two automobiles collided in the intersection in front of their restaurant. The defendant Harry Jacobs was driving one of the colliding automobiles, a Nash sedan, which was the property of the defendant Max Soldz, northwardly on Euclid avenue, and the defendant Floyd Stough was operating the other automobile, a Packard sedan, which was the property of defendant Henry F. Billman, eastwardly on McPherson avenue.
According to Jacobs' testimony as he got within ten feet of the north curb line of McPherson avenue and was driving at the rate of fifteen miles per hour, he saw defendant Stough in the Packard car in the center of McPherson avenue approaching from his left. Jacobs immediately applied his brakes and swerved his automobile to the right, but the Packard car did not swerve, but crashed into the Nash at approximately the center of the said street, careened off to the left, jumped the sidewalk in front of plaintiffs' restaurant, and crashed into the front door and plate glass window thereof, causing certain damage.
Appellant Henry F. Billman here assigns as error the overruling of his demurrer offered at the close of plaintiffs' case, on the ground that there was no proof that the defendant Floyd Stough, who was the driver of Billman's car, was operating the car at the time in question as the agent or servant of Billman. After a careful reading of the record, we have come to the conclusion that the point is well taken.
Gus Gossrau was the only witness who testified concerning the use of Billman's car by Stough on the night in question. Gossrau testified that he lived across the street from plaintiffs' restaurant, and that on the night of the accident he was seated at the counter in the restaurant when the Packard car crashed into the front thereof, injuring him slightly and damaging his clothing by flying glass; that he called up the home of defendant Billman and was informed that he should call Rock Hill Quarries if he desired to speak to Mr. Billman; that he did so, and after some preliminary remarks Billman stated that he was the owner of the Packard car involved in the collision on May 30, 1931, and that Stough was operating the car that night with his consent. Gossrau further testified that he told Billman that he was acquainted with Stough, and that Billman then stated that Stough "had been out to their home and had borrowed their car to come home in and that this accident occurred after he had borrowed the car and come to St. Louis, and this accident had occurred during that time, and that was all he could tell me in explanation. * * *"
On cross-examination...
To continue reading
Request your trial