Tutie v. Kennedy

• Decision Date: 04 May 1925
• Docket Number: No. 15135.,15135.
• Citation: 272 S.W. 117
• Parties: TUTIE v. KENNEDY.
• Court: Missouri Court of Appeals

272 S.W. 117

TUTIE v. KENNEDY.

No. 15135.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Della M. Tutie against Thomas L. Kennedy, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

John S. Boyer and A. M. Evans, both of St. Joseph, for appellant.

W. B. Norris and Barney E. Reilly, both of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for the wrongful death of plaintiff's husband, John F. Tutie. Plaintiff recovered a verdict and judgment in the sum of $4,000, and defendant has appealed.

The facts show that plaintiff's husband, about 5:30 p. m. of the 14th day of May, 1923, received injuries from which he died. He was injured while driving an automobile which was run into at the intersection of Twenty-Second and Penn streets in St. Joseph, Mo., by another automobile owned by one Woolen and being driven by one. Lilly, an employee of the defendant. As the question of the propriety of the trial court's refusal of defendant's demurrer to the evidence has been raised, it is necessary for us to state the facts in their most favorable light to plaintiff.

Twenty-Second street and Penn street are public streets, Twenty-Second street running north and south, and Penn street east and west. The evidence shows that Lilly drove the car, a Studebaker, on Penn street approaching and into Twenty-Second street from the east, at a high and dangerous rate of speed (50 or 55 miles per hour), slightly to the south of the center line of Penn street, and without giving any signal. Deceased was driving a Ford delivery truck belonging to his brother-in-law, one Muleski, southwardly along the west side of Twenty-Second street, at the rate of about 12 or 15 miles per hour, and sounding his horn when about to enter Penn street. The Studebaker ran into the Ford west of the intersecting center line of Twenty-Second street and pushed it against a tree, slightly beyond the southwest curb of the streets, demolishing the Ford and injuring deceased so that he died a few days thereafter. The evidence shows that the collision and the driving of the Ford against the tree were of great violence and caused a great noise.

The argument that the demurrer to the evidence should have been sustained is directed to testimony concerning the question as to whether Lilly, who was in the general employ of the defendant, was acting within the scope of his employment at the time he ran the Studebaker into the Ford. The evidence on this subject tended to show that the defendant's place of business was located at Eighth and Charles streets in the city of St. Joseph; that his business was conducted under the name of Kennedy Motor Company; that he was the agent of the Studebaker Automobile Company, and in that connection had a stock of automobile parts and a repair department; that Lilly was employed in the stock department, which was under the exclusive control and management of defendant's son, Byron Kennedy. Defendant also operated a meatshop, and had in his employ one Woolen, who owned the Studebaker automobile involved in the collision. On the day in question Woolen had left his car upon the street in front of defendant's automobile establishment for the purpose of having a sun vizor bracket welded. The bracket was a small piece of aluminum which could be moved about without the aid of an automobile or other conveyance.

Defendant usually had his welding done at the S. & W. Welding Company, which was five or six blocks away, but on the day in question defendant's son instructed Lilly to take the bracket to Huddleston & Snavely's welding shop, located about one block away, for the repairs to be made. Lilly took the bracket to Huddleston & Snavely and found that he could not have the welding done there and decided to take the bracket to the S. & W. Welding Company. Defendant's evidence tends to show that, without reporting to any one at defendant's place of business, Lilly on his own initiative took Woolen's car and drove it to the S. & W. Welding Company's shop. Upon arriving there he ascertained that it would require 15 or 20 minutes before the welding could be finished. He thereupon telephoned the office of defendant and informed Byron Kennedy of his whereabouts and of the time required for the welding, and asked whether he should return to defendant's place of business or wait for the welding to be done, and was informed by Byron Kennedy to wait at the welding company's place until the work was finished. Defendant's evidence tends to show that no one at defendant's place of business knew that Lilly had taken Woolen's car.

At the trial defendant filed a motion for continuance on the ground of the absence of the witness Lilly, setting forth what Lilly would testify to if he were present. Plaintiff admitted that if Lilly were present he would testify to the facts set forth in the application for continuance, and the cause proceeded. A part of Lilly's statement is as follows:

"* * * That at the time of said collision and for a long period thereafter he did not talk to any person or make any statement to any person about what he was doing or about what business he was engaged in, or how or why the collision took place; and that at said time he was not on any business of any character for Thomas L. Kennedy, the defendant in this case, or the Kennedy Motor Company, or for any person connected therewith, but that he was merely taking a drive for his own pleasure and to consume the time which would have been required to wait at the welding company."

The statement also contained facts concerning Lilly's going to the welding shop and his telephone conversation with Byron Kennedy, as above set forth.

The witness Coltrane, who was an employee of defendant, testified that he heard Byron Kennedy tell Lilly to have some welding done and to deliver "a couple of packages" in the east end of town; that the witness left the room and went to work on another car when he saw Lilly get into the Studebaker car and drive it off. Coltrane testified that it was a part of Lilly's work to deliver packages "out in town."

To impeach Lilly, plaintiff in rebuttal placed upon the stand a Mrs. Carr, who testified that in a conversation with Lilly after the collision he said to her that he "telephoned to Mr. Byron Kennedy that he couldn't get it completed [the welding] for 15 or 20 minutes, and that Byron Kennedy told him to finish the delivery of the packages and go back after the piece that was to be welded." Also the witness Coltrane, who testified that after the collision he asked Lilly, "Why don't you tell the truth about this thing?" and Lilly replied that "he had a package to deliver after the collision and he didn't dare tell it because Kennedy wouldn't let him tell it." In order to impeach defendant's witness Frazier, it was shown by the witness Coltrane that Frazier had a conversation with a Mr. Reilly in the corridor of the courthouse on the day Frazier testified in which Frazier said that Lilly told him that he had delivered a couple of packages and was going to deliver another package that had not been delivered at the time of the collision. The testimony shows that immediately after the collision a package was seen in the rear of the Woolen car having a sticker on it which contained the words, "Kennedy Motor Company." Lilly at the time of the collision was in coveralls that had on its back the words, "Kennedy Motor Company."

Frazier was a cousin of Lilly and lived at Twentieth and Seneca streets in the city of St. Joseph, which was in the eastern part of the city and about 11 blocks from the S. & W. Welding Company's place of business. Instead of waiting at the welding shop for the welding to be done, Lilly drove past his cousin's house to the eastern part of the city and thence back to Frazier's house, where he talked with Frazier in reference to an engagement with some young ladies for that evening, and invited Frazier and his little sister to get into the automobile and "go around the block" with him, and when they reached Twenty-Second and Penn streets the collision occurred. This was the testimony of Frazier, who was put on the stand by the defendant. They went on Twentieth street one block to Penn and east on Penn to Twenty-Eighth street, and from there started back west on Penn in the general direction of defendant's place of business and of the place of business of the S. & W. Welding Company. IA was about nine blocks from Frazier's house to Twenty-Eighth and Penn, and six blocks from that point to the point of the collision. Frazier testified that they stopped to talk to no persons and transacted no business from the time they left his house to the time of the collision. When Frazier was asked if Lilly told him anything when he got into the car about having packages to deliver, he stated, "he said he had to stop and get something."

There is evidence tending to show that immediately after the collision defendant went to the place it occurred and examined at least one witness in reference to the accident ; that an employee of the defendant took the Studebaker back to the shop and that defendant soon afterwards took written statements from the various witnesses of the accident, including that of Lilly; that Lilly continued to work for defendant a number of months after the accident occurred; that defendant repaired the damage caused the Studebaker by the collision, and we may assume that this was done at defendant's expense, for the reason that defendant objected to plaintiff's proof of this fact, which objection was sustained. Sissel v. Sherin et al. (Mo. App.) 268 S. W. 668.

Some time after the collision, plaintiff in the case at bar and one Muleski instituted separate suits against the defendant; Muleski seeking to recover from the defendant the damage to his Ford truck. Muleski was placed upon the stand...