Ursch v. Heier
| Decision Date | 02 May 1922 |
| Parties | JOSEPH URSCH, a Minor, by Next Friend, Respondent, v. HENRY HEIER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.
REVERSED.
Judgment reversed.
Robert C. Powell for appellant.
(1) While in an action for injuries from a collision with an automobile, proof that the automobile was being operated by defendant's regularly employed chauffeur raises a presumption that the chauffeur was acting within the scope of his employment, yet when there is positive proof to the contrary and that such chauffeur was engaged on a mission purely of his own, that presumption takes flight, and unless plaintiff introduces evidence (in rebuttal) tending to disprove defendant's postive testimony to this effect, it then becomes the duty of the court to declare as a matter of law that the plaintiff cannot recover. No evidence was introduced by plaintiff in this case tending to disprove defendant's positive evidence that the chauffeur was on a mission purely of his own, and hence the court erred in refusing defendant's instruction offered at the close of all the testimony, declaring as a matter of law that the plaintiff could not recover. Guthrie v. Holmes, 272 Mo. 215; Vallery v. Heese Bldg. Material Co., 211 S.W. 95; Kilroy v. Crane Agency Co., 203 Mo.App 302; Gordon v. Bleek Automobile Co., 233 S.W. 265. (2) No admission of any kind was testified to as having been made by defendant that the chauffeur was on his master's business or acting within the scope of his employment when the accident occurred, creating no exception to the rule as set out in point 1. Pinteardd v. Hosch, 233 S.W. 81; Latham v. Hosch, 233 S.W. 84. (3) In spite of the law, as set out in points 1 and 2, supra, the court sent the case to the jury, and, having done so, instruction No. 1 for plaintiff should not have been given, as it has the tendency of assuming that at the time of the accident the defendant was actually acting within the scope of his employment. This instruction should have been refused and defendant's instruction No. 2, which was refused by the court, should have been given. (4) No evidence of any kind appearing that the chauffeur at the time of the accident was engaged in his master's business or within the scope of his employment but, on the other hand, direct evidence appearing to the contrary, to-wit, that the chauffeur was on a mission purely of his own, without the knowledge, consent or permission of his employer, in view of instruction No. 4 given on behalf of defendant, without objection by plaintiff, the jury was bound to find for the defendant, and, in failing so to do, evidenced decided bias and prejudice in plaintiff's favor. (5) The physical facts, as testified to by plaintiff, show the impossibility of the accident occurring as he described it, and for this further reason the verdict is the result of bias and prejudice of the jury in his favor. (6) Defendant's instruction No. 3 refused by the court should have been given, as it correctly states the law. This case, as the evidence shows, is probably the result of either the plaintiff's negligence, as testified to by the absolutely disinterested witness, Dr. Stewart, or the result of an unavoidable accident. At any rate, inasmuch as the case was sent to the jury, defendant had the right to have the jury consider the question as to whether or not it was the result of an unavoidable accident, and his instruction No. 4, refused by the court, should have been given to let the jury so decide.
Charles Fensky and Charles E. Morrow for respondent.
(1) The admission of the defendant that the plaintiff was injured by his chauffeur who was working for him at the time and the admission of the chauffeur brought out by defendant on cross-examination of Mrs. Ursch that he was working for the defendant at the time, are admissions of facts. They do not rest upon presumptions of law and cannot be restricted to the fact that the chauffeur was simply in the general employ of the defendant at the time. They are evidence that the defendant's chauffeur was in his service engaged in his business and was acting within the scope of his employment at the time the plaintiff was injured. Pinteardd v. Hosch, 233 S.W. 81. (2) The construction of the admission of defendant offered in evidence was for the jury. Cafferatta v. Cafferatta, 23 Mo. 235; Sparr v. Wellman, 11 Mo. 230; 22 C. J. 417. The jury had a right to give credence to that part of the admission only which is against the interest of the defendant. Hormann v. Wirtel, 59 Mo.App. 646. (3) It is not essential to constitute the admission of defendant evidence against him that he should have personal knowledge of the acts admitted. Sparr v. Wellman, 11 Mo. 230; Erskine v. Loewenstein, 82 Mo. 308; Brookfield v. Drury College, 139 Mo.App. 339. (4) There is no question that the chauffeur was in the general employ of the defendant and had been sent out on his business. The place where plaintiff was injured was only five or six blocks from the place where he claimed he had delivered the coffin box and the deviation was so slight in point of distance and time and the place where the chauffeur claims he was going for the pears for his own use was so close and the thing he claims he intended to do for his own benefit was so slight that they were mere incidents in the line of his service of defendant and did not exonerate the defendant from his negligence. Guthrie v. Holmes, 272 Mo. 215. (5) Defendant's instruction No. 3 was properly refused. The prior contributory negligence of plaintiff, if any, is presupposed in a last chance case. Klockenbrink v. Railroad, 172 Mo. 678. Even if the plaintiff's prior contributory negligence was in the case in order to prevent his recovery, it must directly contribute and said instruction only required the jury to find that it contributed to his injury. Klockenbrink v. Railroad, 172 Mo. 678; Moore v. Railroad, 126 Mo. 265. (6) An accident instruction has no place in a last chance case. Defendant's instruction No. 4 was properly refused. Simon v. Met. St. Ry. Co., 178 S.W. 449; Beauvais v. St. Louis, 169 Mo. 500; Wise v. Transit Co., 189 Mo. 560; Beave v. Transit Co., 212 Mo. 331; Felver v. Railroad, 216 Mo. 209; Lagrace v. Railroad, 183 Mo.App. 70; Beard v. Railroad, 197 S.W. 911; Tallman v. Nelson, 141 Mo.App. 486.
--Plaintiff, a minor, by next friend, sues the defendant to recover for personal injuries alleged to have been sustained by said minor by being struck by an automobile belonging to defendant and driven by his chauffeur, Harry J. Schumacher.
The petition alleges that plaintiff on October 1, 1918, at the intersection of Hanover and Gravois avenues in St. Louis County, while riding a bicycle was struck and injured by an automobile owned by defendant and driven at the time by defendant's servant and employee. The negligence alleged is that defendant's agent failed, when meeting plaintiff, to turn to the right; failed to slow down the automobile to such speed that the same could have been readily stopped; that the driver of the automobile saw, or by the exercise of ordinary care could have seen, the plaintiff in imminent peril in time to have stopped or checked the automobile and thus avoided the injury, and, finally, that the automobile was operated at an unreasonable rate of speed.
The answer is a general denial and a plea of contributory negligence.
The reply is a general denial.
The cause was tried to a jury, resulting in a verdict upon which judgment was rendered in favor of plaintiff in the sum of $ 1500. Defendant appeals.
It appears that October 1, 1918, was a clear, dry day, and that the accident occurred about 2:30 in the afternoon of that day. The place of the accident was at the intersection of Hanover and Gravois avenues in St Louis County. These streets intersect at right angles, and at this point Gravois avenue runs north and south, and Hanover avenue runs east and west, though Gravois avenue is a main road leading out from the City of St. Louis towards the west.
The defendant lived at 3432 Shenandoah avenue in the City of St. Louis, and was in the undertaking business. In his employ at the time was one Harry J. Schumacher, who on the day mentioned was directed by defendant to deliver an outside coffin box at Old St. Marcus Cemetery. This cemetery is situated on Gravois avenue, about five blocks east of River Des Peres in the City of St. Louis. While it is not entirely clear how far this cemetery is from the street intersection where the accident occurred, we think it may be said that the distance is about eight or ten city blocks, though this road is not laid off at this point in blocks.
The chauffeur on the way to the cemetery took with him his nephew, his niece and her child. He delivered the box at the cemetery, and then instead of returning to the defendant's garage with the machine, he proceeded out Gravois Road, passed the City limits, and went out into the county. The chauffeur testified, and it is not controverted, that he had started into the county to go to "Long's farm," which is located about three miles out in the county and west of the City limits. The purpose of this trip was to get some pears for his personal use, and he had his relatives in the machine for the purpose of taking this ride into the county.
It is not necessary to detail plaintiff's evidence as to the circumstances surrounding the accident there being no point made that the verdict is not supported by substantial evidence on behalf of plaintiff, except that learned counsel for appellant insists that defendant's servant was not acting...
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