Ursch v. Heier

• Decision Date: 02 May 1922
• Docket Number: No. 17201.,17201.
• Citation: 210 Mo. App. 129,241 S.W. 439
• Parties: URSCH v. HEIER.
• Court: Missouri Court of Appeals

241 S.W. 439

210 Mo. App. 129

URSCH v. HEIER.

No. 17201.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Joseph Ursch, a minor, by next friend, against Henry Heier. Judgment for plaintiff, and defendant appeals. Reversed.

Robt. C. Powell, of St. Louis, for appellant.

Charles Fensky and Charles E. Morrow, both of St. Louis, for respondent.

DAUES, J.

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 $1,500. 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 within the scope of his employment at the time of plaintiff's injury. It is then sufficient here to say that plaintiff introduced evidence sufficient to take the case to the jury on the question of Schumacher's negligence, the only question being whether defendant's chauffeur was at the time of the accident acting within the scope of his employment.

There was evidence on the part of plaintiff tending to show that plaintiff, then about 16 years old, was riding a bicycle, and had turned from Hanover avenue into Gravois avenue, and was riding towards the city of St. Louis; that after he turned into Gravois avenue he was on the right side of the street coming east (or nearly north), and that Schumacher was driving defendant's automobile in the opposite direction, and was on the left side of Gravois avenue going out from the city; that he came towards plaintiff ; that plaintiff, in order to avoid being struck; turned to the left side of the street, and as he turned he was struck by defendant's automobile and injured; that Schumacher was then driving the car at about 25 miles an hour. Plaintiff's injury was a broken left leg and other injuries. No question arises as to the amount of the verdict.

Defendant's evidence, given by the chauffeur and by Dr. James Stewart, supervisor of the medical department of the board of education of the city of St. Louis, a disinterested witness, is strongly contradictory to plaintiff's testimony as to the facts and circumstances surrounding the collision.

The question presented on this appeal is whether the court erred in refusing defendant's instruction, offered at the close of the testimony, declaring as a matter of law that the plaintiff could not recover. The point made is that there is no evidence of any kind. appearing in the record that Schumacher at the time of the accident was then engaged in his master's business, or within the scope of his employment, but that, on the other hand, there is direct evidence appearing to the contrary, to wit, that the chauffeur was at the time of the accident on a mission purely of his own, without the knowledge, consent, or permission of defendant, his employer. Plaintiff, on the other hand, insists that such showing was made by introducing admissions of defendant to that effect, and relies upon testimony given by Clara Ursch, plaintiff's mother, appearing in the record as follows:

"A. I went down to Mr. Heier, and he was down on the pavement, and I said, `Is this Mr. Heier?' and he says, `Yes.' `Well,' I says, `I came down to see about the accident to my son.' He says, `Lady, I never ran over that boy.' He says, `My chauffeur ran over him at the time.'

"Mr. Powell: Just a minute; Mr. Heier was not present at the accident at all. It is not an admission against interests in any way whatsoever. I don't see the purpose of the question.

"The Court: Do you claim that he was present?

"Mr. Morrow: I claim that he made the admission that this chauffeur was working for him at the time, and that is the purpose, that I want to show that this man was working for him.

"Mr. Powell: I withdraw the objection.

"The Court: I don't see any objection to that; I didn't understand the purpose for which it was offered.

"Mr. Morrow: Q. There has been so many breakings in on this; now, you had better commence and tell what you said to him and what he said to you about whose chauffeur that was. A. Mr. Heier was standing on the sidewalk when I went there, and I says, `Is this Mr. Heier?' He says, `Yes, ma'am.' I says, `Well, I came down to see you about the accident to my son.' He says: `Lady, I didn't run over your son. My chauffeur was working for me at that time.' He says, `He is on the inside of the building.' I says, `Where at?' He says, `Inside; you will have to go in and talk to him.' So I went in the undertaker's stable and I talked to Mr. Schumacher."

On cross-examination the following question and answer was given by this witness:

"Q. And you, as a matter of fact, went in there to ask for the chauffeur, did you not? A, I went to see, see Mr. Heier, about what he intended to do for my son, and he says he wasn't the man that ran over the boy; that his chauffeur had hit him."

Also, the following questions and answers appeared in the testimony of this witness:

"Q. Did you have a talk with Mr. Schumacher? A. Yes, sir; I did.

"Q. I will ask you whether or not he told you that he was within the scope of his employment, that is to say, he was working on Mr. Heier's business, when he ran over the boy? A. He said he was working for Mr. Heier.

"Q. At the time? A. Yes, sir.

"Q. That he was doing something for Mr. Heier at the time? A. He didn't say what he was doing; he didn't tell me what he was doing."

Counsel for plaintiff says that defendant by these statements has admitted that his chauffeur ran over the plaintiff and injured him, and that he was working for defendant at the time, and lays great stress upon the word "working" as meaning that the defendant admitted, by the use of that word, that the chauffeur was at the time of the accident actually engaged in "working" for defendant; whereas, on the other hand, it is argued by defendant's counsel that the clause "my chauffeur was working for me at the time," and other statements made, mean, and can only mean, that defendant informed plaintiff's mother by this statement that he, (the defendant) had nothing to do with the misfortune, but that he directed her by those words to see Schumacher, his employee, who ran over her son..

We have examined this testimony very carefully, and, indeed, resolved to give plaintiff the benefit of every legitimate inference favorable to him; yet we conclude that there is nothing in such testimony of defendant's admissions which goes beyond the mere admission that the person driving defendant's car at the time of the injury was defendant's employee. There certainly is nothing contained in any statement by defendant from which it may be said that the defendant admitted that the chauffeur was at the time of the accident acting within the scope of his employment. It is but an admission, as we...