Hay v. Ham, 23648

• Decision Date: 03 December 1962
• Docket Number: No. 23648,23648
• Citation: 364 S.W.2d 118
• Parties: Olaf HAY, Respondent, v. Frances HAM, Appellant.
• Court: Missouri Court of Appeals

Page 118

364 S.W.2d 118

Olaf HAY, Respondent, v. Frances HAM, Appellant.

No. 23648.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

Vance Julian, William J. Cason, Clinton, for appellant.

Poague, Brock & Wall, Clinton, for respondent.

CROSS, Judge.

Plaintiff Olaf Hay sues Mrs. Frances Ham, defendant, to recover damages on account of personal injuries inflicted upon him when Mrs. Ham allegedly caused a parked automobile to start up suddenly, climb a curb, cross a sidewalk, crash into the interior of plaintiff's store and strike him.

The action was originally filed against Mrs. Ham and her husband, John Ham, as joint defendants. However, the petition was dismissed as against Mr. Ham before the jury was empaneled and the cause was tried against Mrs. Ham as the sole defendant. The trial resulted in a jury verdict and judgment for plaintiff in the amount of $10,000.00. Defendant has appealed.

The evidence in the case was introduced solely by plaintiff with the exception of a release document introduced by defendant during cross examination of plaintiff. Mrs. Ham testified only when called to the stand for cross examination by plaintiff's counsel. After plaintiff rested, defendant offered no evidence. We here note the essential facts and circumstances relating to the incident which caused plaintiff's injuries and damage.

On the 7th day of April, 1959, shortly before store closing time in the evening, Mr. and Mrs. Ham went to plaintiff's grocery store in their jointly owned automobile to pick up some previously ordered articles of merchandise. Mr. Ham drove the car and Mrs. Ham rode in the right front seat as a passenger. Upon arrival, Mr. Ham parked the vehicle in a regular diagnoal parking space in front of the store, got out of the car, and left the motor running with the gears of the automatic transmission engaged. Mrs. Ham also got out of the car, received some articles of merchandise delivered to her by Isabel Burry, a store employee, put them in the back seat and reentered the front seat of the automobile on the right side. After inviting Isabel Burry to ride home in the car, Mrs. Ham then 'scooted' over to the center of the front seat to make room for the intended passenger. She moved both her body and feet and put her feet on the 'hump that's in the middle'. The motor began to 'race' and the automobile ran forward, climbed the curb which was 5 inches high, traveled across the 12 foot wide sidewalk, crashed into the store to a distance of approximately 9 feet inside the building, knocked out approximately 15 feet of the store front, ran against Mr. Hay, pushed and rolled him against various parts of the store, knocked him to the floor, rendered him unconscious and inflicted substantial injuries upon him. The store and contents were extensively damaged.

There is no direct evidence to show what made the engine accelerate and the car run forward. At the time of the occurrence only Mrs. Ham was in the automobile. She admitted she didn't know whether or not her foot hit the accelerator, and was unable to say what caused the car to run forward. However, plaintiff testified that after the accident, at the store, Mrs. Ham made the statement that 'her foot slipped off the hump onto the accelerator'. Mrs. Ham did not deny that she made the quoted statement. No contention is made on behalf of defendant that plaintiff failed to make a submissible case of negligence.

The evidence further shows that on July 24, 1959, and prior to filing this suit, plaintiff compromised with defendant certain elements of his cause of action, accepted the sum of $6500.00 in settlement, and executed a written release accordingly. The release provided, in part, as follows: '* * * said release including loss of time and profits and expenses of any character whatsoever, except medical, hospital, and nursing expenses of the said Olaf Hay, and except damages for personal injuries to the said Olaf Hay. It is understood and agreed, however, that this release covers loss of all merchandise, cash, produce, fixtures, extra help, miscellaneous hauling, extra salaries, loss of profit, loss of earnings to date, replacement help, and other items * * *'. It is evident from the terms of the release that plaintiff did not settle and release his claim for damages for 'personal injuries', 'medical, hospital and nursing expenses', and 'loss of earnings' from and after the date of settlement. The release was introduced in evidence by defendant during her cross examination of plaintiff as above noted.

In submitting the case to the jury, the trial court gave plaintiff's verdict directing instruction (No. 1), the entire text of which we here quote:

'INSTRUCTION NO. 1

'The court instructs the jury that if you find and believe from the evidence that at about 6:00 p. m. on April 10, 1959, Defendant, Frances Ham, was sitting in the 1955 Chrysler mentioned in the evidence which was parked in the public street adjoining the curb in front of the Penny Grocery on the North side of the Public Square in Clinton, Missouri, if so, and that at that time Plaintiff was standing within and near the front of the Penny Grocery Store, if you so find, and if you further find that at said time and place, Defendant Frances Ham, stepped on the accelerator of said Chrysler and caused the Chrysler to suddenly move forward, over the curb, onto the public sidewalk, and through the front and into the private property of the Penny Grocery Store, if so, and that in so doing Defendant Frances Ham failed to exercise the highest degree of care, and was thereby negligent, if so, and if you find that such negligence directly caused the Chrysler automobile to strike the Plaintiff, if so, and cause injuries to the person of the Plaintiff, if so, then your verdict should be in favor of the Plaintiff, Olaf Hay, and against the defendant, Frances Ham'.

Defendant first complains that the giving of Instruction No. 1 was error because that instruction incorrectly informed the jury it was defendant's duty to use the highest degree of care, when, under the noncontroverted facts in evidence, it was her duty to exercise only ordinary care. It is defendant's contention that Section 304.010 V.A.M.S., which requires that 'Every person operating a motor vehicle on the highways of this state * * * shall exercise the highest degree of care, * * *' does not apply to her in this case for the reason that she was not 'operating' the automobile when it was caused to run forward. She insists that Mr. Ham was still the 'operator' of the car after he parked it in gear, left the motor running and left the car, and argues that even if she let her foot slip and hit the accelerator pedal and so caused the car to move ahead, that occurrence was only an isolated and unintentional act on her part that would not amount to 'operating a motor vehicle' under the statute's provision. Our decision of this assignment must be made without benefit of any previous decision bearing directly on the question. None has been cited by either party, nor has any been found by our research.

The foundation of legislative intent in the enactment of Section 304.010 is 'to require users of motor vehicles upon public highways to exercise the highest degree of care'. Lafferty v. Wattle, Mo.App., 349 S.W.2d 519. The underlying purpose of Section 304.010 (and of related enactments) is the protection of life, limb and property of all persons from destruction or damage resulting from the operation of motor vehicles on the public highways. See Teters v. Kansas City Public Service Co., Mo.Sup., 300 S.W.2d 511. It is the duty of our courts to reasonably interpret Section 304.010 so that the legislature's purpose in enacting that law shall prevail and not so as to defeat the obvious intention of the lawmakers. Nicholas v. Kelley, 159 Mo.App. 20, 139 S.W. 248. It is a matter of common knowledge and universal concern that the millions of motor vehicles operating daily on our highways constitute one of the deadliest and most destructive agencies in our present society.

In construing Section 304.010 Missouri courts have given a broad interpretation of the term 'operating'. To illustrate that a narrow, literal construction of the word is not favored, we note the following decisions: In Teters v. Kansas City Public Service Co., Mo.Sup., 300 S.W.2d 511, a delivery truck driver parked the truck, went into a store, returned to the truck, climbed in the rear of the vehicle and opened the rear door, causing it to come into contact with a passing bus. In so doing, the driver was held to be 'operating' the truck. In Phillips v. Stockman, Mo.App., 351 S.W.2d 464, the driver of a stalled automobile 'pulled over' to the side of the road, got out of the car and looked under the hood. It was held that he was still operating the car. In Karnes v. Ace Cab Co., Mo.App., 287 S.W.2d 378, the driver stopped a taxicab and opened the cab door. A child passing on a bicycle struck the door and was injured. The court held that the cab driver was an 'operator' when he opened the door. Stewart v. Jeffries, 224 Mo.App. 1050, 34 S.W.2d 560, is another case in which the automobile stalled and the driver got out and looked under the hood. The court said he was an operator, while so doing when another vehicle crashed into the rear of the stalled automobile. Likewise, in Thaller v. Skinner & Kennedy Co., 233 Mo.App. 1081, 130 S.W.2d 244, a woman who had stopped her car for a traffic signal was considered as an operator when a truck ran into the rear of the stationary vehicle.

Many shades of meaning have been given to the words 'operate', 'operator' and 'operating' by dictionaries and text writers. Both parties have submitted, from those sources, various general definitions of the words in question. However, we turn to Missouri decisions for the definitions that are applicable to the precise issue involved.

Our courts have consistently defined the word 'operating', as...