Vallery v. Hesse Bldg. Material Co.

• Citation: 211 S.W. 95
• Decision Date: 07 April 1919
• Docket Number: No. 13190.,13190.
• Parties: VALLERY v. HESSE BLDG. MATERIAL CO.
• Court: Court of Appeal of Missouri (US)

211 S.W. 95

VALLERY v. HESSE BLDG. MATERIAL CO.

No. 13190.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

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

"Not to be officially published."

Action by Charles A. Vallery against the Hesse Building Material Company and others. Verdict for plaintiff, and from order sustaining motion for new trial, as to defendant named, plaintiff appeals. Affirmed.

Groves & Watkins and John S. Boyer, all of St. Joseph, for appellant.

Culver & Phillip and B. G. Voorhees, all of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff instituted this action against the Hesse Building Material Company, a corporation, and defendants Rix and Hesse, whereby he seeks to recover $500 as damages for injury to his automobile by collision in the streets of St. Joseph with an automobile owned by the corporation defendant. At the close of the evidence the trial court gave a peremptory instruction in favor of defendant Hesse. The cause was submitted as to defendant Rix and the corporation defendant, and a verdict for $500 returned. Afterwards the trial court sustained a motion for new trial as to the corporation defendant on the ground that there was no evidence connecting it With the use of the automobile at the time of the collision. Plaintiff appealed from that order. The motion for new trial filed by defendant Rix was overruled and no appeal taken.

It appears that the corporation defendant is the owner of the machine which collided with plaintiffs and used it in the prosecution of its business, and that defendants Hesse and Rix are officers of that corporation; that the day of the collision was Sunday; and that defendant Rix was defendant Hesse's nephew and lived in St. Joseph with his grandmother and mother (mother and sister of defendant Hesse). it further appears that the machine which collided with plaintiffs was kept in a garage at the grandmother's home, where Rix lived, and that defendant Hesse had it "down in town" that Sunday morning, but returned to his mother's home, where he had "Sunday dinner" with the family, including Rix. After dinner, Rix drove his Uncle Hesse to the latter's home, about four blocks off, and on his way returning to his grandmother's the collision occurred.

It is clear that there is nothing in this recital to connect the corporation defendant with the collision. Plaintiff practically concedes this; but he relies upon a rule of law to the effect that, when it is shown...