Veatch v. Tiernan.

• Decision Date: 03 April 1923
• Docket Number: No. 17599,17599
• Citation: 251 S.W. 420
• Parties: VEATCH v. TIERNAN.
• Court: Missouri Court of Appeals

251 S.W. 420

VEATCH v. TIERNAN.

No. 17599

St. Louis Court of Appeals, Missouri.

April 3, 1923.

Rehearing Denied May 25, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by James Veatch against Luke Tiernan. Judgment for plaintiff, and defendant appeals. Affirmed.

Bartley & Mayfield, of St. Louis, for appellant.

C. W. Rutledge and Charles H. Franck, both of St. Louis, for respondent.

BIGGS, C.

Plaintiff recovered a judgment for $1,350 on account of personal injuries received on March 8, 1920, by being struck and run over by a horse and wagon alleged to be owned and negligently driven by an employé of the defendant. The accident occurred at the corner of Fourteenth and Cass avenues, in the city of St. Louis. No question arises over the pleadings or as to the sufficiency of plaintiff's evidence to establish "the negligent act on the part of the driver.

Defendant appeals, claiming that his demurrer to the evidence should have been sustained, for the reason that it is alleged that the evidence was insufficient to show ownership of the wagon in the defendant, and that the driver at the time was employed by the defendant and acting within the scope of his authority. Defendant offered no evidence, but stood upon his demurrer requested at the close of plaintiff's case.

Plaintiff's evidence tended to prove that the vehicle that injured him was a one-horse spring wagon driven at the time by a man who gave his name as "Smith"; that the place of injury was at Fourteenth and Cass avenues, public streets in the city of St. Louis; that the wagon had painted thereon, "Luke Tiernan, Tinner, Guttering and Spouting," and defendant's address was also painted on the wagon; that the accident occurred in the morning between 7 and 8 o'clock, and that after plaintiff was injured a police officer was called, who, after taking plaintiff to the City Dispensary and having his wounds treated, went to Tiernan's place of business and there asked for Smith. Some one, the evidence does not disclose who, informed the officer that Smith was "on a job at Seventeenth and Olive streets." The officer accompanied by plaintiff went to that point, and there found Smith working on a furnace, and there also found the same horse and, wagon that ran over and injured the plaintiff.

As stated, the defendant offered no evidence to disprove the foregoing facts and the inferences that may arise therefrom. We have recently been over the subject in the case of Rockwell v. Standard Stamping Co., 210 Mo. App. 168, 241 S. W. 979.

We think the foregoing evidence was clearly sufficient to prima facie establish the fact that the defendant owned the wagon which injured the plaintiff; that the driver thereof was in the employ of the defendant and was at the time acting within the scope of his employment. The facts in behalf of plaintiff are stronger than were the facts in the Rockwell Case going to establish a prima facie case. See, also, Fleishman v. Ice & Fuel Co., 148 Mo. App. 117, 127 S. W. 660; O'Malley v. Construction Co., 255 Mo. 386, 164 S. W. 565; Mann v. Stewart Sand. Co. (Mo. App.) 243 S. W. 406. The court properly overruled defendant's demurrer to the evidence.

Error is also assigned in the giving of plaintiff's instruction on the measure of damages, in that it permitted a recovery for loss of earnings as a concrete worker to the date of the filing of the petition at the rate of $6.40 per day. It is claimed that this is an improper standard with which to measure the plaintiff's loss of wages, inasmuch as it was not shown by plaintiff that prior to his injuries he had worked as a concrete worker and was thereby earning that sum of money, but, on the contrary, it was shown that plaintiff's wages just prior to his injury had been $3.50 per day. While it is true that plaintiff had not been engaged in concrete work for some time prior to his injury, he had been doing that kind of work for many years, and at the time he was injured he testified that he had a few days prior thereto secured a union card as a concrete worker and was promised work as such at $6.40 per day, starting the week following his injuries. If the jury believed that the plaintiff was a...