Winfrey v. Lazarus

• Decision Date: 03 May 1910
• Citation: 128 S.W. 276,148 Mo. App. 388
• Parties: WINFREY v. LAZARUS.
• Court: Missouri Court of Appeals

128 S.W. 276

148 Mo. App. 388

WINFREY v. LAZARUS.

St. Louis Court of Appeals. Missouri.

May 3, 1910.

1. APPEAL AND ERROR (§ 1003)—VERDICT— CONCLUSIVENESS.

The appellate court will not determine whether the verdict is against the weight of the evidence; that being a matter for the trial court.

2. MASTER AND SERVANT (§ 330)—INJURY TO THIRD PERSONS—ACTIONS—JURY QUESTION —SCOPE OF EMPLOYMENT.

In an action for personal injuries caused by the collision of plaintiff's buggy with defendant's automobile driven by his chauffeur, evidence held to show that the chauffeur was acting under defendant's authority and within the scope of his employment when the accident occurred.

3. MASTER AND SERVANT (§ 302)—INJURY TO THIRD PERSONS—LIABILITY OF MASTER.

An employer is liable for damage caused by his employé's negligence while acting in the scope of his employment, though the negligent act was not necessary to the performance of his duties, or expressly authorized by or known to the employer.

4. MASTER AND SERVANT (§ 302)—LIABILITY TO THIRD PERSONS—EMPLOYÉ'S NEGLIGENCE —ACTIONS—INSTRUCTIONS.

In an action for personal injuries caused by the collision of plaintiff's buggy with defendant's automobile, driven by his chauffeur, the court instructed that if plaintiff's buggy was run into by an automobile operated by one employed by defendant to do so, who was then operating it in the course of his employment, and who ran it at such a high speed, or negligently operated it at a speed greater than was reasonable in view of the traffic and use of the highway, or so great as to endanger life and limb, and plaintiff's injury was directly due to his negligence, the jury should find for plaintiff. Held, that the instruction was correct.

5. MASTER AND SERVANT (§ 332)—INJURIES TO THIRD PERSONS—ACTIONS—INSTRUCTIONS —INCONSISTENT INSTRUCTIONS.

An instruction that if the automobile was in the chauffeur's charge at the time of the accident, but had been taken out by him at the request of defendant's married daughter, not a member of his household, for her own use, and not on defendant's business, the jury should find for defendant was not inconsistent with the previous instruction so as to warrant the conclusion that the jury disregarded it in finding for plaintiff.

6. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR.

Defendant cannot complain on appeal of an instruction given at his own request.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Hooper P. Winfrey against Samuel Lazarus. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant in this case, with his wife, left their home in St. Louis about the 12th of June, 1908, for a trip to Europe, on the day of the accident, June 25th of that year, being in Germany. Defendant was the owner of an automobile, and he had in his employ as chauffeur one Conley, who was left in charge of the machine, and under pay of the defendant, during the absence of defendant. The machine seems to have been kept at the premises of defendant; Conley not living there, however, but at his own home. The residence of defendant, during the absence of defendant and his wife, was in charge of defendant's sister-in-law; the house servants being left there, and the house apparently being run in the ordinary way. Mrs. Baker was the married daughter of the defendant. While defendant was absent she appears to have stayed a good part of the time at her father's house with her child. She and her husband, however, had their own place of residence in St. Louis, but on the day of the accident, and apparently for some little time before and afterwards, her husband being absent, Mrs. Baker appears to have taken up her residence at her father's house. On the day of the accident, June 25th, she was downtown taking lunch with some friends at a store, and telephoned to her father's house to have the machine sent down and meet her at the store. This message was conveyed from the house to Conley, the chauffeur, also apparently by telephone, whereupon he proceeded to drive the machine down to meet Mrs. Baker. While on the way downtown he ran into the plaintiff's buggy, in which at the time plaintiff was riding, breaking the buggy, throwing plaintiff into the street, and, as he claims, injured him quite severely. He brought suit against the defendant for damages for the injuries sustained, laying them at $15,000. Defendant, after a general denial, pleaded contributory negligence on the part of plaintiff, averring that the automobile mentioned in the petition was operated with all due and proper care to avoid any collision with the vehicle of plaintiff, and that plaintiff could have avoided the accident by the exercise of reasonable care and diligence on his part. The reply was a general denial, and the trial was before the court and jury.

Plaintiff and several of his witnesses testified to the accident, describing the speed of the respective vehicles and the place where the accident occurred; there also being evidence as to the nature and extent of the injuries sustained by the plaintiff. Plaintiff also introduced the deposition of Mrs. Baker, who testified that during the absence of her father and mother in Europe she had lived at her father's house part of the time, going there with her child; her husband being out of town. During the time that she stayed at her father's house, she had used the automobile several times; doesn't remember how often; used it whenever she cared to do so; no one had ever interfered with her use of the machine; her father did not tell her that she could use it if she wished to; used the machine prior to the departure of her father just as she did afterwards; whenever she wanted to use it she used it. The only difference in her use of it after her father left was that she did not use it so often; nothing was said one way or the other in the way of placing any restraint on her use of it. Remembers the occasion of Conley bringing the machine to meet her downtown on the 25th of June, 1908. When he came down and met her, he told her that he had been in an accident with the machine. Mrs. Baker said she was lunching downtown that day with some friends, and asked one of the waiters to telephone out to the house to tell Conley to come down after her, just gave the telephone number to the clerk at the store and told him to give the message to whoever answered the telephone. The chauffeur accordingly came down and met her. Asked who was employed in her father's house as servants at that time, she answered: "Why, I am not sure. I don't know just who it was. I had two girls there just about that time; one left, and then the other one came." Remembered their first names, but not their last names.

The deposition of the defendant had also been taken and was introduced and read in evidence on the part of plaintiff as admissions by defendant against himself. In answer to the question by counsel for plaintiff in his direct examination as to whether his daughter ever used the machine prior to the day of the accident, defendant answered that she did. Asked under what conditions, he said he didn't know. Asked if she used it by herself, he answered: "That I don't know. The machine is her mother's machine; and if you had a daughter you would find out she used what you had." Asked if he knew that his daughter used it, he answered that he had seen his daughter out riding many times in the machine; that she used it "either with her mother or her auntie, or somebody," and he never paid any attention to it; had never objected to her using the machine; did not object to her asking the chauffeur to bring the machine down to her at the store on the day of the accident after he had heard of it; had never told her anything about the use of the machine; never told her "she could or she could not. She has got the habit of picking up what she wants and going off with it." If she would use it he could make no objection to her use of it any time she wanted to, going wherever she wanted; had no objection at all. He further testified that during his absence in Europe, the machine was under the control of Conley, the chauffeur. Conley was not subject to anybody's direction. He had charge of the machine while defendant was gone, and he had told him to go down to the office and get his money every week, and defendant's secretary paid him every week. Asked if Mrs. Baker instructed him to go out, he did not have to go unless he wanted to, he answered, "Well, I guess he would have a mind to." Asked was it the intention that he was to mind Mrs. Baker, he said: "Well, I didn't speak about it at all. I supposed they would run it just like they had always run it, and he would take the machine out." Asked if he would take the machine out on the instructions of the women of the family, he answered that he "supposed so." Defendant was present while this deposition was read on the part of plaintiff and afterwards, being examined as a witness in his own behalf, he testified that Mrs. Baker was not living at his house when he went away; was not then a member of his household. She lived in her own home on Lindell avenue; was married; she and her husband have always kept their own house. When he left for Europe, defendant testified he left the machine in charge of the chauffeur, like he always left it when he went away; nothing was said or done...