Wooldridge v. Scott County Milling Co.

• Decision Date: 01 March 1937
• Docket Number: 5759
• Parties: Harold Wooldridge, by F. S. Wooldridge, his father and next Friend and Guardian and Curator, Respondent,
• Court: Missouri Court of Appeals

102 S.W.2d 958

Harold Wooldridge, by F. S. Wooldridge, his father and next Friend and Guardian and Curator, Respondent, v. Scott County Milling Company, a corporation, Allen Wade and Fred L. Sturgeon, Appellants

No. 5759

Court of Appeals of Missouri

March 1, 1937

Appeal from the Circuit Court of Stoddard County. Honorable J. V Billings, Judge.

Affirmed.

Bailey & Bailey of Sikeston and Oliver & Oliver of Cape Girardeau for Appellant Scott County Milling Company.

Bishop & Claiborne and George E. Heneghan of St. Louis, of Counsel for Scott County Milling Co.

Stephen Barton, of Benton, and Blanton & Montgomery, of Sikeston, for Respondent.

Robert J. Smith, Judge. Allen, P. J. Concurs. Fulbright, J. Not Sitting.

OPINION

Robert J. Smith, J.

This is a suit by Harold Wooldridge, a minor, to recover damages for personal injuries suffered by him when a school bus in which he was a passenger was sideswiped by a ten-ton trailer truck. The accident happened when the truck attempted to pass around the school bus while both were traveling in the same direction going down a long hill on Highway No. 70, near Fredericktown, Missouri.

The suit is against three defendants, as follows:

(1) Allen Wade, who was driving the truck, (2) Fred Sturgeon who owned and operated this trucking service, and (3) the Scott County Milling Company, a corporation, whose products had been transported by the truck from the Scott County Hilling Company's Oran, Missouri plant, to its retail trade in the Missouri Ozarks. Judgment went against all three defendants and all have appealed, but only the milling company is contesting the matter in this court. Hereinafter we shall refer to the Scott County Milling Company as the Appellant.

The suit as originally filed was in one count against the three defendants, and was brought by the minor through F. S Wooldridge, next Friend, appointed by the clerk of the Circuit Court of Scott County.

This first petition was amended and in the amended petition there were two counts. Each count of the amended petition was then amended by interlineation, and this amendment was designated by the parties as "Fly Interlineation".

This "Fly Interlineation" was an allegation of the appointment by the Probate Court of F. S. Wooldridge as guardian and curator and that suit was brought by him as such guardian and curator. This amendment is shown in the second count of the amended petition, and is the second paragraph thereof, which is set off by parentheses. More will be said about this amendment later.

At the close of the case, just before the issues were finally submitted to the jury, the plaintiff elected to stand on the second count of his amended petition. This petition is rather long but we quote it, caption and signature omitted, as follows:

"Comes now the plaintiff and for a second count of his first amended petition says that he is a minor, of the age of nineteen years; that on the 12th day of June, 1935, his father, F. S. Wooldridge, was duly appointed by the. Clerk of the Circuit Court of Scott County, Missouri, in vacation, as his next friend for the purpose of instituting and maintaining this action; that the said F. S. Wooldridge has accepted said appointment and duly qualified and acting next friend of the plaintiff for said purpose.

"(Plaintiff further says that on or about the 28th day of May, 1935, the said F. S. Wooldridge was duly appointed by the Probate Court of Scott County, Missouri, as guardian and curator of the person and estate of this plaintiff, and that the said F. S. Wooldridge accepted said appointment and qualified as said guardian and curator and that plaintiff prosecutes this suit by his said father, F. S. Wooldridge, his said next friend and guardian and curator, as aforesaid.)

"Plaintiff further says that the defendant Scott County Milling Company is a corporation of the State of Missouri, with its office and principal place of "business at Sikeston, Scott County, Missouri.

"Plaintiff further states that at all times material to this cause the defendant F. L Sturgeon was the operator of three motor vehicles and two motor tractors, each of said vehicles having a freight-carrying capacity of more than one and one-half tons, and says that said defendant had not at any time material to this cause secured from the Public Service Commission of the State of Missouri any permit to operate said vehicles or tractors, or either of them, either as a contract hauler or as a common carrier, as defined by the statutes of this state, and had not complied with any of the provision of Article VIII of Chapter 33, Revised Statutes of Missouri for 1929, and amendments thereto, and had not complied with any of the rules and regulations as amended of the Public Service Commission of the State of Missouri prescribed in pursuance of said statutes with reference to the transportation of property for hire over the highways of this state, and particularly said defendant carrier had not complied with sections 5270 and 5271 of said statutes, nor with rules Nos. 5, 20 and 69 of said Public Service Commission, requiring said defendant carrier to apply for and secure a contract hauler's permit and to operate thereunder and in accordance therewith, and had not complied with section 5273 and rule 10 of said Commission requiring said defendant carrier to secure and file with said Commission a liability insurance policy or bond to protect the interests of the public or to furnish proof of the defendant carrier's financial ability to properly protect the interests of the public. And plaintiff says that said defendant carrier at all times material to this cause was insolvent, and still is insolvent, and is unable to protect the interests of the public, or pay any compensation for injuries to persons, including the plaintiff herein, or to pay losses or damages to property arising out of negligent operation of said defendant carrier's business of transporting freight as set out herein.

"Plaintiff further says that said defendant carrier had not complied with section 5274, nor rules numbered 62 and 63 of said Commission prescribing safety rules and regulations and commanding compliance therewith by carriers of freight for hire over the highways of this state; and had not complied with said section 5274 or rules 27 and 36 as amended of said Commission, requiring distinctive markings, including weights of vehicles and tractors and a contract hauler's annual license card, issued by said Commission, to be attached to each vehicle, tractor, trailer or semitrailer used in carrying on such business of carrying freight for hire, and says that said defendant carrier was not authorized by law to use said vehicles or tractors or either of them, in the transportation of property for hire over the highways of this state, and that his act in so doing, as herein alleged, was wrongful and unlawful and contrary to and in violation of the rules and regulations of said Public Service Commission, all of which said facts were well known to and understood by the defendant Scott County Milling Company.

"Plaintiff further says that notwithstanding such facts and that the defendant Scott County killing Company had full knowledge thereof, as hereinabove set out and pleaded, the said Milling Company engaged and employed the defendants F. L. Sturgeon and Allen Wade, and each of them, to use and operate said vehicle and tractors over the highways of this state in the transportation for hire of merchandise and property of said defendant Milling Company, and particularly to haul a load of the manufactured products of said Milling Company from Cran, Missouri, to Salem, Missouri, and other towns, contrary to and in violation of the laws of this state and the rules and regulations of the Public Service Commission of said state, and the defendant Scott County Milling Company procured, aided and abetted said defendants F. L. Sturgeon and Allen Wade, and each of them, in said violation of said laws and said rules and regulations of the State of Missouri, and in failing to comply therewith, and says that by reason of said unlawful acts and conduct of said Milling Company it became and is liable for all damages occasioned by the negligence of said defendants F. L. Sturgeon and Allen Wade, or either of them, while so engaged in said unlawful acts and conduct, and plaintiff further says that the collision and injuries and damages hereinafter set out and complained of were caused by the carelessness and negligence of the defendants F. L. Sturgeon and Allen Wade and the Scott County Milling Company while they were engaged in said unlawful acts and conduct, as aforesaid, and while the defendants F. L, Sturgeon and Allen Wade were being aided, abetted and assisted and procured by the defendant Scott County Milling Company so to do.

"Plaintiff, for his cause of action against the defendants, states that on or about the 17th day of May, 1935, he was riding as a guest and passenger in a school bus being operated and over Missouri Highway No. 70, between Lake Killarney and Fredericktown, Missouri, but that plaintiff had no control whatever over the operation of said school bus.

"Plaintiff further says that at said time and place the defendant Allen Wade was driving one of defendant Sturgeon's aforesaid tractors and motor vehicles, as above Stated, in an easterly direction along said highway, overtaking the school bus in which plaintiff was riding, and that the said Allen Wade was at said time and place the agent, servant, driver and employe of his codefendant F. L. Sturgeon, and was then and there in the course of his employment as his said agent and servant and was under his direction and control, and was at said time and place by procurement of the Scott...