Wrightsman v. Glidewell

• Decision Date: 11 March 1922
• Citation: 239 S.W. 574,210 Mo.App. 367
• Parties: EDWARD WRIGHTSMAN, by Next Friend, Respondent, v. E. B. GLIDEWELL, Appellant
• Court: Missouri Court of Appeals

239 S.W. 574

210 Mo.App. 367

EDWARD WRIGHTSMAN, by Next Friend, Respondent, v. E. B. GLIDEWELL, Appellant

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED.

Judgment affirmed.

Hamlin & Hamlin for appellant.

(1) The evidence upon the part of the plaintiff in chief tended to establish the following facts: First, that the car belonged to the defendant or at least bore his name and business, and was in possession of one of his employees at the time it struck and injured the boy. Those facts made a prima-facie case for the plaintiff as the jury had a right to indulge in the presumption, because Ellis being in charge of the car was acting within the scope of his employment, but like all presumptions in a case, take flight upon the appearance of the evidence of the real facts. In this case the positive proof showed that Ellis was not on business for his master nor within the scope of his employment at the time the car injured the boy, therefore the defendant cannot be held liable. Guthrie v. Holmes, 272 Mo. 215. (2) "All the authorities are in accord in holding that in an action based on the negligent running of an automobile the owner of the car who was not present at the infliction of the injury cannot be held liable except it be shown that the person in charge not only was the agent or servant of the owner, but also was engaged at the time in the business of his service. Evans v. Automobile Co., 121 Mo.App 266; Lotz v. Hanlon, 217 Pa. 339; Slater v Thresher Co., 107 N.W. 133; Patterson v. Kates, 152 F. 481; Reynolds v. Buck, 103 N.W. 946; Clark v. Buckmobile Co., 94 N.Y.S. 771; Howe v. Leighton, 75 A. 102; Jones v. Hoge, 92 P. 433; Lewis v. Amorous, 59 S.E. 338.

Patterson & Page for respondent.

The instruction in the nature of a demurrer to the evidence offered by the defendant at the close of all the evidence was properly overruled. Calhoun v. Mining Co., 202 Mo.App. 546, 571; Burger v. Mortor Co., 120 P. 519, 520; Goff v. Dairy Co., 103 S.E. 58, 59; Reynolds v. Denholm, 100 N.E. 1006; Steffen v. McNaughton, 124 N.W. 1016, 1018.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--Plaintiff, a boy thirteen years old, sued by next friend to recover for injuries received by being struck by a Ford truck owned by defendant and driven at the time by his agent. The cause was tried before the court and a jury, and resulted in a verdict and judgment for plaintiff in the sum of $ 1500 from which defendant appealed.

The charging part of plaintiff's petition is as follows: "That on the said 17th day of June, 1919, the plaintiff, Edward Wrightsman, was traveling northward upon and along the National Boulevard, between Chestnut and Center streets, and was riding a bicycle along said highway, which is one of the public thoroughfares of the said City of Springfield, and which is much used for travel by the public. That at the same time the defendant, his agent, servant and employee, was operating his automobile truck upon and along Center street, and was approaching the National Boulevard, on which plaintiff was traveling, from the east. That defendant, his agent, servant and employee, was operating and driving said automobile truck along said Center street at a dangerous, reckless and negligent rate of speed. That plaintiff at the same time was at the east curb of said National Boulevard at a point about twenty feet south of the intersection of Center street therewith, and was in the act of dismounting from his bicycle on which he had been riding. Plaintiff further states that while plaintiff was in the position as aforesaid, and while in the exercise of due and reasonable care for his own safety and security, the defendant, his agent and employee, in charge and control of said automobile truck, recklessly, carelessly, negligently and unlawfully operated said automobile truck at a dangerous, reckless, negligent and careless rate of speed, and while so doing, attempted to turn said automobile truck south on said National Boulevard, and in so attempting to turn said automobile truck into and upon said National Boulevard, because of the reckless, negligent and careless and unlawful rate of speed at which the same was being driven, defendant, his agent, servant and employee, in charge and control of said automobile truck, lost control of the same, and recklessly, negligently, carelessly and unlawfully caused the same to run upon and over plaintiff, thereby injuring him as herein set forth." The answer is a general denial.

Error is assigned upon the following grounds: (1) Because the court refused to direct a verdict for defendant; (2) because of the giving and refusing of certain instructions.

The first assignment is bottomed upon two propositions. First, that defendant's employee who was driving the truck at the time was not within the scope of his employment. Second, that plaintiff's injury was due to an accident for which no one was responsible. In view of the first assignment a somewhat detailed statement will be required.

Defendant conducted a tire business at 407 West Walnut street in the city of Springfield, and resided a little more than two miles distant from his place of business. The truck was owned by defendant and during the day it was kept at his place of business and used in connection therewith, and at night was kept at defendant's residence. Defendant's son, a young married man, and defendant's nephew, Tom Ellis, a young man, worked for defendant at his place of business, and Ellis roomed and boarded at defendant's home. Defendant paid Ellis $ 6 per week and his board. Defendant stated that Ellis' wage was $ 12 per week, but that he always deducted $ 6, and turned that amount over to his wife for the board and lodging. Defendant's son Paul resided near defendant, and the truck was used of mornings to convey defendant, his son, and Ellis to place of business, and then at noon back home for dinner and return, and at night to return home in, and was generally driven by defendant's son. Defendant's home was a short distance beyond his son's home, measured from the place of business. Defendant frequently had lunch down town, but his son and Ellis usually went home.

On June 17, 1919, defendant's son and Ellis went home for dinner, Paul driving and defendant remained down town. Paul took dinner that day at his mother-in-law's who lived near by. When they reached the mother-in-law's place Paul got out. Ellis drove the truck on to defendant's home. On that day defendant's son-in-law, Kellogg, took dinner at defendant's. Kellogg worked at the United Iron Works four blocks south of defendant's home. After the noon meal Ellis and Kellogg got in the truck, Ellis driving, and drove west on Center street till the place was reached where Paul was. Ellis expected to pick up Paul and the three would ride in the truck west to the boulevard, and thence south to the street leading east to the United Iron Works, and there Kellogg would get out, and Paul and Ellis go on to their work. Paul, however, had not finished his dinner, and Ellis says that Kellogg then asked him to take him on to the United Iron Works. Ellis says that he then started to take Kellogg to the United Iron Works with the intention of returning for Paul, and that they then would go on to their work. It was then about 12:45 and Ellis and Paul were due back at work at 1 o'clock. Unless they turned around the route to the United Iron Works from the place they then were, was west on Center to the National Boulevard, thence south some four blocks, then east a block.

The evidence tends to show that Ellis was driving about twenty-five miles per hour as he approached the boulevard, and that in attempting to make the turn south he lost control of the car, and instead of going south after the turn the car turned east and ran against the east curb, and south down the curb and partly on the parkway, and struck and ran over plaintiff who was then on a bicycle at or against the curb twenty or twenty-five feet south of Center street. Plaintiff had apprehended danger and was in the act of dismounting from the bicycle at the time he was run over. He was going north on his way to school from his noon lunch at home, and scenting danger he attempted to dismount and had his right foot on the parkway when he was struck. After the truck turned east and struck the east curb and ran south over plaintiff, it then bounded off into the roadway and ran west across the boulevard to the west curb, and bounded back some four or five feet where it came to a standstill.

It appears in evidence that Kellogg had on prior occasions ridden from defendant's home in this truck with defendant, Paul and Ellis over this same route to the boulevard thence south to the intersecting street leading east to the United Iron Works and would there get out, and the truck would go on to defendant's place of business. If Ellis was on his way to work when plaintiff was struck then he was within the scope of the contract of employment disclosed here, but if he was on a mission of his own not connected with his contract of employment then defendant is not liable. [Calhoon v. Mining Co., 202 Mo.App. 564, 209 S.W. 318, and cases there cited.] Defendant's son testified that: "Tom Ellis boarded with my father and was getting his board as part of his wages, he was getting the service of riding to and from his work as part of his pay and that was part of my pay." This witness on cross-examination stated that he did not hear the contract between Ellis and defendant. Ellis and defendant say that the matter of transportation to and from work was not a part of the agreement between defendant and Ellis. It was not...