Wurth v. Wurth, 29928

• Decision Date: 06 May 1958
• Docket Number: No. 29928,29928
• Citation: 313 S.W.2d 161
• Parties: Marian WURTH, by Harry Gershenson, her Next Friend (Plaintiff), Appellant, v. John S. WURTH (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 161

313 S.W.2d 161

Marian WURTH, by Harry Gershenson, her Next Friend (Plaintiff), Appellant, v. John S. WURTH (Defendant), Respondent.

No. 29928.

St. Louis Court of Appeals, Missouri.

May 6, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

June 5, 1958.

Harry Gershenson, St. Louis, for appellant.

Rene J. Lusser, Lusser, Morris & Burns, St. Louis, for respondent.

SAMUEL A. DEW, Special Commissioner.

The appellant, a girl 19 years of age and unmarried, brought this action against respondent, her father, in whose home she was living. She sued for damages because of personal injuries received by her while a passenger in respondent's automobile which he was operating. She received a verdict and judgment for $5,700. Respondent thereafter duly filed his motion to set aside the verdict and judgment and to enter judgment in his favor in accordance with his motion for a directed verdict theretofore filed at the close of all the evidence. The after-trial motion was sustained and accordingly the verdict and judgment were set aside and judgment entered for the respondent. This appeal was taken from the order of the court so made and from the judgment so entered.

For convenience and clarity the appellant and respondent will hereinafter be referred to, respectively, as the plaintiff and the defendant as they were in the trial court.

The petition charged the defendant with negligently causing and permitting the automobile operated by him, and in which plaintiff was a passenger, to skid and to run into the curb near Beck Avenue and Kingshighway in St. Louis, Missouri, on February 9, 1953, and to throw plaintiff to the sidewalk, resulting in serious injuries to the plaintiff, as pleaded. The specific negligence pleaded was excess speed (over 35 miles per hour), under the circumstances; failure to keep the automobile under control; and reckless and wanton operation of the car under the existing conditions. The answer admitted that plaintiff was a passenger in defendant's automobile while being operated by defendant at the time and place alleged, and denied all other allegations of the petition. The answer affirmatively pleaded that on February 9, 1953, plaintiff, daughter of the defendant, was under 21 years of age and an unemancipated minor and, therefore, did not have the legal capacity to sue the defendant. The answer prayed that the court require a reply, but none was filed. However, the case was tried as if the new matter pleaded in the answer were duly denied.

In addition to the evidence pertaining to the personal injuries sustained and the hospital and medical expenses incurred and paid by the plaintiff, her evidence was in substance that the accident happened on January 9, 1953 (instead of February 9, 1953); that the plaintiff was born in St. Louis, Missouri, on May 24, 1933; that when the suit filed on April 2, 1953, plaintiff as not yet 21 years of age; that she had never been married and had lived with her parents at the time of the accident and was still residing with them at the time of trial; that for more than a year prior to January 9, 1953, she had been employed at the office of the Telephone Company on Grand Avenue in St. Louis, and that it was the daily custom of her father, the defendant, to take her each morning in his automobile to her place of employment; that this was done for her accomodation; that defendant would then return home and later drive to his own place of employment. Plaintiff testified that on the date in question there was snow and some ice in patches on the streets on the way to plaintiff's destination; that defendant was driving north on Kingshighway about 25 miles per hour and turned east on Beck Avenue; that he then slowed down to about 15 or 20 miles per hour as he crossed some railroad tracks, and then resumed his former speed for about 200 or 250 feet; that plaintiff, seeing some glistening ice on the street ahead, called to her father: 'Dad, you had better slow down. Look, it's icy here,' whereupon defendant nodded his head, but continued his speed. She said the car then began to skid, turned around several times, slid to the north side of Beck Street and hit a light standard. The car doors flew open and plaintiff was thrown out.

Being recalled to the stand, plaintiff testified that she was earning $50 per week at her job when she was injured; that she used her earnings to pay board at her father's house and to pay her bills. The defendant offered no evidence.

At the close of the testimony, as stated, defendant moved for a directed verdict, which motion was overruled. One of the grounds assigned therein was that 'Plaintiff, having been a minor at the time of the occurrence alleged in plaintiff's petition, and at the time of the commencement of the suit, cannot, under the law of the State of Missouri, recover against the defendant, said defendant then being the father of the plaintiff.' The after-trial motion filed by the defendant to set aside the verdict and judgment and for judgment for defendant in accordance with his motion for directed verdict, contained several grounds, among which were the following, on which the court sustained the motion: '5. Because the verdict is for the wrong party and should have been for the defendant, John S. Wurth, and against plaintiff, Marian Wurth. 6. Because under the undisputed evidence the plaintiff at the time of the occurrence on January 9, 1953, was then a minor under the age of 21 years. * * * 9. Because, under Instruction No. 1 given to the jury at the request of the plaintiff, the jury was required to find that plaintiff on January 9, 1953, was a minor who had been completely emancipated by her parents, as to which said issue there was a failure of proof under the law of the State of Missouri. 10. Because plaintiff failed to sustain by competent, credible and sufficient evidence that plaintiff, on January 9, 1953, was then a completely emancipated minor. * * *'

Instruction No. 1, referred to in the after-trial motion, directed a verdict for plaintiff under the hypothesis of facts therein stated, and opened with the words: 'The Court instructs the jury that if you find and believe from the evidence that on or about January 9, 1953, plaintiff was a minor who had been completely emancipated by her parents, if you so find, * * *.' Instruction No. 5, thereafter given at the request of defendant, on the same subject, stated, in substance, that under the law of Missouri, a minor cannot sue his parent for personal injuries sustained through the negligence of the parent unless the minor at the time was completely emancipated; that complete emancipation of a minor means an entire surrender of all rights by the parent to the care, custody and earnings of the minor, and a renunciation by the parent of parental duties and the destruction of the parental relations; that the burden was upon the plaintiff to prove by the greater weight of the credible evidence that she was completely emancipated at the time in question; that if the jury found that such had not been proved by the greater weight of the credible evidence, the verdict should be for defendant. At the trial the defendant objected to the overruling of his motion for a directed verdict and to the giving of plaintiff's instructions. Plaintiff objected to the giving of defendant's instructions.

Plaintiff's Points I, II, III and IV may be merged into one and considered together as a single charge that the court erred in finding the verdict was for the wrong party despite the undisputed evidence and the verdict, and in finding that plaintiff had failed to prove her complete emancipation by competent, credible and sufficient evidence. Plaintiff's Points V, VI and VII are conclusions presented to support such charge, asserting that the jury's verdict determined the issue of emancipation; that there was an implied...