Irwin v. McDougal

*655 COX, P. J. Action for damages for injuries sustained in an automobile accident. Plaintiff recovered $2000 and defendants appealed. Tbe evidence shows that on April 13, 1923, the two defendants, who are mother and son, the plaintiff and her husband and Mr. and Mrs. Hess were all going from Webb City, Missouri, to Springfield, Missouri, to attend a masonic entertainment. When they started, the two McDougals, the defendants herein, rode in their own car with Mr. Arch McDougal driving and were in the lead. Which one of the McDougals owned this car does not clearly appear in this record but counsel concede in this court that the car belonged to Arch McDougal. The plaintiff and her husband and Mr. and Mrs. Hess followed in a car belonging to Mr. Hess and driven by him. They traveled that way for a considerable distance when-Mr. McDougal stopped his car and waited until the Hess car came up. Up to this time it appears that plaintiff and her husband were the guests of Mr. Hess and were riding in his car. When the Hess car caught up with Mr. Arch McDougal, he then suggested that plaintiff and Mrs. Hess change from the Hess car to the McDougal car and his mother would drive it the remainder of the way to Springfield and he would ride in the Hess car. This change was made as suggested by him and from that point until the accident Mrs. McDougal drove the Mc-Dougal car with the ladies in it and Mr. McDougal rode in the Hess car. Some time after the change the Mc-Dougal car, which was then in the lead and driven by Mrs. McDougal, came to a. cross road and she stopped to learn which road to take. The men then passed her. The plaintiff testified that after Mrs. McDougal got her ear started again, it zig-zagged, going first to one side of the road, then to the other side for a short distance, then it straightened out and was running at a rapid rate of *656 speed for some distance and the next she knew she became conscious some two or three weeks later in a hospital in Springfield. It was shown by other witnesses that the road at the place of the accident was a good graveled road with a slight downward slope and that the car was going at a rapid rate of speed when it left the road and ran’ against a bank at the side of the road and turned over. As it turned over, plaintiff and Mrs. Pless, who were riding in the rear seat, were thrown out of the car and away from it a distance of twenty or thirty feet and both were rendered unconscious. Mrs. Hess soon revived but plaintiff was severely injured and did not recover consciousness for two or three weeks afterward. The foregoing are the material facts and are practically undisputed except as to the speed at which the McDougal car was traveling at the time of the accident. The defendant’s witnesses contend that at no time did this car travel to exceed twenty-five miles per hour while some of plaintiff’s witnesses estimated the speed of the car at the time of the accident at from forty to fifty miles per hour. The case went to the jury on one ground of negligence only and that was the dangerous rate of speed. On the speed of the car the witnesses differed and one assignment of error is based on the ground that the court permitted witnesses for plaintiff' to testify as to the rate of speed the automobile was traveling when the same witnesses testified to a state of facts which showed that they were not qualified to judge the speed of the car. We think the objections to some of this testimony should have been sustained but do not regard the error as reversible or material. If we omit all the testimony of plaintiff’s witnesses as to the speed at which the car was moving at the time of the accident, yet the physical'facts testified to by witnesses for both plaintiff and defendants and about which there is no dispute show beyond the-possibility of a doubt that the eqr was mov *657 ing at a dangerous rate of speed at the time of the accident. These physical facts are that the car left the beaten path of the road, ran against the bank at the side of the road, turned over and stopped. As it turned over it threw plaintiff and Mrs. Hess, who were riding in the rear seat of the car, out of the car and a distance of twenty or thirty feet away. These facts show conclusively that the speed of the car was dangerous and what any witness may have testified in relation to the speed of the car became wholly immaterial. The fact that an automobile when striking an obstruction would throw its occupants such a distance establishes a dangerous rate of speed beyond question and also warrants a finding that the dangerous rate of speed was the proximate cause of the injury. It is insisted that the separate demurrer to the testimony filed by Arch McDougal should have been sustained because he was not driving' the car nor present when the accident occurred and that there is no evidence to show that his mother, who was driving the car, was his agent and engaged at the time in some business for him. We are cited to a number of cases of which Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, is a type, which hold that in order to fasten liability upon a party for an injury inflicted in his absence by the negligence of the driver of an automobile, it must be shown that the driver was his agent and engaged at the time in the performance of a duty for the principal. These cases correctly state the law but our judgment is that the facts in this case clearly bring it within the rule there stated. While all these parties were going to Springfield for their own pleasure, it was not a common enterprise. No agreement to share expenses or divide responsibility in any way was shown. The plaintiff and her husband were riding with Mr. Hess in a car owned and driven by him. If there were any arrangements between Mr. Hess and plaintiff and her husband other than that they were the guests of Mr. Hess, it does not appear. Certain it is that *658 up to the time that the ladies changed from the Hess' car to the McDougal car, there was no relation of any kind existing between the McDougals and plaintiff. When, however, defendant Arch McDougal, on his initiative, asked the plaintiff and Mrs. Hess to change cars and ride in the car to be driven thenceforward by his mother, the plaintiff, when she accepted his invitation, became his guest and his mother became his agent to convey plaintiff to Springfield for him. To our mind, it would be difficult to show an agency which would render the principal liable for the negligence of his agent more clearly than these facts show it in this case. It is also insisted that the evidence does not establish the cause of action pleaded in the petition, in that the petition alleges joint control of the automobile by both defendants while the proof shows sole control by Mrs. Arch McDougal at the time of the accident. We do not regard this as a fatal variance. The negligence pleaded is the negligence of Mrs. McDougal and the only purpose of the allegation of joint control by her and her son, Arch McDougal, was to allege that he was responsible for her negligence. We think it would have been better pleading to have alleged the facts of agency and his responsibility for the mother’s negligence upon that theory in direct terms but we do not regard this as a case showing a total failure of proof. It seems to us to be rather a variance, only, which has worked no injury and we rule this point against appellants. It is contended that plaintiff was guilty of contributory negligence in not protesting to Mrs. McDougal against the speed at which she was driving. It is impossible for courts to lay down fixed rules by which to determine just when and under what, circumstances an automobile should be driven from the rear seat. Each case must rest upon its own facts. The courts all agree, however, that a passenger or guest in an automobile must use ordinary care for his own safety and when the exercise of such care requires that he call the atten *659 tion of the driver to approaching danger, he must do it or be open to the charge of contributory negligence. [3 Elliott on Railroads (3 Ed.), sec. 1670.] Contributory negligence is not pleaded in the answer in this case and for that reason is nqt available to defendants unless plaintiff’s evidence shows her to have been guilty of contributory negligence as a matter of law. [State ex rel. Savings Trust Co. v. Hollen, 165 Mo. App. 422, 146 S. W. 1171; Byerley v. Metropolitan Street Ry. Co., 172 Mo. App. 470, 158 S. W. 413; O’Neill v. Citv of St. Louis, 292 Mo. 656, 661, 239 S. W. 94.] Plaintiff testified in this case that the car was moving at a pretty good rate of speed but she did not know how fast because she never owned a car or drove one and never rode in one much. We do not think her evidence here showed she was guilty of contributory negligence as a matter of law and we rule that point against appellants. Plaintiff’s instruction No. 1 is assailed on the ground that it assumes that Mrs. Arch McDougal was the agent of her son in driving the automobile and that the jury were not required to find that the mother was driving the car in the furtherance of any business for him at the time of the accident. The instruction is open to these objections but we do not regard the error as reversible for the reason that these facts are clearly shown by undisputed evidence. The plaintiff testified: “Mr. MeDougal and his mother were in the lead in their car, so we drove that way until about this side of Mt. Vernon and Mr. McDougal stopped his car and when our car drove up he suggested that Mrs. Hess and I get in the car with his mother and he would get in the car with Mr. Hess and Mr. Irwin and we did. Then we started on. He said his mother would do the driving and asked us to make the change.” Relative to the same matter, defendant Arch McDougal testified: “I did not mention to my mother about changing passengers. When the Hess car came up I asked Mr. Hess how he was *660 getting along — if he was getting tired — and he said a ‘little bit,’ and I told the women, Mrs. Irwin and Mrs. Hess, that they could ride with mother and I would relieve Mr. Hess; that our car was an easier rider and if it rained, they would have good curtains.” There is no substantial difference in the testimony of plaintiff and defendant Arch McDougal in detailing the facts about plaintiff changing from the Hess car to the McDougal car. Arch McDougal had testified that he drove their car from the start until the time that the change in cars was made by plaintiff. He was in control of the Mc-Dougal car up to that time and then he states that without saying anything to his mother about changing passengers he arranged for the change. By that change his mother became the driver of the car which he had driven up to that time. It was all done at his suggestion and the plaintiff, on his invitation, became a passenger in the car to be driven thenceforward by his mother. An instruction to the jury should never assume as true a fact in issue but it is not always reversible error to do so. If it should appear that the assumed fact has been clearly established by uncontradicted testimony and that no injury could likely have resulted from the assumption of such fact as true in the instruction of the court to the jury, then the error is not fatal. [Barr et al. v. Armstrong, 56 Mo. 577, 589; Cardwell v. Stephens, 57 Mo. 589, 595; Sotebier v. St. Louis Transit Co., 203 Mo. 702, 714, 102 S. W. 651; Davidson v. St. Louis Transit Co., 211 Mo. 320, 355-59, 109 S. W. 583.; Midway Bank & Trust Co. v. Davis, 288 Mo. 563, 581, 233 S. W. 406; Argeropoulas v. K. C. Ry. Co., 201 Mo. App. 287, 302-3; 211 S. W. 687; Flach v. Ball, 209 Mo. App. 389, 402, 240 S. W. 465.] The evidence on the part of both plaintiff and'defendants conclusively shows that in driving the car Mrs. McDougal was the’ agent of Arch McDougal and doing his bidding. The assumption of these facts as true in’ an instruction to the jury could not have possibly harmed defendants. The error was, therefore, not reversible. *661 We are not unmindful of the authorities such as Lafferty v. Casualty Co., 287 Mo. 555, 229 S. W. 750, and State ex rel. Hartford Life Ins. Co., v. Trimble, 298 Mo. 418, 250 S. W. 393, which hold that it is error to assume an issuable fact as true even though the evidence to support it be uncontradicted, but do not think we are in conflict with them under the facts in this case. The instructions authorized the jury in assessing damages to include bills for medical attention and hospital services and this is assigned as error. . On that point appellants are correct. The Married Woman’s Act, which authorizes her to contract as a feme sole and makes her separate earnings her own property, does not change the common-law rule by which the husband is primarily liable for the support of his wife which includes medical attention and hospital service. Had plaintiff paid these bills, she could recover them in this action. [Tinkle v. St. Louis S. F. Ry. Co., 212 Mo. 445, 471-72, 110 S. W. 1086.] There was no evidence in this case, however, to show that the plaintiff paid, or incurred personal liability for, the medical and hospital bills made necessary by her injury. In the absence of such a showing the liability for those items rested primarily upon her husband and the right of action to recover therefor was in him and not in the plaintiff. [Womach v. City of St. Joseph, 201 Mo. 467, 100 S. W. 443; Twedell v. City of St. Joseph, 167 Mo. App. 547, 152 S. W. 432; Flintjir v. Kansas City, 204 S. W. 951.] The bill for medical attention in this case was $370 and the hospital bill was $270, making a total of $640 that we assume was included in the damages assessed. This was erroneous but since the amount is clearly ascertainable and there is nothing to indicate that the inclusion of these items in the instructions could have influenced the jury in determining the main issue of the right of plaintiff to recover any damages, this error can be cured by remitter. *662 The statutes of this State, sections 1276 and 1513, Revised Statutes 1919, provide that a judgment shall not be reversed unless the errors committed in the trial have operated to the prejudice of the losing party. In this case, we think the petition and the instructions to the jury could have been in better form but the undisputed testimony furnished partly by defendants, and the physical facts, which are also undisputed, make such a clear case of the agency of Mrs. McDougal for her son, Arch McDougal, and her negligence in driving the car at a dangerous rate of speed that we are convinced that the verdict could not have been otherwise than it was if no error had'been committed at the trial and we therefore hold that such errors as were committed on the general issue were harmless. As already suggested, the error in submitting the medical attention and hospital services as elements of damage may be cured remitter. If plaintiff will, within ten days, remit the sum of $610, the judgment will be affirmed for the balance of $1360. If remitter is not entered, the judgment will be reversed and the cause remanded. Bradley and Bailey, JJ., concur.