Hufft v. Dougherty

TRIMBLE, J. While driving a team of mules upon a public street in the town of Lathrop, plaintiff was met by an automobile which he says was driven at such a high, reckless and dangerous speed, and in such negligent manner that his team became frightened and ran away throwing him out and seriously injuring him. He sues to recover damages. That he was met on the street by the automobile and that his team ran away no one disputes. The automobile was driven by the defendant’s son, a young man about twenty years of age living with his father. The son claims that he and not the father owned the automobile. It is also claimed that certain errore were committed during the trial which will be considered herein. — 377 — The petition alleges that Royce Dougherty, the son, was the agent and servant of the defendant, J. Oscar Dougherty, in operating the automobile and that, in running it upon a public highway in continuous use for public travel, known as Center street in the city of Lathrop, and in approaching plaintiff thereon, said automobile was negligently run at a high, dangerous and unsafe rate of speed, without signal or warning and without checking speed, or stopping said automobile as it approached plaintiff’s team although the operator of the car knew, or by the exercise of care could have known, of the team’s fright, and that by reason of such negligence said team was caused to run away and throw plaintiff out and injure him. Upon the question of the ownership of the automobile, the plaintiff testified that he had a conversation with the father, J. Oscar Dougherty, after the accident in which he admitted that he owned the automobile and that his son was out showing the car. The father prior to this had been selling cars and receiving commissions therefor and the son had been assisting in the work of demonstrating them besides driving the car for pleasure and other purposes. There was testimony that both the father and son had driven this particular car. The father denied having an agency to sell cars at the time of the accident, but would not say he was not trying to sell cars, when asked that question, and admitted that if he had sold any he would have gotten a commission. He denied ownership of the car, but did not known how his son, who was not yet of age and still living at home, had obtained it. A letter written by the son and also one by the father tend to show that the latter was the real owner of the machine. An application to the Secretary of State for registration certificate No. 13453 for 1912, signed by J. Oscar Dougherty, was offered in evidence as tending to show ownership of the car. This application described a former car owned by Dougherty and — 378 — for this reason it was objected to and its admission is relied upon as error. But it was shown that the said defendant never applied for but one license and that was No. 13453 of 1912; that this number was used on the car in question and was on it at the time of the accident. It was permissible to show the ownership of the license number in use on the car as a circumstance showing the car’s ownership. The application for this license was, therefore, admissible in evidence. [Whimster v. Holmes, 177 Mo. App. 130; Motor Vehicle Act, sec. 3; Laws 1911, p. 323.] Plaintiff’s instruction number 1 is attacked on the ground that it assumes that the son was the father’s agent and does not require the jury to find that he was. The instruction read that if the jury found from the evidence certain facts “and that at said time, defendant J. Oscar Dougherty was the owner of a certain automobile and his agent, servant and employee, Royce Dougherty was then driving, running and managing-said automobile, etc. ’ ’ This certainly submitted to the jury the question whether J. Oscar Dougherty owned the automobile. And, if he did own it, then, under the undisputed evidence, the son was his servant running it. [Daily v. Maxwell, 152 Mo. App. 415, 1. c. 426-7.] The disputed question was solely whether the father owned the machine. If he owned it, then the son, in running it, was the father’s agent and there was nothing in the evidence to show otherwise. Under the evidence, the son’s agency follows as a necessary consequence of the-father’s ownership.' When that was found to be the situation, then there remained no question of the son’s agency. Hence, the instruction was not erroneous as applied to the evidence in the case. The instruction, we think, followed the allegations of the petition. It should not be cut up and subdivided into different divisions and then construed as allowing a recovery upon general negligence when the petition charged particular negligence. The instruc — 379 — tion as well as the petition, perhaps, used more verbiage than necessary, but, considered in the entirety, the petition alleged specific charges of negligence and the instruction followed the petition. * It is claimed that plaintiff’s instruction number 3 is erroneous in that it authorizes .a recovery on grounds not stated in the petition. We do not think the instruction is open to this charge. The petition alleged that the place in question was a public highway known as Center street in the city of Lathrop and was in continuous use for public travel for persons and vehicles. This was an allegation that. ‘ the accident was at a place in a public highway much used for travel. ’ ’ The instruction told the jury that at such places the law imposed upon the operator of the automobile the duty to exercise the highest degree, of care that a very careful person would use under like or similar circumstances. It is true the petition did not allege in so many words that there was a failure to exercise such high degree of care, but it alleged that the operator acted negligently, and section 9 of the Motor Vehicle Statute says that a failure to use such high degree of care is negligence. [Laws 1911, p. 330.] Nor does the instruction turn the jury loose and authorize a recovery upon any act of negligence whether specified in the petition or not. The negligence charged was in running at a high rate of speed without signal or warning, and in failing to check or stop when plaintiff’s perilous situation was, or could have been, discovered. Instruction number 2 told the jury what they must find in this regard before plaintiff could recover. It followed the specifications of negligence 'stated in the petition. Now when, in instruction number 3, the jury were told that the law imposed the duty to exercise the highest degree of care of a very prudent person in like or similar circumstances, this clearly would be understood as referring to the acts charged in the petition and specified in instruction number 2. Espe — 380 — eially is this true where there was no evidence of any negligent acts aside from those pleaded in the petition and set forth in said last named instruction number 2. The case is, therefore, unlike the cases of Beave v. St. Louis Transfer Co., 212 Mo. 231 and Conway v. Metropolitan Street Railway, 161 Mo. App. 501, cited by appellants. In both of these cases there was no instruction which followed the petition and specified the negligent acts necessary to be found in order to support a recovery. The petitions in those cases specified the negligent acts and then were immediately followed by instructions which said nothing about the specific acts charged but allowed a recovery for general negligence. With regard to the degree of care required, the instruction may have been inconsistent with other instructions given which defined negligence as the want of ordinary care, but this cannot be deemed reversible error since the inconsistency was in favor of rather than against defendants. With regard to plaintiff’s instruction number 4, the observations hereinbefore made concerning instruction number 2 apply. If the father owned the car, then all the evidence, defendants’ as well as plaintiff’s, showed that the son was, in law, the agent of the father in operating the automobile. The instruction submitted to the jury the questions as to whether the father owned the car and whether he had permitted the son to run and operate it, and if both these things were true, then the law does presume, under the circumstances shown in evidence, that the son was acting as the father’s agent and in the line of his service. The father did not dispute the son’s operation and use of the car. He denied only that he owned it. As the instruction submitted the question of ownership, and there was no dispute as to what was done by the son, nor showing made that he was not in the line of his service, clearly there was no error in giving the instruction. — 381 — The refusal of defendants’ instruction number 2 is complained of. There was no evidence tending to show the mules were a dangerous span given to running away at sight of ordinary objects or otherwise, nor that they ran away because plaintiff jerked them. If there were any other elements of defendants’ ease in the instruction they were fully covered by other given instructions, and this last applies to defendants ’ refused instruction number 6. It was fully covered by defendants’ given instruction number 4. After a careful examination of the record we are unable to perceive any substantial error in the case. As to what were the true facts was for the jury. They have found them in favor of plaintiff and there was substantial evidence to support that finding. We are, therefore, without authority to disturb it or the judgment based thereon. Therefore, it is affirmed. All concur.