Tapscott v. Tyson

177 S.W. 815, 191 Mo. App. 253, 1915 Mo. App. LEXIS 354

• Court: Missouri Court of Appeals
• Decided: June 14, 1915
• Status: Published

Opinion

ELLISON, P. J.

This is an action for damages alleged to have resulted to the plaintiff by reason of the negligence of defendant’s son in driving the defendant’s automobile. The judgment in the , trial court was for the plaintiff in the sum of $2000, being the full amount asked by him in his petition.

It was shown by the evidence in plaintiff’s behalf that defendant, a farmer, was the owner of an automobile, which he kept for the use of himself and family. That his minor son, nineteen years of age, was a member of the family and drove the machine for himself, and also generally did so when any of the family were using it. A young lady acquaintance of the family lived in the same neighborhood and the son frequently escorted her to places in the neighborhood. On the day in question, the son had an engagement with the young lady to take her to church. The arrangement being that he wouíd drive the machine over after her, come back by his home, take in his father and mother and other members of the family and all go to church together. On returning from church, when they got near home, the family got out and walked to the house, while the son proceeded with the young lady to her home. At this time plaintiff, a young unmarried man, and a young lady friend, were a distance up the road, in a one horse buggy, driving in the opposite direction. They saw the machine approaching, and turned out to the side of an embankment and stopped, the young man calling out to stop the machine. But, it seems he was not heard, or, at least, not heeded and the machine ran against a wheel of the buggy, the horse became frightened, the buggy was turned over and plaintiff suffered painful injuries. At this point, considerable space in the record is occupied about what was said and done by the parties, the injury to plaintiff, his horse, harness and buggy, etc., which we need not notice further than to say, there was enough evidence to support a finding of negligence on part of defendant’s son.

The action is based on the theory that the defendant is liable for the negligence of his son. In Daily v. Maxwell, 152 Mo. App. 415, where a minor son asked and obtained the consent of his father to take a party of his young friends ont riding in an automobile, the father kept for himself and his family, we held the father liable for the negligence of the son in colliding with a buggy being driven along a street. That case is relied upon by the plaintiff in this case. It has been cited several times in the courts of other States, It is quoted from- at length and fully approved by the Supreme Court of Kentucky in Stowe v. Morris, 147 Ky. 386. It is doubted in McNeal v. McKain, 33 Okla. 449, 455, and strongly condemned by the Supreme Court of Alabama in Parker v. Wilson, 179 Ala. 361, 60 So. 150; 43 L. R. A. (N. S.), 87, 90, and, though not cited, the rule announced therein is disapproved in Reynolds v. Buck, 127 Iowa, 601, and Doran v. Thomson, 76 N. J. L. 754.

The question arose in the Springfield Court of Appeals and the rule announced in Daily v. Maxwell, was again discussed. [Hays v. Hogan, 180 Mo. App. 237.] On the hearing the court adopted the view of Daily v. Maxwell, but on a motion for rehearing, and further consideration, Judge Sturgis thought it to be erroneous and contrary to certain rulings of the Supreme Court concerning the same principle, and the case was thereupon certified to that court and is now pending there for final determination, which will doubtless be had before this case is reached in the trial court to which we have concluded to remand it, on the ground following.

The petition charges injury to plaintiff personally and to his property, the combined damage being two thousand dollars, and the verdict of the jury was for that sum. The allegation is in these words: “That by reason of the carelessness and negligence aforesaid, plaintiff sutsained damages as follows: The horse driven by this plaintiff was seriously cut, bruised and ruined, that the vehicle in which plaintiff was driving was destroyed together with the harness with which said horse was attached to said vehicle and that the-clothes of this plaintiff were torn from him, soiled and ruined, and that Ms watch was broken and ruined. That by reason of said carelessness and negligence plaintiff suffered great physical injuries and lost much time from work; that he has sustained a serious and permanent injury to his right arm and has been caused to suffer much pain and mental anguish by reason of the premises. . . . Wherefore, the premises considered plaintiff prays judgment in actual damages in the sum of two thousand ($2000) dollars and for his costs in this action expended.”

After the evidence was heard, including the injury to the horse and buggy and the destruction of the harness, the trial court ruled that there was no evidence of the value of the property thus injured and destroyed, or of the amount in which it was damaged, and therefore, by an instruction, excluded that part of the damages from the consideration of the jury, yet there was a verdict and judgment for the amount of the claim, including that part of it. Plaintiff’s total damages were $2000, made up in great part, by the severe injury shown to have been inflicted upon the horse, the damage shown to the buggy and the destruction of the harness. By omitting that damage, whatever it was, plaintiff’s total originally claimed was necessarily reduced. Yet a verdict and judgment were rendered for the full amount. That is to say, he has been allowed Ms full claim when only a part of it is proven.

We have been cited to Burns v. Wilson, 1 Mo. App. 179, where the full amount claimed was $1200. Of this sum $300 was for loss of services, physicians bills, etc. The trial court, by instruction, withdrew that part of the claim, yet the jury allowed the full amount and the judgment was therefore reversed. - The. only difference in that- case and this is, that there the sum unproven was named, while here it is not. But it is just as specifically alleged and proven to' he a part of the claim, as if a specific amount had been named.

The judgment is reversed and the cause remanded.

All concur.