123 Mo. App. 204 | Mo. Ct. App. | 1907
The action was commenced before a justice of the peace and in due course was appealed to the circuit court, where on a trial de novo plaintiff recovered a judgment for eighty-five dollars, from which defendant duly appealed. During the trial, to meet the views of the trial court in regard to the admissibility of evidence, as to the value of the services of a veterinary surgeon, employed by plaintiff to treat the wounds inflicted upon his horse, the complaint, by leave of court,
“Plaintiff states that the defendant, by his servant and agent, while in the course of defendant’s employment, on or about the fifteenth day of October, 1904, in the city of St. Luis, so negligently managed his, the defendant’s automobile, that the same ran into the plaintiff’s vehicle and horse, and injuring all of them, causing damages to plaintiff in the sum of $150, for which sum and costs plaintiff asks judgment against the defendant.”
The facts as shown by the abstract are substantially as follows: On October 15, 1904, about five o’clock in the afternoon, plaintiff’s two daughters and a lady friend were driving plaintiff’s horse (hitched to a trap) in a slow trot, south on the west side of Newstead avenue, in the city of St. Louis. When the trap was within fifty feet of the intersection of Newstead ami Washington avenues, one of plaintiff’s daughters (not the driver) noticed an automobile, running at a speed of from twenty to twenty-five-miles an hour, approaching on Washington avenue west, and a coal wagon going north on NeAvstead avenue. The chauffeur driving the automobile, in making a circuit to get around and ahead of the'coal Avagon, drove in between the wagon and the trap but did not make the circuit sharps enough, in consequence of Avhich the automobile struck plaintiff’s horse on the left shoulder with such force as to turn him around and cut a gash seven or eight inches long in his shoulder.
An ordinance of the city, limiting the speed of automobiles to eight miles per hour, was read in evidence. The chauffeur was subject to the orders of defendant and his Avife, and the evidence shOAVs that he had been ordered by Mrs. Nute to call for her at the World’s Fair Grounds on that day at about six o’clock p. m., and that he called for her and she returned to^ her home in the automobile.
As to the damages, plaintiff’s evidence tends to show the value of the horse before he was injured was one hundred dollars and not more than eighteen dollars after the injury; that he paid twenty dollars to a veterinary surgeon for treating the horse and the charge was a very reasonable one; that the horse was disabled for several months and his services were reasonably worth one dollar and a half'a day. Defendant’s evidence tends to show that the horse was fourteen or fifteen years old, that he was ill-shaped, ragged and not worth more than twenty-five dollars before he was injured and his value was not depreciated by reason of the injury.
The chauffeur, was not in the State at the time of the trial. His deposition was not taken though the evidence shows defendant had' ample time to have taken it before the trial.
1. The court gave the following instructions for plaintiff:
“1. The court instructs the jury that if you find from the evidence that on or about October 15, 1904, a collision took place between an automobile and a horse, and that it was owned by plaintiff, and that such automobile was then owned by the defendant, and was in charge of the defendant’s servant and chauffeur, you are*208 authorized to infer from the facts thus found that said servant and chauffeur was at- the time engaged in defendant’s business and acting within the scope of his employment.
“2. The court instructs the jury that if you find for plaintiff you may, in estimating plaintiff’s damages, take into consideration the depreciation if any, in the value of the plaintiff’s horse, as the natural result of the collision, the value of the use of the horse while disabled, and the amount necessarily expended by plaintiff in an endeavor to heal the injuries inflicted on the horse, and award him damages accordingly not to exceed, however, in the aggregate, the sum of one hundred and fifty dollars. The depreciation above referred to would be the lessening in value, if any, of the horse as it was just before the collision and after the cure was effected, provided such lessening, if any, in value was the direct result of the collision.”
Defendant contends that instruction No. 1 is misleading and also erroneous, in that it told the jury that on evidence that the automobile belonged to defendant, and the chauffeur was in his employ, they might infer that at the time of the collision the chauffeur was about defendant’s business and acting within the scope of his authority. As the master is not liable for the tortious act of his servant, if the act was done while the servant was at liberty from his service and was pursuing his own ends exclusively (Garretzen v. Duenckel, 50 Mo. 107; Cousins v. Railroad, 66 Mo. 576), it was essential to plaintiff’s right of recovery that it should be shown the chauffeur was about his master’s business at the time of the collision. May this fact be presumed from evidence showing that the chauffeur who committed the tortious act was at the time operating a vehicle he was hired by defendant specially to run? Defendant cites the case of St. Louis Southwestern Ry. Co. v. Harvy, 144 Fed. 806, as holding the inference cannot be drawn.
2. Defendant contends that the second instruction on the measure of damages is erroneous. The chief argument against the correctness of the instruction is based on the fact that no instruction was asked by either party, telling the jury that it was necessary for them to find that the collision resulted from' the negligence of defendant, to authorize them to find a verdict for plaintiff. That no such instruction was asked or given is not complained of, but it is insisted that by reason of its omission, the instruction on the measure of damages should have been so framed as to require the jury to find that the collision was the result of negligence to authorize them to assess any damages. It seems to us that defendant is in no position to insist on this contention. He had the opportunity in the circuit court to ask for an instruction to the effect that to entitle plaintiff to recover and to damages, negligence and the collision must have concurred to cause the injury. Having failed to ask for what he was entitled to on the trial he ought not to complain that
It is also contended that the instruction is erroneous for the reason the jury were authorized to assess as damages the amount necessarily expended by plaintiff in endeavoring to heal the injuries inflicted upon his horse, and. the'value of his services while disabled. If the action had been commenced in the circuit court, defendant’s contention would have some weight, as the rules of good pleading require a special mention of these two items of damages, but no such strictness is required in a complaint before a justice of the peace, where under a general allegation of damages the plaintiff may prove and recover not only the damages that naturally flow from the injury complained of, but such additional damages as are ordinarily incident to the injury, as medical attendance and loss of time.
3. Exceptions to leave to amend the complaint and exceptions to the admission of evidence were saved by defendant at the trial, but as none of these are mentioned in defendant’s brief, we will take no notice of them.
No reversible errors appearing the judgment is affirmed.