author: WOLFE, Acting Presiding Judge.

text:
    PHOENIX ASSURANCE COMPANY OF NEW YORK, a Corporation, (Plaintiff) Respondent, v. ROYALE INVESTMENT COMPANY, a Corporation, (Defendant) Appellant.
    No. 31646.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.

      Shifrin, Treiman, Agatstein & Schermer, Howard A. Wittner, St. Louis, for defendant-appellant.
    Warren Grauel, Whalen, O’Connor, Grauel & Sarkisian, St. Louis, for plaintiff-respondent.
   WOLFE, Acting Presiding Judge.

This is an action by the plaintiff, Phoenix Assurance Company of New York, to recover from Royale Investment Company the amount the “Assurance Company” paid to Roy M. Scott. The plaintiff sought recovery by right of subrogation after paying Scott $603.62 under a policy of insurance. This sum was for damages to Scott’s automobile which had been stolen from a parking lot operated by the defendant Royale Investment Company. There was a judgment for the plaintiff, and the defendant prosecutes this appeal.

The facts of the matter are that the Royale Investment Company operated the Ambassador-Kingsway Hotel in the City of St. Louis. Directly to the east of the hotel it maintained a parking lot which was generally used for hotel guests. The defendant corporation also maintained another lot about 100 feet east of the one mentioned, which was used for parking of cars belonging to persons who attended various functions at the hotel.

Roy M. Scott carried a policy of comprehensive insurance with the plaintiff Phoenix Assurance Company of New York on his 1957 Buick. He came to St. Louis with his wife on September 27, 1960 in the automobile. They stopped by the main entrance of the Ambassador-Kingsway Hotel at about ten p. m. There a doorman took over the automobile and gave Scott a claim check. Scott kept the key to his car as the Buick ignition switch was made so that it could be turned and the motor started without the use of the key.

Scott and his wife retired to their room in the hotel. At about 4:30 in the morning Scott was awakened by a phone call from a police officer who told him that his car had been involved in a wreck in south St. Louis. Scott dressed at once and went to the police station from which the call originated. The police gave him a release order to get his car, which had been taken to a parking lot. There he found his car damaged in the front end, including the hood, headlights, windshield, and right front fender. The car would still operate and he drove it away. The car was later taken to Yates Oldsmobile, Inc., and it was repaired there at a cost of $545.09. Scott was obliged to rent a car for a week, as he was in St. Louis on business, and for this he paid $50.00. He also paid a towing charge of $8.53. His insurance company, Phoenix Assurance Company of New York, the plaintiff herein, paid the damages that he had thus sustained in the total sum of $603.-62.

Scott remained at the hotel until October 4. He was charged and paid one dollar for the first night of parking. The claim check that he was given by the doorman had printed on the back of it:

“The Hotel assumes no responsibility for cars parked on this lot whether for the car or damages or contents therein.
“We do not have an attendant at all times.
“This ticket is not a receipt. It indicates our agreement concerning parking.
“All owners placing automobiles with the Hotel parking lot do so subject to the above terms and conditions.”

The defendant’s evidence chiefly consisted of the testimony of the bell captain of the hotel. He recalled that Scott and his wife arrived at the hotel and that he told Scott that he would park his car for him. He said that Scott kept the key, but he could operate the car without it and lock all of the doors. He said that he told Scott that he would park the car at Scott’s own risk. He also said that he called Scott’s attention to the “writing on the stub”. He stated that he took the car, parked it on the lot, and that he closed all of the windows and locked the doors. The parking lot was lighted, but it was unattended from 1:30 a. m. to 8:00 a. m.

The first point raised by the appellant defendant is that the court erred in refusing defendant’s offered instruction C. This instruction stated that the automobile was parked at the owner’s own risk if the owner’s attention was directed to the printed statement, set out above, on the ticket given him, and that if his attention was so directed the defendant was not liable for the damage to the car.

The respondent points out that its petition contained a general charge of negligence, and it contends that it is against public policy to permit one serving the public to exempt oneself from liability for one’s own negligence. There is some support for respondent’s contention in 8 Am. Jur. (2d), paragraph 131, p. 1026, wherein it is said:

“The courts, while recognizing that an ordinary bailee may contract to exempt himself from liability for loss of or damage to the goods, occasioned by his own negligence or that of his employee, exhibit a strong tendency to hold contracts of this character, when entered into by bailees in the course of general dealing with the public to be violative of public policy and this tendency becomes more pronounced in the more recent decisions. These bailees, who are termed ‘professional,’ as distinguished from ‘ordinary,’ bailees, are those who make it their principal business to act as bailees and who deal with the public on a uniform and not an individual basis, such as owners or proprietors of parcel checkrooms, garages, parking stations, and parking lots, carriers, innkeepers, and warehousemen. The basis for denying the right of such bailees to limit their liability for their own negligence is that the public, in dealing with them, lacks practical equality of bargaining power, since it must either accede to the conditions sought to be imposed or else forego the desired service. It is said that a bailee who is performing services for which the public has a substantial need should not be permitted to use this circumstance to coerce the members of the public into contracts of this kind.”

The above statement from Am.Jur. (2d) is drawn from various cases relating to bailments, some of which are Miller’s Mut. Fire Ins. Ass’n. of Alton, Ill. v. Parker, 234 N.C. 20, 65 S.E.2d 341; Nagaki v. Stockfleth, 141 Neb. 676, 4 N.W.2d 766; Irish & Swartz Stores v. First National Bank of Eugene, 220 Or. 362, 349 P.2d 814; Keenan Hotel Co. v. Funk, 93 Ind.App. 677, 177 N.E. 364.

We are asked by the respondent to follow the foregoing pronouncements by holding that a contract such as this on a parking lot, exempting the bailee from liability, is against public policy. However, public policy is not an unknown and variable quantity upon which a valid judgment may be based. It is to be determined by the Constitution, the laws, and the judicial decisions of the State. In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877; Brawner v. Brawner, Mo.Sup., 327 S.W.2d 808.

We do not reach the point raised by the respondent, on the facts before us, as to what public policy is or should be on the subject of such bailments. The established rule of construction of a contract containing provisions exempting one from liability will never be implied to extend to liability for one’s own negligence unless such an intention is clearly and explicitly stated. 17 C.J.S. Contracts § 262, p. 1160; Poslosky v. Firestone Tire and Rubber Company, Mo.Sup., 349 S.W.2d 847; Meyer Jewelry Co. v. Professional Building Co., Mo.App., 307 S.W.2d 517.

The general exculpatory clause does not meet the requirement set out above, and consequently cannot be construed to cover the negligence of the bailee. Nor is the bailee saved by the added statement, “We do not have an attendant at all times,” for this does not exclude a conclusion that the defendant was negligent in leaving the entrance and exit of the lot open when the lot was not attended. The court therefore did not err in refusing the instruction offered by the defendant relating to the printed matter on the claim check.

As stated, the petition charges general negligence. Under -the pleading the proof of damage to the automobile raised a presumption of negligence, and the burden of going forward with the evidence then shifted to the defendant. Nuell v. Forty-North Corporation, Mo.App., 358 S.W.2d 70; Bommer v. Stedelin, Mo.App., 237 S.W.2d 225.

The fact that the car was stolen did not absolve the defendant, for it was incumbent upon it to present evidence that it had exercised ordinary care to safeguard the automobile from theft. Nuell v. Forty-North Corporation, supra, and Halyard v. Dechelman, 29 Mo. 459.

Another point raised is that the court erred in refusing to give defendant’s offered instruction "D", which limited to $200 the amount of damages which the jury might award. This was offered under the theory that the loss came under Section 419.010, RSMo 1959, V.A.M.S., which limits innkeepers’ liability for certain losses to $200. The statute relates to the loss of “any money, jewelry, wearing apparel, baggage or other property of a guest.” It is contended that the ■ words “or other property” includes a guest’s automobile.

Under the common law, innkeepers were liable for the loss of their guests’ goods, and this was to protect travelers against dishonest practices of innkeepers and their servants. (43 C.J.S. Innkeepers § 13, p. 1153). In so far as statutes of this nature are in derogation of the common law, they are to be strictly construed. (43 C.J.S. Innkeepers § 17, p. 1159).

Under the rule or maxim of construction known as ejusdem generis, general words following the enumeration of particular classes of things will be construed as applying to things of the same general nature or class of those enumerated. Capra v. Phillips Investment Company, Mo. Sup., 302 S.W.2d 924; Robinson v. Missouri Real Estate Commission, Mo.App., 280 S.W.2d 138, 56 A.L.R.2d 566. Applying that rule to the statute in question, the words “or other property” obviously applied to things carried into the hotel by the guest. It would not include the guest’s automobile. For this reason and for the further reason that the defendant under the evidence was nothing more than a bailee for hire, the statute has no application. The court did not err in refusing the offered instruction.

Another point raised is that the court erred in admitting in evidence a photo copy of a draft by which the plaintiff Assurance Company paid Scott’s repair bill. It is contended that this violated the best evidence rule. This assignment of error was not presented in the motion for a new trial, and it is therefore not before us for review. 2A Missouri Digest, Appeal and Error.

The only remaining point which is not disposed of by that which we have heretofore said is that there was no evidence to support the measure of damages instruction as it related to the value of the automobile before and after the theft. We find the evidence of the cost of repairs which restored the automobile to the same condition in which it was prior to the theft sufficient to support the instruction. It should also be noted that there is no claim that the verdict is excessive.

For the foregoing reasons, we affirm the judgment of the Circuit Court.

ANDERSON, J., and L. F. COTTEY, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: RUDDY, Presiding Judge.

license: Public Domain

text:
    NATIONAL DAIRY PRODUCTS CORPORATION, a Corporation, and Albert L. Kern, Plaintiffs-Appellants, v. Robert A. FRESCHI, Mrs. Robert A. Freschi and Richard A. Freschi, a Minor, Defendants-Respondents.
    No. 31459.
    St. Louis Court of Appeals. Missouri.
    July 21, 1965.

      Richard M. Stout, Philip M. Sestric, Kent E. Karohl, St. Louis, for plaintiffs-appellants.
    George E. Lee, Doris J. Banta, St. Louis, for defendants-respondents.
   RUDDY, Presiding Judge.

This case was reassigned recently to the writer of this opinion. Plaintiffs appeal from the orders of the Circuit Court sustaining the Motion for Summary Judgment filed by one defendant and Motions for Directed Verdict at the close of plaintiffs’ opening statement filed by the other two defendants. One set of events on the 10th day of December, 1957 gives rise to the separate and distinct claims for damages asserted by plaintiffs and stated in separate counts with Count I relating to the claim of the National Dairy Products Corporation and Count II being on behalf of plaintiff Albert L. Kern. The petition alleges that the plaintiff National Dairy Products Corporation was engaged in the distribution of dairy products in the County of St. Louis and for such purpose was the owner of a 1952 Divco truck; that the plaintiff Kern was an employee of the Dairy Company, making deliveries of milk in the 300 block of McDonald Avenue in Webster Groves, Missouri; that defendant Richard Freschi was three years of age at the time and the son of the other two defendants.

It is alleged that the driver of the truck, plaintiff Kern, “lawfully parked” at the curb in the 300 block of McDonald Avenue while he made deliveries of milk in said block in the scope of his duties as such employee; that while the driver was away from the truck the defendant Richard Freschi “negligently and carelessly entered upon the same, released the brake thereof and attempted to drive and operate the same down said MacDonald Avenue,” and as a direct result the truck was caused to collide with a building and considerable damage resulted to the truck and to the dairy products contained in the truck, for which the dairy company asks damages in the total amount of $500.00.

The dairy company alleges that the damage was the direct and proximate result of acts of negligence of the defendants, in that:

“a. Defendants Mr. and Mrs. Robert Freschi and each of them negligently and carelessly failed to use ordinary care to restrain and control their said son, Richard Freschi, when they knew or in the exercise of ordinary care could have known that said child had a propensity for. entering on and attempting to drive trucks.

“b. Said defendants negligently and carelessly failed and refused to use ordinary care to restrain their said child to prevent him from entering upon and releasing the brake of plaintiff’s truck.

“c. Defendant Richard Freschi negligently and carelessly released the brake of plaintiff’s truck and attempted to drive same without having secured a driver’s license from the State of Missouri.

“d. Said defendant Richard Freschi negligently and carelessly entered upon plaintiff’s truck, released the brake thereof and attempted to drive same when he was unable to do so.

“e. Said defendant Richard Freschi negligently and carelessly drove, steered and operated plaintiff’s truck into, against and upon the aforesaid building.”

Plaintiff National Dairy Products Corporation states that its said damages were and are the direct and proximate result of the negligence alleged.

On behalf of Plaintiff Kern, in addition to the allegations heretofore recited, it is alleged that he saw the defendant Richard Freschi attempting to drive said truck down the street; that the life and limb of said child were endangered by driving the said truck; that he, plaintiff Kern, attempted to stop said truck and to rescue the child and in so doing, he was dragged by said truck for a distance of approximately 200 yards and sustained numerous physical injuries to his body and was caused to expend $25.00 for medical care and attention. He alleges further that all of said injuries resulted directly and proximately from the negligence of defendants as set forth in the petition.

To this petition defendant Richard Freschi filed his Motion for Summary Judgment under the provisions of Civil Rule 74.04, V.A.M.R. on the ground that the petition revealed that he was a minor of the age of three years and under the laws of the State of Missouri there could be no recovery against a person of the age stated where such recovery is sought upon the ground of negligence and carelessness of said person.

This Motion for Summary Judgment was sustained by the trial court and although plaintiffs have undertaken to appeal from this order, they have not perfected their appeal as to this order. They have failed to raise any question about this ruling in their points relied on. By failing to do so, they have abandoned any claim of error as to such ruling. State v. Brookshire, Mo., 325 S.W.2d 497, 500.

The defendant parents filed Answer to the petition in which they admitted the family relationships and denied each and every other averment. The Answer also alleged contributory negligence on the part of the plaintiffs and assumption of risks of injury and damage by plaintiffs.

On November 26, 1962, the cause came up for trial on the petition and answer as set out and after the jury had been selected and sworn to try the case, the plaintiffs’ attorney proceeded to make an opening statement. Portions of this opening statement pertinent to the questions here presented are as follows:

“Count One of the petition is brought by the St. Louis Dairy or National Dairy Products Corporation for damages to a truck and for the destruction of about $200.-00 worth of milk.

“Count Two is brought by Mr. Kern for some personal injury sustained out of the same accident that I am about to describe to you.

“The defendants in the case are Robert A. Freschi, who is here in court with his wife. They live together with their small son, Richard, on McDonald Place in Webster Groves.

“Back in 1957, on December 10 of that year, the evidence will show that the Freschis lived in their home, I think it is 330 McDonald Place, that Mr. Kern was employed by the National Dairy Products Corporation as a milk wagon driver; that early on that day he was on his route, which included the 330 block of McDonald and parked his truck at the curb; that he turned off the ignition switch and put on the brakes, and he left the truck with the doors open, as milkmen do, to deliver some milk.

“The evidence will show that when he got out of the truck he didn’t see young Richard Freschi anywhere around, but when he started to make a delivery of milk his attention was attracted by the motion of a truck and he turned around and noticed the truck rolling down the hill, which is a very steep hill.

“The evidence will show that he threw a container down and caught hold of the truck, and he was successful in climbing up to the door and getting his hand inside to hold the boy before the crash came. The crash was in front of Mr. Ballwin’s house where the truck knocked a porch off Mr. Ballwin’s house.

“The evidence will show that Richard was approximately three years of age — give or take a month or two.

“The evidence will show that he was in his pajamas at the time.

“The evidence will further show that prior to this time, at least on two or three occasions, Mr. Kern had seen young Mr. Freschi two or three blocks away from his home in pajamas in the early morning.

“On another occasion, although Mr. Kern didn’t know about the other matter until after the accident occurred, young Freschi climbed down the sewer and moved down a couple manholes before they fished him out. And the evidence will show he was found in a neighbor’s house across the street, having climbed in through a window. The evidence will show he probably escaped from the Freschi home through a window from his nursery.

“We are unable to find any evidence that young Freschi had ever been known to climb into and start an automobile or truck before.

He * % >;< * #

“It is our contention that under these circumstances Mr. and Mrs. Freschi are liable to the damages that St. Louis Dairy Company sustained to its truck and the milk products and the injury Mr. Kern sustained in his attempt to rescue Richard Freschi from serious injury; that Mr. Kern was actually successful in his effort to hold him back so that he would not be bounced against the windshield. He was not able to get inside the truck, he was hopping alongside of it, but he was not able to get in before it hit the house. It is a very steep hill that drops down toward the Ballwin’s home, which is the house that was hit.

“It is our contention that Mr. and Mrs. Freschi knew or in the exercise of ordinary care should have known their young son needed supervision in the early hours of the morning when he had a way of getting out of the house to get to places where he didn’t belong. They are liable for the reasonable losses sustained by the St. Louis Dairy Company and Mr. Kern in connection with Mr. Kern’s efforts to rescue young Richard, and we would ask you to return a verdict in our favor if we show you these facts.

“Mr. Lee suggests, and correctly, this was about 7:00 in the morning.”

Following this opening statement, defendants made an oral motion for a directed verdict in their favor and also filed a written motion for directed verdict. The court sustained this motion, directed one of the jurors to sign a form of verdict in favor of defendant parents and thereupon a judgment was rendered against the plaintiffs on both Count I and Count II.

Neither party argues or briefs any point with reference to contributory negligence, and the case is presented to this court upon the question of whether or not the petition and opening statement revealed that a case could or would be made by plaintiffs against the parents of a three year old son in the circumstances outlined in the petition and in the opening statement.

If the plaintiffs’ petition states a cause of action against the defendants, the trial court may not take the case away from the jury at the close of the opening statement by directing a verdict, except where it clearly and definitely appears from the opening statement that the plaintiff cannot recover. Such action by the court is an extreme measure and should be exercised cautiously and only in a clear case. Hays v. Missouri Pacific Railroad Co., Mo., 304 S.W.2d 800; Bush v. Anderson, Mo.App., 360 S.W.2d 251; 88 C.J.S. Trial § 161c, pp. 318-321.

The opening statement is usually only an outline of anticipated proof rather than a detailed statement, and counsel is properly permitted considerable latitude with regard to what he does not say as well as what he does say. Counsel is not expected to recite every detail of evidence to be offered and the mere insufficiency of the opening statement to recite facts which show that plaintiffs’ anticipated evidence would, as a matter of law, present a sub-missible case, is not of itself standing alone, sufficient justification to stop the case at that stage and direct a verdict for defendants. Hays v. Missouri Pacific Railroad Co., supra; Bush v. Anderson, supra; 88 C.J.S. Trial §§ 161a-161c.

In the case of Butcher v. Main, Mo., 371 S.W.2d 203,1. c. 206-207 the Supreme Court said: “Our general view is that courts should be very reluctant to direct a verdict at the close of plaintiff’s opening statement. It certainly should not be done because of the mere failure to state facts sufficient to constitute a submissible case unless counsel affirmatively admits that no additional facts will be shown by the evidence. A different situation is presented when the statement of counsel affirmatively discloses, as a matter of law, that plaintiff is not entitled to recover. * * * ” We think the opening statement of counsel affirmatively discloses as a matter of law that plaintiff is not entitled to recover.

The only act of negligence charged against the defendants, parents of Richard Freschi, was that they “ * * * negligently and carelessly failed to use ordinary care to restrain and control their said son, Richard Freschi, when they knew or in the exercise of ordinary care could have known that said child had a propensity for entering on and attempting to drive trucks.

“Said defendants negligently and carelessly failed and refused to use ordinary care to restrain their said child to prevent him from entering upon and releasing the brake of plaintiff’s truck.” Concisely stated, the parents of Richard Freschi are charged with having knowledge that Richard had a propensity for entering and attempting to drive trucks and that they failed and refused to restrain him in that propensity. Plaintiffs in their brief state that the issue presented is apparently one of first impression before the Missouri courts. The precise question involved here does not seem to have been before the courts of this state. However, in the case of Charlton v. Jackson, 183 Mo.App. 613, 167 S.W. 670, this court held that parents who permitted a reckless 13 year old boy to play with a shotgun would be liable to plaintiff who was shot by him. There was evidence that the boy had, prior to the day when he shot plaintiff, pointed the gun at her in the presence of his father. In that case we announced the rule as follows: “ * * * No one can doubt that, if the father knows his indiscreet minor son of tender years is using a firearm in such careless and negligent manner as to endanger the safety of others about him, it is his duty to interpose the parental authority to prevent injury to such persons as may, within the range of reasonable probability, be exposed to injury therefrom. * * * ”

Other cases charging a parent with neglect and failing to restrain a vicious son have been before the Supreme Court. In Paul v. Hummel, 43 Mo. 119, the court said: “ * * * A parent cannot be held liable for the willful trespasses and torts of his infant children, when he neither assents to nor ratifies them. * * * There is no such relation existing between father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any other person. * * * ” In that case the court absolved the parent of liability. The same rule had been announced and followed in the case of Baker v. Haldeman, 24 Mo. 219, wherein the petition alleged an assault with a knife and a cutting and maiming of plaintiff’s minor son by defendant’s minor son. The rule of liability against the parents recognized in those cases is that a parent may be liable where the parent knowingly permits his child to mishandle firearms or other dangerous weapons. As pointed out by the defendants herein, the use of a firearm or other dangerous weapon is not involved in the instant case.

In the Missouri cases just cited the law is reasonably well established that the parent is not liable, merely by reason of his or her relationship, for the torts of the child. Also see Murphy v. Loeffler, 327 Mo. 1244, 39 S.W.2d 550. The plaintiffs recognize this rule but assert that the question is not one of parental liability for the tort of the child, but one of direct negligence on the part of the parents. The rule in this regard is stated in 67 C.J.S. Parent and Child § 68, p. 798, as follows: “As a general rule, a parent may be liable for an injury which is directly caused by the child, where the parent’s negligence has made it possible for the child to cause the injury complained of and probable that the child would do so, * * However, as we have stated, the liability of the parent for the tort of the child is not because of his or her relationship to the child but the liability of the parent is based on the rules of negligence rather than on this relationship and in this connection the negligence of the parent must have been the proximate cause of the injury, Hulsey v. Hightower, 44 Ga.App. 455, 161 S.E. 664. As said in 67 C.J.S. Parent and Child § 68, p. 799, “ * * * In other words, the injury must have been the natural and probable consequence of the negligent act, that is, a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such act. In order to render a parent liable, his or her negligence in the exercise of parental supervision must have some specific relation to the act of which complaint is made, and liability may not be predicated on a failure to supervise where supervision would not have rendered the parent aware of the possibility of the tortious conduct of the child.” The cases cited by both plaintiffs and defendants are either founded upon the use of a dangerous instrumentality by the child with the knowledge of the parent or where assaults were made by the child by striking, beating and abusing other children and the parents knew of their child’s propensities for committing said assaults. In a reading of virtually all of the cases cited the basis of liability is that the child had a habit of doing the particular type of wrongful act which resulted in the injury complained of. Martin v. Barrett, 120 Cal.App.2d 625, 261 P.2d 551; Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81; Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933. In other words, the parent was charged with the duty to foresee the commission of the tort alleged because of his or her knowledge of the child’s habits, traits or propensities toward the commission of the particular tort and a failure upon a part of the parent to restrain or control the child from the commission of the particular type of wrongful act which resulted in the injury complained of creates liability. The negligence of the parents in the exercise of parental supervision must have some specific relation to the act which is alleged to have caused the injury and liability against the parent may not be predicated on a failure to supervise, restrain or control the child where the failure to so supervise, restrain or control the child had no relationship to the specific act which caused the injury to the plaintiffs. Bateman v. Crim, D.C.Mun.App., 34 A.2d 257. A case frequently cited which shows situations wherein a parent may incur liability and which constitute exceptions to the general rule that the parent is not liable for the tort of his minor child because of the mere fact of his paternity is Steinberg v. Cauchois, 249 App.Div. 518, 293 N.Y.S. 147. In that case the plaintiff while walking on a public sidewalk was struck by a bicycle operated by the child defendant. The parents were charged with negligence in permitting their minor child to operate a bicycle on the sidewalk in violation of a city ordinance and the complaint alleged that the defendants permitted their child to operate the bicycle in a reckless manner on the sidewalk after they had notice of his conduct in so operating it on previous occasions. The jury brought in a verdict for the plaintiff against both the child and his parents. On appeal, the judgment was reversed as to the parents. The court said: “In our opinion the evidence is insufficient to charge the adult defendants with liability to the plaintiffs for damages resulting from the tort of their infant son. The parent is not liable, merely by reason of his or her relationship, for the torts of the child. * * * ‘Unless made so by statute, there is no liability on the part of a parent, as such, for the tort of a child. The child * * * is, in general, liable for his own tort.’ Harper’s Law of Torts, § 283. There are situations in which the parent may be held liable: (1) Where the relationship of master and servant exists and the child is acting within the scope of his authority accorded by the parent; (2) where a parent is negligent in intrusting to the child an instrument which, because of its nature, use, and purpose, is so dangerous as to constitute, in the hands of the child, an unreasonable risk to others; (3) where a parent is negligent in intrusting to the child an instrumentality which, though not necessarily a dangerous thing of itself, is likely to be put to a dangerous use because of the known propensities of the child; (4) where the parent’s negligence consists entirely of his failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity towards such conduct; and (5) where the parent participates in the child’s tor-tious act by consenting to it or by ratifying it later and accepting the fruits. Harper’s Law of Torts, supra. None of these exceptional situations is inferable from the evidence in this case.”

The situations referred to in (1), (2), (3) and (5) have no application to the facts in the instant case. It is only the situation mentioned in (4) that has any application to the facts and circumstances of this case, and it is this category of liability on which plaintiffs rely. In their points relied on plaintiffs assert that the court erred in ruling that they did not have a cause of action against the parents of the minor defendant where the petition alleged and the evidence offered would show that the defendant-parents knew or in the exercise of ordinary care should have known of the propensity of their said minor to perform acts of the same kind as those which caused the injury, but failed to exercise reasonable care to control their minor and prevent the act. The difficulty and fallacy of plaintiffs’ position in this regard is that in their opening statement they did not offer evidence to show that the minor child had the propensity to perform acts of the same kind as those which caused the injury in the instant case. To the contrary, the opening statement shows that plaintiffs were “ * *- x unable to find any evidence that young Freschi had ever been known to climb into and start an automobile or truck before.” This statement does not demonstrate a mere insufficiency to recite facts which show that plaintiffs’ anticipated evidence would as a matter of law present a submissible case but it is a clear and unmistakable admission on the part of plaintiffs that they have no evidence that young Fres-chi had ever been known to climb into and start an automobile or truck before. This opening statement is an admission that plaintiffs are unable to prove that the minor boy, Richard Freschi, had a propensity for entering and attempting to drive trucks as alleged in plaintiffs’ petition. Of course, before the parents can be charged with negligently and carelessly failing to restrain and control their said child to prevent the child from entering upon and attempting to drive a truck and having a propensity therefor, it is incumbent upon the plaintiffs to prove that the said minor child had such a propensity. If plaintiffs are unable to prove that said minor child had climbed into and started automobiles or trucks before, they certainly cannot prove that the parents of said minor child failed and refused to restrain the said minor child in that propensity. Plaintiffs’ inability to produce evidence in support of their allegation in the petition that the child had such a propensity is fatal to plaintiffs’ cause of action. As we have said before our reading of the cases shows that the basis of liability on the part of the parents is that the child had a habit of doing this particular type of wrongful act which resulted in the injury complained of and that the parents had knowledge thereof and failed to restrain and control the child in the performance of such propensity.

In the case of Ryley v. Lafferty, D.C., 45 F.2d 641, the complaint alleged in substance, that defendant’s child had a vicious and malignant disposition and habit of inveigling smaller boys into secluded places and there beating, bruising, maiming, and punishing them; that the defendant parents at the time in question well knew of such vicious habit and disposition; that, notwithstanding such knowledge, they permitted continuance of their son’s act; that the father encouraged his son in such conduct by resenting any resistance or admonition by others when such acts were committed, and failed to protect other children from such acts. The District Court in overruling a demurrer to the complaint said, “While it is true that parents are not liable for torts committed by their minor children without their consent and knowledge, yet the principle applicable to the facts alleged in this case is that the parents are liable if it appears that they knew that their child was guilty of committing the particular kind of tort habitually and encouraged the child, as alleged, and made no effort to correct or restrain him. * * * ” (Emphasis ours.)

In the case of Norton v. Payne, 154 Wash. 241, 281 P. 991, the action was brought for an infant aged five years, by her guardian ad litem, for injuries sustained by being struck in the eyeball with a stick in the hand of the child of respondent, age seven years, possessed of the habit of striking smaller children in the face with sticks. It was alleged that the parents of the child causing the injury knew about and encouraged her in her habit of striking other children with sticks. The judgment of the trial court dismissing the action was reversed and remanded. The court in the course of its opinion said, “ * * * the evidence is that the parents knew that their child was guilty of committing this particular kind of tort habitually; that the father encouraged her therein; which implies that he made no effort to restrain the child, and therefore must be deemed to have consented to its commission at any time by the child.”

In the case of Steinberg v. Cauchois, supra, heretofore referred to, as we said, the judgment against the parents was reversed on appeal on the particular ground that sufficient notice had not been brought home to the parents that their son was accustomed to riding his bicycle on the sidewalk.

In the case of Bateman v. Crim, supra, plaintiff was* injured when two boys were playing on the sidewalk with their football. In denying liability against the parents of said boys the court held that there was no evidence that either boy had previously played with a football on public streets or conducted himself in a disorderly manner; and that in order to render a parent responsible for injuries resulting from his minor child’s wrongful deed, the parent’s negligence in the exercise of parental supervision must have some specific relation to the act complained of, and that such was lacking in the case.

The case of Martin v. Barrett, supra, was one in which the complaint alleged that the child, aged twelve, was a careless, unreasonably aggressive and reckless person. It involved injuries sustained by plaintiff’s child, age five, in the use of a B-B gun or air rifle by defendant’s child. In holding that the complaint failed to state a cause of action the court said, “ * * * before a cause of action may be stated against the parents for the tort of a child it must allege a specific known course of misconduct by the minor involving his habitual, intentional, and specific wrongful acts against other parties and the parents’ failure to take proper precaution to guard them against said acts. The plaintiffs in the instant case failed to allege sufficient participation by either parent on the part of the child to state a cause of action against them.” (Emphasis ours.)

In the case of Capps v. Carpenter, 129 Kan. 462, 283 P. 655, it was alleged that the boy’s father was negligent in giving him a B-B gun when he knew or should have known of the boy’s bad disposition and habits. It was further alleged that the child was cruel, treacherous, selfish, arbitrary, domineering and prone to inflict punishment on other children. The court reversed the case and remanded it for a new trial because of error in the admission of testimony as to paltry “cruelties” on the child’s part and error in instructions. Among other things the court said, “ * * * Whether Joe was domineering or arbitrary or selfish or inclined to impose on other children, or had such a reputation, had nothing to do with the case. Likewise, whether he was cruel, and inclined to chastise and inflict punishment on other children, and had such a reputation, was not important, unless the propensities and reputation went far beyond ‘being mean among other children.’ ”

The case of Staruck v. County of Otsego, 285 App.Div. 476, 138 N.Y.S.2d 385, was one in which the plaintiffs sought to charge the county for negligence in the supervision of a vicious and dangerous boy. The court held that although the boy’s past conduct had stamped him as a delinquent, the proof was not such as to indicate to a reasonable mind that he would shoot someone. It said, “ * * * In the absence of some compelling reason that indicates the necessity of isolating such a child neither the parent nor the county is under the necessity of keeping him under constant surveillance * *

A case closely akin to the instant case in principle is that of Gissen v. Goodwill, Fla., 80 So.2d 701. In that case a hotel employee sued the parents for injuries suffered when their child, eight years of age, slammed the door on his hand. The petition alleged that the child had dangerous tendencies and propensities of a mischievous and wanton disposition and that she had previously damaged objects of furniture and furnishings in the hotel and harassed and disturbed the guests thereof and that she committed other wanton, willful and intentional acts of a similar nature to the act committed against the plaintiff such as striking guests and employees of the hotel. The court after reviewing many of the cases we have reviewed said, “One common factor from the foregoing cases appears salient in the assessment of liability to the parents, that the child had the habit of doing the particular type of wrongful act which resulted in the injury complained of. * * * It is nowhere claimed that the child here involved had a propensity to swing or slam doors at the hazard of persons using such doors. The deed of a child, the enactment of which results in harm to another and which is unrelated to any previous act or acts of the child, cannot be laid at the door of the parents simply because the child happened to be born theirs. However, a wrongful act by an infant which climaxes a course of conduct involving similar acts may lead to the parents’ accountability. A deed brought on by a totally unexpected reaction to a situation which is isolated of origin and provocation could not have been foretold or averted and hence could not render the parents responsible.” The court sustained the action of the trial court in entering judgment against plaintiff for failure to state a cause of action stating that “ * * * it is not made to appear that the injury claimed to have been sustained by the appellant was a natural and probable consequence of negligence on the part of the ap-pellee parents.”

Plaintiffs rely on the case of Caldwell v. Zaher, 344 Mass. 590, 183 N.E.2d 706. This was an action against parents of a child on the theory that the parents knew of the tendency of the child to assault, accost, torment and molest young children but who took no steps to restrain the child in these propensities. This case offers no support to plaintiffs because the court in the case said: “ * * * This duty of parental discipline arises when the parent knows or should know of the child’s propensity for the type of harmful conduct complained of, and has an opportunity to take reasonable corrective measures. * * * ” The other authorities cited by plaintiffs contain the same holding.

Because this case seems to be one of first impression in this state, we have reviewed extensively the authorities of other jurisdictions. We think the rule that may be safely laid down is that where the parents had knowledge of the child’s habits, traits or propensities toward the commission of a particular tort and they failed to exercise supervision and control over the child in connection with the commission of the particular type of wrongful act and subsequently a similar act resulted in injury to a complainant liability may be imposed upon the parents. It was not error for the trial court to sustain the motion for a directed verdict as to Count I at the close of the opening statement.

In its last point, plaintiff Albert Kern asserts that the court erred in ruling that he did not have a cause of action on Count II of the petition ¿gainst the parents of Richard Freschi, a minor, for the value of injuries received in the attempt to rescue the minor from a dangerous situation in an emergency. In Count II of the petition the said plaintiff alleged that his injuries resulted directly and proximately from the negligence of the defendants (parents) . He seems to indicate that his theory of recovery is based upon the “rescue doctrine.” A general statement of the rescue doctrine is that one who has, through his negligence, endangered the safety of another, may be held liable for injuries sustained by a third person in attempting to save such other from injury. To maintain an action on Count II, plaintiff Kern must allege and prove that through the negligence of the defendants (parents) they have endangered the safety of the child and that plaintiff Kern’s injuries were sustained in an attempt to save the child from injury. Inasmuch as we have held that plaintiffs in their opening statement admitted they had no evidence to show the negligence of the parents in the respects charged we must find that the trial court’s action in sustaining the motion for a directed verdict on Count II at the close of the opening statement by plaintiffs was correct. The judgment of the circuit court should be affirmed. It is so ordered.

WOLFE and ANDERSON, JJ., concur.


author: HOWARD, Judge.

text:
    Ex parte Michael J. WARIS. STATE of Missouri ex rel. Michael J. WARIS, Plaintiff, v. Hon. Mark A. YOUNGDAHL, Judge of the Municipal Court of the City of St. Joseph, Missouri, Respondent.
    Nos. 24372, 24377.
    Kansas City Court of Appeals. Missouri.
    July 6, 1965.
    Theodore M. Kranitz, Richard W. Dahms, St. Joseph, for petitioner.
    Richard W. Mason, Jr., John B. Mitchell, Gene C. Thompson, St. Joseph, for respondent.
   HOWARD, Judge.

The two above styled cases both grow out of the same situation and have been consolidated in this court.

In the one case, petitioner Waris by writ of habeas corpus seeks release from imprisonment pursuant to a judgment of the Municipal Court of St. Joseph, Missouri. In the other case, petitioner Waris seeks a writ of mandamus to compel the judge of the Municipal Court of the City of St. Joseph, to allow and process his appeal from the judgment of that court. Because of the prolific nature of the proceedings had in connection with, this case, they will be set out in chronological order.

On April 19, 1965, Michael J. Waris, a young man of twenty-one years, appeared in the Municipal Court in the City of St. Joseph, Missouri, and entered a plea of guilty to a charge of “failure to yield right of way”, in violation of a city ordinance. Judgment was entered on the plea of guilty. The exact provisions of this judgment have been disputed, but for our purposes it imposed a fine of $30.00, plus $2.00 costs, and a sentence of six months in jail, with an unlimited stay of execution on the jail sentence. Petitioner immediately paid his fine and costs in the total amount of $32.00, and went free, without bond or any order to appear in court at a later date.

On May 18, 1965, the judge of the Municipal Court purported to revoke the stay of execution theretofore granted on April 19, 1965, and issued an execution and commitment for the confinement of petitioner under the sentence of April 19, 1965.

Thereafter, on May 21, 1965, petitioner filed an application for writ of prohibition in the Supreme Court of Missouri. The Supreme Court issued a telegraphic stop order to the judge of the Municipal Court on May 24, 1965. On this same date, May 24, 1965 (it is alleged, that the following occurred after receipt of the telegraphic stop order by the judge), petitioner was arrested under the commitment issued on May 18, 1965, pursuant to the sentence of April 19, 1965.

Within a few minutes after the arrest and on May 24, 1965, petitioner filed his writ of habeas corpus in the Circuit Court of Buchanan County, Missouri.

On May 26, 1965, the Circuit Court, in the habeas corpus proceeding, on considering the sentence imposed upon petitioner in Municipal Court on April 19th, determined “that the fine, jail sentence and Stay of Execution were inseparable parts of the sentence and that such sentence was in excess of the Municipal Court’s jurisdiction”. Petitioner was therefore “remanded to the Municipal Court for the assessment of a proper and lawful sentence”, and directed to appear in the Municipal Court at 10 a. m. on May 27, 1965.

On May 27; 1965, petitioner appeared in Municipal Court, with his attorney, and filed his motion to withdraw his plea of guilty. The Municipal Court took no action because of the stop order theretofore issued by the Supreme Court of Missouri.

On June 14, 1965, the Supreme Court of Missouri issued a telegraphic order reading: “State ex rel Waris vs. Youngdahl, Judge. Relator’s first amended petition for writ of prohibition denied because judgment has been declared invalid by circuit court and relator has adequate remedy by appeal from any future judgment.”

On June 16, 1965, petitioner appeared in Municipal Court with his attorney and petitioner’s motion to withdraw plea of guilty was by the court overruled. Petitioner then requested a return of the $32.00 theretofore paid as fine and costs, under the sentence of April 19, 1965. Such refund was refused. The Municipal Court then entered its judgment sentencing petitioner on his plea of guilty entered April 19, 1965, to imprisonment for a term of six months in the Buchanan County jail and a fine of $30.00, plus costs. The judgment of the court then recites, “The court on its own motion enters of record payment of said fine of thirty dollars ($30) plus payment of costs herein”. Petitioner then filed his affidavit of appeal and bond. The Municipal Court denied the appeal.

Thereafter, and on the same day, June 16, 1965, petition for habeas corpus was filed in this court.

Thereafter, and on June 22, 1965, there was filed in this court a petition for writ of mandamus to require the judge of the Municipal Court, among other things, to allow and process petitioner’s appeal from the judgment of June 16, 1965.

On June 30, 1965, hearing on the petitions for habeas corpus and mandamus was held by this court, wherein petitioner’s exhibits were offered and received in evidence without objection, and petitioner testified.

The gist of petitioner’s testimony, in addition to being supportive of the above factual résumé of the various proceedings, was that he was not represented by an attorney when he appeared in Municipal Court on April 19, 1965, and that he had not consulted with any attorney, or any one else, prior to his entry of plea of guilty on that date. He testified that neither the city attorney, or the judge of the Municipal Court, advised him as to what his punishment would be, or as to what the limits of his punishment could be before he entered his plea of guilty; that he did not know the maximum punishment provided by the ordinance which he was charged with violating. He stated he thought he was guilty because the police officer had given him a ticket, and, for that reason, he entered a plea of guilty. He testified that he did not know at the time he entered his plea that he could receive a sentence of six months in jail, although he had appeared in Municipal Court at least once before.

It appears from the suggestions filed in the case, which are not controverted, that the maximum penalty provided for the offense with which petitioner is charged, by the municipal code of the City of St. Joseph, is a fine of not less than $1.00 and not more than $500.00, or punishment by imprisonment not to exceed six months, or by both fine and imprisonment. Thus, while the fine of $30.00 is well below the maximum provided, the sentence of six months is the maximum imprisonment provided for the offense with which the petitioner is charged.

Numerous complex legal issues are presented by the two petitions under consideration herein, and what should and normally would be a relatively simple matter, has ■ been complicated almost beyond recognition. However, in the view we take of this case, only one issue need be considered.

Supreme Court Rule 37.77, V.A.M. R. authorizes the filing of a motion to withdraw a plea of guilty, at any time- before judgment is entered, etc. This rule was, in fact, complied with when such motion was filed after the purported judgment of April 19, 1965, had been declared void by the circuit court, and before the re-sentencing of petitioner on June 16, 1965. Thus the motion was properly before the Municipal Court for consideration and called for an exercise of sound judicial discretion by the judge thereof. If such discretion was abused, the ruling of the court can not be allowed to stand.

It appears that by the original judgment of April 19, 1965, the court imposed a fine of $30.00, plus costs, and then entered judgment for six months imprisonment with an unlimited stay of execution. Such stay of execution was clearly beyond the power of the court, and since petitioner was allowed to depart without bond, as required by the clear and unequivocal provision of the rules, or without an order to return at a day certain, it is apparent that the court, at that time, did not in fact contemplate service of such sentence of imprisonment.

While it appears that petitioner’s plea of guilty was not coerced or the result of any pressures or promises, we are mindful that we are considering a young man, who entered his plea of guilty without benefit of advice from counsel, or any one else, and who testified that he entered such plea because, since the police officer had given him a ticket, he presumed he was guilty. Disregarding for the moment the unlimited stay of execution, petitioner’s original sentence involved the maximum term of imprisonment authorized by the city ordinance, and it appears that after the Circuit Court, in response to petitioner’s application, had declared the original sentence void, the Municipal Court refused to allow a withdrawal of the plea of guilty, although petitioner contended that he did in fact have a good defense, and was not guilty as charged; that the court refused to return the money paid as fine and costs, pursuant to the void sentence of April 19, 1965, and proceeded to impose a new judgment, in exactly the same terms as the void judgment of April 19th, but without any stay of execution, which again included the maximum imprisonment authorized. This in a case wherein petitioner was charged with “failure to yield right of way”.

The motion to withdraw the plea of guilty was filed within the time prescribed by the rule, and it does not appear that the city would, in any way, he prejudiced by the passage of time from the original sentence on April 19th, to the ruling on the motion to withdraw plea of guilty on June 16th. This is especially so, in view of the fact that the situation existing on June 16th was the result of the illegal and invalid action of the court before which the petitioner was then appearing. From the foregoing considerations, we conclude that the Municipal Court abused its discretion in denying petitioner’s motion to withdraw his plea of guilty.

It is therefore ordered that the judgment and sentence of-the Municipal Court of the City of St. Joseph, Missouri, entered against petitioner Michael J. Waris on June 16, 1965, be and the same is hereby set aside and vacated, and that the judge of the Municipal Court of the City of St. Joseph, Missouri, is ordered and directed to grant said motion to set aside petitioner’s plea of guilty entered in said court on April 19, 1965, and petitioner is remanded to the custody of the Municipal Court of the City of St. Joseph, Missouri, for the purpose of entering his plea to the charge of “failure to yield right of way” pending against him in said court, and that petitioner be permitted to be released on bond, in normal course, pending the action of said Municipal Court.

HUNTER, J., concurs.

CROSS, P. J., not participating.


text:
    John W. KELLS, (Plaintiff) Appellant, v. PEVELY DAIRY COMPANY, a Corporation, (Defendant) Respondent.
    No. 31822.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.
    Application for Transfer Denied Sept. 13, 1965.

      Gerritzen & Gerritzen, Thomas E. Dowl-ing, Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
    Albrecht & Homire, James L. Homire, Jr., St. Louis, for defendant-respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an appeal by plaintiff, John W. Kells, from a verdict and judgment in favor of defendant. Plaintiff in his petition sought damages for personal injuries, and also property damage growing out of an automobile collision.

Plaintiff testified that on August 25, 1961, he was operating his 1959 Ford Country Sedan Station Wagon in St. Louis, Missouri; that his usual route to work involved a right-hand turn off of Chouteau Avenue onto Mississippi Avenue; that when approximately one-half block west of Mississippi, he was in the east-bound curb lane of Chouteau; that at that time he turned on his right-hand signal; that the right side of his automobile was then eighteen inches to two feet out from the curb and he was going approximately fifteen miles per hour; that he made his right-hand turn into Mississippi, at about five miles per hour, from the southernmost curb lane of Chouteau; that at the time of his turn there were no other motor vehicles to his left going east on Chouteau, and approximately three-fourths of his station wagon was into Mississippi Avenue before the collision occurred; that his station wagon was headed southeast at about a forty-five degree angle; that the right rear corner of his station wagon was struck by the right front corner of defendant’s truck.

The defendant’s driver, Chester Clark, testified that he was driving a Ford ice cream truck eastwardly in the south curb lane of Chouteau at a speed of approximately fifteen miles per hour, and that there was no traffic directly in front of him; that he first saw the plaintiff’s car when it was crossing in front of his path, vertically, and making a southward turn from his left; that the back end of plaintiff’s car moved across some of his lane. He testified that by vertical he meant crosswise, and that his lane of travel was clear until the plaintiff’s car veered in front of him; that plaintiff did not sound his horn or give a warning signal that he was going to turn into the witness’s path; that at the time of the impact his truck was going “very slow” and had “almost completely stopped.” The plaintiff, in effect, conceded this to be true, because he testified that the cost of repairing his station wagon was “something less than a hundred dollars,” and “there wasn’t any visible damage to the defendant’s truck.”

Plaintiff-appellant complains first of the trial court’s action in refusing his offered Instruction No. 1-A on the ground that this instruction contained a separate and distinct charge of negligence on which he was entitled to rely, the negligence being that of carelessly and negligently overtaking and striking plaintiff’s vehicle from the rear.

It should be kept in mind that there was a fairly simple issue to be resolved by the jury in this case. It was up to the jury to decide whether the plaintiff had been driving his automobile eastwardly in the curb lane of Chouteau Avenue immediately before the accident occurred, and further that he was struck while in the process of making a right-hand turn from the curb lane, or whether the plaintiff made a right turn from a position to the left of defendant’s vehicle and not from the curb lane.

At plaintiff’s request the court gave Instruction No. 1. It was a verdict directing instruction, purporting to cover the entire case. The major portion of that instruction is as follows:

“The Court instructs the jury that it is the duty of the driver of a motor vehicle following another motor vehicle to keep a lookout ahead to observe the motor vehicle ahead and its movements and to keep the motor vehicle under control so that it will not run into the motor vehicle ahead should it slow down and turn at an intersection, and to keep the motor vehicle a sufficient distance behind the motor vehicle in front so as to avoid danger in case of a slowing down or turning at an intersection of the motor vehicle ahead.
“You are further instructed that if you find and believe from the evidence that at the time and place in question, plaintiff was operating his automobile station wagon eastwardly along and upon Chouteau Avenue in the southernmost eastbound lane of Chouteau Avenue, and was in the act of turning his automobile station wagon from the southernmost eastbound lane of Chou-teau Avenue to the right to proceed southwardly into Mississippi Avenue, if you so find, and the defendant, Pevely Dairy Company, by and through its agent and servant, Chester Clark, was operating its refrigerated ice cream truck, mentioned in evidence, along and upon Chouteau Avenue behind the automobile station wagon of the plaintiff and was in the southernmost eastbound lane of Chouteau Avenue, if you so find, and that the Pevely Dairy Company, by and through its agent and servant. Chester Clark, did not exercise the highest degree of care in keeping a lookout to observe plaintiff’s automobile station wagon ahead, if you so find said station wagon was ahead of defendant, Pevely Dairy Company’s truck, and the movements of plaintiff’s automobile station wagon or in keeping defendant’s truck under control so that it would not run into plaintiff’s automobile station wagon as it slowed down and turned right at said point mentioned in evidence at the intersection of Mississippi and Chou-teau Avenues, if you so find, and if you further find tht Chester Clark did not exercise the highest degree of care to keep the truck he was driving a sufficient distance behind plaintiff’s automobile station wagon, if so, so as to enable the Pevely Dairy Company truck to avoid colliding with the plaintiff’s automobile station wagon as it slowed down and turned right at said point mentioned in evidence at the intersection of Mississippi and Chouteau Avenues, if you so find, and if you further find that the truck Chester Clark was operating did collide with plaintiff’s automobile station wagon at said point mentioned in evidence while the plaintiff’s automobile station wagon was turning right at the aforesaid intersection, * *

As we view it, the above quoted language fully covered plaintiff’s theory of the case.

Instruction No. 1-A also purported to cover the entire case. It is, in fact, as the trial court stated, largely a duplication of Instruction No. 1. Its real vice consists in the fact that it sought to submit the specific act of negligence of overtaking and striking plaintiff’s vehicle from the rear, and such specific charge of negligence was not pleaded. In the case of White v. Thompson, Mo.App., 176 S.W.2d 53, 57, the court said:

“It is elementary that the instructions submitting the plaintiff’s case must be in accord with the theory of his petition, and that instructions which authorize a recovery upon a ground not relied on in the petition are fatally erroneous.”

We are of the opinion that the trial court’s action in refusing this instruction was proper under the circumstances.

Plaintiff’s next complaint relates to Instruction No. 2 given on behalf of defendant and which dealt with the question of plaintiff’s contributory negligence.

The plaintiff is complaining that the instruction could be construed to mean that if the plaintiff had been driving in the lane next to the curb and in front of defendant’s truck, then a recovery for the defendant would still be authorized. However, the instruction clearly requires a finding that one of the facts necessary to support a verdict for the defendant was that the curb lane in front of defendant’s vehicle was clear of traffic. The instruction requires a further finding that the plaintiff drove in front of defendant’s vehicle when the defendant’s vehicle was in such close proximity that the danger of collision was imminent. The instruction cannot be construed as appellant urges without ignoring its plain language.

The instruction in the instant case is modeled after one given in the case of Tucker v. Blankenmeier, Mo., 315 S.W.2d 724. In that case the court criticized the instruction and remanded the case because it failed to include a requirement that the plaintiff drove into the path of the defendant without giving a reasonable and adequate warning of his intention to do so. In the instant case the instruction clearly requires a finding that the plaintiff failed to give a reasonable and adequate warning of his intention to drive into the lane in front of the defendant’s truck. In our opinion the complained of instruction contains no error prejudicial to plaintiff.

Plaintiff’s third point is that the verdict is against the weight of the evidence. There is, perhaps, no more firmly established doctrine than that on appeal from a judgment rendered on a verdict of a jury an appellate court is not authorized to weigh the evidence. Whether a jury’s verdict is against the weight of the evidence is a question for the trial court alone. Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917.

Plaintiff also contends that the trial court erred in overruling his motion for a directed verdict. Plaintiff’s case rested entirely upon his own testimony. The rule is well settled that the weight and credibility of the testimony of any witness is for the trier of the facts who may disbelieve any witness even when such witness’s evidence is uncontradicted. Laughlin v. Boatmen’s National Bank of St. Louis, Mo., 163 S.W.2d 761, 764. The contention is without merit.

Plaintiff states his final contention is as follows: “The court erred in refusing to permit further cross-examination of the witness, Chester Clark, on the issue of his credibility with respect to the so-called exchange of insurance information at the scene of the collision since defendant’s counsel stated defendant had no insurance and therefore it was impossible for the drivers to have exchanged insurance information.”

On his direct examination Clark was asked if plaintiff, at the scene of the accident, said “anything else to you?” The answer was: “Not that I recall. He may have, but I don’t recall anything. We took license numbers, and exchanged insurance companies * * The transcript shows that the witness was cross-examined at length and when plaintiff’s counsel said, “that is all,” the witness was excused and the court then adjourned until the next morning. It was then that plaintiff’s counsel made his request. The witness Clark was not present.

The law is well settled that the extent and scope of cross-examination in a civil action is discretionary with the trial court and its rulings in regard thereto will not be disturbed unless an absence of discretion is clearly shown. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 807. To have granted plaintiff’s counsel’s request would have involved a discussion of liability insurance, a matter which should not have been injected into the case. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463. We certainly cannot hold that the trial court abused its discretion in this instance.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is affirmed.

WOLFE, P. J., RUDDY, J., and J. MORGAN DONELSON, Special Judge, concur.


author: RUARK, Presiding Justice.

text:
    Vestal LANGDON, Deceased, by Marie Langdon, Administratrix, and Marie Langdon, Individually, Plaintiff-Respondent, v. Jeremiah KOCH, Defendant-Appellant.
    No. 8383.
    Springfield Court of Appeals. Missouri.
    July 17, 1965.

      Orville C. Winchell, Lebanon, for defendant-appellant.
    James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiff-respondent.
   RUARK, Presiding Justice.

This is a court-tried suit for damages to an automobile originally instituted by Vestal Langdon, who designated himself owner, but thereafter maintained by Marie Lang-don as administratrix of Vestal Langdon’s estate and in her own right as an individual.

The occurrence: A “left turn” collision. The front of plaintiff’s car struck defendant’s car on the left side at the extreme rear. Both cars had been headed west on Highway M.

The scene: Defendant’s home and driveway are on the south side of Highway M, and about one hundred fifty feet west of the intersection of Highway M with County Road CC. Highway M is blacktop, about twenty-two feet wide. It slopes downhill to the west from a “rise” which is probably two hundred fifty feet back east of the intersection with CC. At the entrance to defendant’s driveway are two concrete posts set so as to allow a clearance of approximately a foot on each side of an entering car. This necessitates a rather sharp turn.

The incident occurred at 5:IS P.M., May 13, 1963. It was a misty or drizzly day. The road was wet and there was enough falling moisture to require the operation of windshield wipers. Gary Langdon (age sixteen or seventeen) had borrowed his parents’ car and was driving w;est on Highway M. According to his story, he first noticed the defendant’s car ahead of him when he was about half-a-quarter east of the CC intersection. He was then about two hundred feet behind defendant and traveling about thirty-five miles per hour with his parking lights on. When defendant was “about to cross” the CC intersection he was about one hundred fifty feet behind defendant’s car. When he was fifty to seventy-five feet west of the intersection he pulled out to the left and speeded up to about forty miles per hour preparing to pass. He estimated that defendant’s car was then traveling fifteen to twenty miles per hour. He testified that when he got within about ten feet of the rear of defendant’s car, it made a sharp turn over onto and across the left side of the road, completely blocking that side. He (Gary) immediately attempted to swerve back to the right but was unable to avoid the collision, which took place at about the center of the road. The left front of plaintiff’s car struck the left side of defendant’s car at the extreme rear. Gary says he did not see any left-turn signal either by signal light or by arm.

Defendant testified that as he approached to within a couple car lengths of the CC intersection he looked to the rear and saw no other vehicle. “It was raining at that time, and the rain on the mirror, and I could see up to where the road goes over the rise * * Thereafter, he crossed CC at probably twenty miles per hour, turned on his left-turn signal, observed the green light blinking, and gradually slowed down so that his speed was ten to twelve miles per hour at the point where he attempted to turn into his driveway. He did not look again to his rear until he commenced turning his wheels to the left and started at a sharp angle across to his driveway on the south side of the road. As he thus turned left, he looked to the rear and saw plaintiff’s car “twenty-twenty-two feet” behind him, and it was too late to avoid the collision.

The findings of the court were:

“The Court finds from the evidence that Plaintiff’s automobile was damaged as a result of the accident in the sum of $719.74. As Plaintiff had lent her car to her son, and as no agency-principle or joint venture-principle was involved, the defense of contributory negligence is not available to the Defendant.
“The Court finds from all the facts and circumstances in evidence that the act of Defendant, in making a left turn into his driveway, without having first ascertained that there were no vehicles behind him was negligence and that such negligence was the proximate cause of the collision in question. The Court finds that a driver of a motor vehicle intending to make a left turn has the duty to determine that such turn can be made without danger to normal overtaking traffic, and that the Defendant did not do so under the facts in this case.”

Defendant has appealed.

The conduct of Gary, driver of plaintiff’s car, was not such as to endear him to a seeker of justice. He was driving at least thirty-five miles per hour in the mist or rain in a zone with a posted speed limit of twenty-five miles per hour. He admittedly gave no signal or warning of intention to pass. But appellant concedes that his possession of the automobile was a bailment and no question of agency or incompetency is involved. Therefore, contributory negligence is not involved. Appellant nevertheless contends that plaintiff did not show that defendant’s acts were the proximate cause of the collision and consequent damage. The burden of his argument is that “the evidence clearly established” that the defendant made sufficient observation to the rear before making his turn.

It is true, as appellant states, that one is not required to keep a constant lookout in all directions at the same time. This we have said many times. But the law imposes upon the motorist who intends to make a left turn across a highway the duty to use the highest degree of care to ascertain that such movement can be made with reasonable safety. That duty of necessity requires appropriate observation to the rear in order to see whether there are following or overtaking vehicles in the vicinity, and in such position, and traveling at such speed, as to make such turn unsafe under the circumstances as they reasonably appear. “Appropriate observation” necessarily implies a look or observation at a time and place which comports with the contemplated act and which will be reasonably efficacious in informing of the probability of danger. Nor is the driver excused from fulfilling that duty because the drivers of other vehicles may be negligent. In this situation, one may not take for granted that there won’t be other drivers violating the rules of the road. These things were discussed, with appropriate citations, in our recent case of Reed v. Shelly, Mo.App., 378 S.W.2d 291. We see no need to reiterate and re-cite.

The defendant’s last look to the rear was, by his own admissions, too late. It was, therefore, the same as no look. Defendant says his other (first) look to the rear was when his car was a car-length or two east of the intersection with CC. He says he saw nothing on this misty or rainy day. The trier of the faet may or may not have believed that defendant took this first look; but, if he did so, obviously it was an “ineffectual” look. One look was an inch in front of the snout and the other an inch behind the tail of the carcass. Neither of these reached the meat of the actual necessities in this case; for there was a car behind him, and that car did strike him as he made his turn. So if defendant took the “looks,” one was too early, too far back, or too casual, and one was too late. Neither of them discharged his duty to make appropriate observation to the rear before making his left turn sharply across the road. We rule against appellant on this point.

We also have the question of proof of damage to plaintiff’s automobile.

Plaintiff’s witness Alexander is parts manager for the Chevrolet garage. He identified an exhibit designated as “the repair bill,” which contained a long list of items for labor, parts, and accessories supplied in repair of plaintiff’s 1960 Chevrolet, with separate charges opposite each item, totaling (with tax) $728.74. He testified that the entries on this exhibit were made by him in his own writing and as a part of his job in the regular course of business. The entries were made as the parts were “issued out to the job.” After the repair job was completed, this final repair bill went on “to the girls in the office.” The witness did not himself inspect the car and he did not know whether the repairs were needed as a result of the accident in question. He did testify that the charges made on the exhibit were reasonable. The appellant contends that the exhibit was not admissible because it did not conform to the requirements of the Uniform Business Records as Evidence Act and was hearsay, but his real argument is that it was not the best evidence and that it did not prove whether these repairs were a restoration to original condition or a betterment.

We think Alexander was a “qualified witness” under Section 490.680, RSMo 1949, V.A.M.S. He made the record himself in the regular course of business and the entries were made at the time items of “repair” were made. The trial court has considerable discretion in determining whether a satisfactory foundation has been laid for the admission of business records. State v. Weindorf, Mo., 361 S.W.2d 806; Hancock v. Crouch, Mo.App., 267 S.W.2d 36. And it must be borne in mind that the purpose of the Uniform Business Records as Evidence Act is to avoid many of the (previous) overly-technical rules in regard to the admissibility of such records. Adler v. Ewing, Mo.App., 347 S.W.2d 396, 401, and cases cited. We think that the exhibit and the testimony of witness Alexander sufficiently established that certain repairs and replacements were made and that the cost thereof was reasonable, and that such evidence was admissible as tending to support plaintiff’s claim of damage; but it was not, in itself, sufficient to show or prove that plaintiff suffered such amount of damage on account of this accident.

Plaintiff’s petition declared that the difference in the market value immediately before and immediately after the accident was $719.74. It is the general rule in Missouri that where an automobile or other property having a readily ascertainable market value suffers substantial injury, the proper measure of damage is the difference in the reasonable market value of the article immediately before and immediately after the injury. Hood v. M. F. A. Mutual Insurance Co., Mo.App., 379 S.W.2d 806, and cases cited at Footnote 7, p. 812; Barnes v. Elliott, Mo.App., 251 S.W. 488 (4) ; see also West’s Missouri Digest, Damages,

There may be other items of loss, such as cost of preservation and diminution of damage and loss of use, which would he added to the total damage suffered by the owner (see Gilwee v. Pabst Brewing Co., 195 Mo.App. 487, 193 S.W. 886), but there was no such contention in this case. There may be repairs which effect a complete restoration to former value (Southwestern Bell Telephone Co. v. Rawlings Mfg. Co., Mo.App., 359 S.W.2d 393), and there may, •of course, be repairs or supplements which substantially increase the market value (see Conner v. Aalco Moving and Storage Co., Mo.App., 218 S.W.2d 830; General Exchange Insurance Corporation v. Young, Mo.App., 206 S.W.2d 683 [10,11], aff’d 357 Mo. 1099, 212 S.W.2d 396). The cost of repairs or restoration is competent evidence (Johnstone v. Home Ins. Co. of New York, Mo.App., 34 S.W.2d 1029 [6]; Brown v. Pennsylvania Fire Insurance Co., Philadelphia, Mo.App., 263 S.W.2d 893, 899); and, where there are additional facts (in reference to the condition of the car, for instance) to support such, the difference in market value before and after value may be found or inferred. Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52; Oberhaus v. Eichwald, Mo., 303 S.W.2d 29; Blanke v. United Rys. Co., Mo.App., 213 S.W. 174; Helton v. City of St. Joseph, Mo.App., 340 S.W.2d 198.

In this case there was no evidence as to the market value of the automobile, either before or after the injury. Respondent contends that the deficiency was supplied by plaintiff who testified (without objection) that the car was titled in both Ves•tal (her deceased husband) and herself, .and that she believed the amount of the repair bill was $728.74 as shown by the •exhibit. “Q. And, in your opinion, was -the damage to that vehicle in that amount? A. Yes.” On cross-examination she testified that her husband attended to it (presumably seeing to the repairs of the car). There is no evidence, or indication from the evidence, that she was familiar with the repairs that were made, or that she knew anything about the condition of the car either before or after the accident, or that she had ever seen the car between the time of the wreck and the repairs. We do not know whether she had ever driven it either before or after. The only thing which she appeared to know about the car was that it had not previously been involved in a wreck.

It is the rule in Missouri and a great many other states that an owner may testify as to the reasonable value of an article of personalty which has been damaged or destroyed without further qualification. State ex. rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 72; Keeton v. Sloan’s Moving and Storage Co., Mo.App., 282 S.W.2d 194(10); West’s Missouri Digest, Evidence, The weight and value of such testimony is for the trier of the fact. 3 Wigmore, Evidence (3rd ed.) § 716, p. 48; 20 Am.Jur. Evidence, § 892, p. 751; State ex. rel. Terry v. Ace Storage & Moving Co., Mo.App., 135 S.W.2d 363(9). But the qualification of the owner as a witness to value does not rest on the fact that he has legal title, but rather on the fact that ordinarily the owner knows the property intimately and is familiar with its value. 32 C.J.S. Evidence § 546(116), p. 434; Finn v. Indemnity Co. of America, Mo.App., 297 S.W. 175, 176; Winthrop Products Corp. v. Elroth Co., 331 Mass. 83, 117 N.E.2d 157. In Hood v. M. F. A. Mutual Insurance Co., Mo.App., 379 S.W.2d 806, supra, at 812 we said, through Stone, J., that judicial liberality in permitting an owner to testify as to market value should not be treated as an unrestricted license to engage in guesswork. We are extremely doubtful as to whether Mrs. Langdon showed herself competent to testify as to value (which she did not do), even though she was a co-owner. We feel quite sure that the evidence did not show such knowledge and familiarity as to qualify her to testify concerning the extent and amount of the damage suffered in the wreck. See Le Brun v. Richards, 291 P. 825, 72 A.L.R. 336, 343; Barron v. Phelps, Ky., 238 S.W.2d 1016, 1018.

This was a 1960 automobile. The collision occurred in 1963. There is no evidence as to the condition of the car before the wreck except the testimony that it had never been in a wreck. We do not know how many miles it had traveled, how worn out it was, what parts, if any, were in need of replacement, nor what its general condition was. There is no evidence that all the things done to recondition the automobile were made necessary by the collision with the defendant. The plaintiff was entitled to the equal in restoration, but she was not entitled to have worn out or previously broken parts or accessories replaced by new ones at the defendant’s expense. She was not entitled to a new car in order to replace an old one. She was not entitled to profit or enrichment because of the collision. She was entitled to recover the difference in market value before and after, and there was no satisfactory evidence as to what such difference amounted to.

In this situation we believe that plaintiff has established liability and that such issue was “fully developed and fairly tried” (Hufft v. Kuhn, Mo., 277 S.W.2d 552), and is “not free from doubt” (Caen v. Feld, Mo., 371 S.W.2d 209). We believe that the ends of justice require that the finding of liability should be sustained but that the case should be remanded for trial on the issue of damages only.

Accordingly, the case is reversed and remanded for retrial of the issue of damages only.

STONE and HOGAN, JJ., concur.

      . See Supreme Court Rule 83.13, V.A.M. R.; Curtis v. Fruin-Colnon Contracting Co., Mo., 363 Mo. 676, 253 S.W.2d 158; Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131; Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319; Spalding v. Robertson, Mo., 357 Mo. 37, 206 S.W.2d 517.