Summary
holding that the passenger-instructor is responsible for the safe operation of the vehicle
Summary of this case from Winningham v. Swift Transp. Co., Inc.Opinion
Opinion delivered June 8, 1950.
1. — Appeal and Error. Appellate courts will review a case only on the theory presented in the trial court.
2. — Appeal and Error. One cannot abandon the theory on which his case was tried and have it reviewed on an altogether different theory on appeal.
3. — Trespass. A trespass involves the idea of force.
4. — Trespass. Trespass lies whenever an injury to plaintiff's property, against the will of the plaintiff, is the immediate result of a forceful, unlawful or wrongful act, not in a criminal sense, by the trespasser, the consequences of which make the act tortious.
5. — Trespass. Where owner of automobile permitted his son to use the automobile but instructed him not to let any one else drive the automobile, and the son disregarded the owner's instructions and attempted to teach a girl companion how to drive the automobile, and she did not know of the owner's instructions or that the son was not the owner of the automobile, she was not guilty of actionable trespass in driving the automobile and was not liable in trespass for damage to automobile.
6. — Property. Possession of personalty raises a presumption of ownership.
7. — Trespass. In order to state a cause of action in trespass, a petition must allege that injury complained of was direct and immediate on act of defendant and not merely consequential.
8. — Justices of the Peace. Where plaintiff elected to plead in action in magistrate's court, though formal pleadings were not required, he was bound by the pleadings to the same extent as if the action had originally been filed in circuit court.
9. — Appeal and Error. Where plaintiff proceeded in the trial court on theory of negligence, he could not proceed in the Court of Appeals on theory of trespass.
10. — Automobiles. One who drove automobile 50 to 60 miles an hour along boulevard while approaching intersecting highway was not negligent as a matter of law, in absence of any evidence of congested traffic.
11. — Automobiles. Where owner of automobile permits another to drive the automobile but remains in control, the driver is no more than the alter ego of the owner and the driver's acts are in effect just as much the acts of the owner as though the owner were the one actually operating the automobile.
12. — Automobiles. It is possible for instructor who is teaching another to operate an automobile, to be negligent and for the pupil, though following the instructor's instructions, to be free from negligence.
13. — Appeal and Error. Where the entire evidence created a question of fact for the jury, Court of Appeals on appeal could not interfere with the verdict of the jury by weighing the evidence itself.
14. — Appeal and Error. Where plaintiff brought action in magistrate's court against defendant for damages to plaintiff's automobile which was damaged while being driven by defendant who was being taught to drive by plaintiff's son, and defendant filed a third party petition against plaintiff's son, and there was no verdict in magistrate's court on third party petition, and on appeal to circuit court plaintiff's son won on the third party petition, and defendant did not appeal, alleged error in filing of the third petition in magistrate's court was not reversible error which would entitle plaintiff to reversal of judgment in favor of defendant.
15. — Appeal and Error. Alleged error of trial court in failing to give certain instructions offered on behalf of third party defendant, could not be taken advantage of by plaintiff on appeal from judgment for defendant.
16. — Trial. Requested instruction that plaintiff had a right to sue either or both defendant or third party defendant, and that it was no defense to defendant that plaintiff did not also sue the third party defendant, who was the plaintiff's son, and that the fact that plaintiff did not also sue the third party defendant did not give defendant any valid claim against the third party defendant was properly refused as being an abstract statement of the law and slightly argumentative.
17. — Trial. Requested instruction that neither difference in age, sex, station in life, or relationship of any of the parties should be permitted to influence the verdict, and that all persons are equal before the law and are entitled to the same careful and fair consideration of their case, and that jury was to be governed solely by facts and the application of the law as given in the instructions, was properly refused as being an abstract statement of the law and slightly argumentative.
Appeal from the Circuit Court of Mississippi County. — Honorable R.B. Oliver III, Judge.
AFFIRMED.
J. Grant Frye, Pro Se, for Appellant.
1. The gist of appellant's action is in trespass because of the invasion by the respondent of his possession of his automobile, and the damage to it during such invasion for which respondent is liable. Mawson v. Vess Beverage Co. (Mo. App.) 173 S.W.2d 606 (land); Thrasher v. Hodge, (Mont.) 283 P. 219 (land); Ellis v. McDonald (1A) 121 So. 239 (personalty). 2. The respondent had no right to the possession of appellant's automobile; and the taking of possession of it by her constituted her a trespasser. It is only where a person has a right to do an act that the question of negligence in doing it becomes material. If a person has a right to have the property and then negligently injures it, he is liable for negligence; whereas, if he has no right to the possession of it, but having it injures it, he is liable in trespass for the damages. Chickering v. Lincoln County Power Co. (Me.) 108 A. 460. 3. Even though the petition, in addition to alleging a cause of action in trespass, further alleges that the respondent was negligent, the cause of action still is in trespass and the allegation of negligence is surplusage. The case was tried by appellant on the theory of trespass (Tr. 31, 66, 67, 70) and not on the theory of negligence. Emmons v. Quade, 176 Mo. 22, 75 S.W. 103. 4. The fact that the petition in this case states that the acts of respondent constituting the trespass were coupled with acts of negligence of respondent does not convert the action from trespass to one for negligence, and appellant was not required to show negligence. Such allegations were surplusage. Betz v. Kansas City Home Telephone Co., 121 Mo. App. 473, 87 S.W. 207; Kerby v. Perr Pipe Line Co., (Mo. App.) 4 S.W.2d 857; Van Alstyne v. Rochester Telephone Co., 296 N.Y.S. 726. 5. It is immaterial in this case with what intent the respondent drove the car or took it from the appellant's son as the recovery for damages for trespass is not dependent upon the intent with which the act is done, but in trespass it is the result of damages from such act which fixes liability. In this case the result of her actions damaged the property and for which damages she is liable. Houck v. L.A. Tucker Truck Lines, (Mo. App.), 131 S.W.2d 366 (real estate); Shell Petroleum Co. v. Liberty Gravel Sand Co., 128 S.W.2d 471. 6. It is immaterial in this case that respondent may have had no evil intent or that she may have been aided and abetted by appellant's son as the intent of the party committing a trespass is immaterial except where punitive damages are also sought. Dyer v. Tyrrall, 142 Mo. App. 467, 127 S.W. 114 (land case). 7. It is not incumbent upon appellant to show either negligence or intent of the respondent but it is only necessary to show the invasion and the taking possession of his property by respondent without appellant's consent and damages to it while in her possession. Fordney v. King County, (Wash.) 115 Pac.2d 667, Authorities 5 and 6, supra. 8. Even though it might be said that the conduct of respondent in receiving the car from appellant's son and driving it without his permission did not amount to such substantial interference with appellant's possession thereof as to constitute conversion, nevertheless, it constituted an intermeddling by her with appellant's property amounting to trespass; and because of the resulting damage to him thereto, it gives appellant a right of action for damages because of her trespass. Zaslow v. Kroenert, (Calif.) 176 Pac.2d 1. 9. It is wholly immaterial that in the wrongful taking of possession of appellant's automobile, the actions of respondent then and thereafter were as agent for John, or at his direction, and even without benefit to respondent. Fordney v. King County, (Wash.) 115 Pac.2d 667. 10. In addition to the duty of the court to have directed a verdict for appellant on liability of respondent for damages to appellant's automobile while in possession of her as a trespasser, the court should have on a further ground directed a verdict in favor of appellant on the liability issue on the evidence adduced by respondent herself to the effect that she drove the automobile, completely inexperienced, on a highway of the state, and into an intersection with another of its highways, at a speed of 40 or 50 miles per hour, knowing well she had to make a turn at such highway, and not having made up her mind which way to turn. Such facts constitute negligence as a matter of law; and after refusing to submit a liability issue in trespass, it was the duty of the court to direct a recovery by appellant on respondent's negligence instead of giving her Instruction "B" (Tr. 74); which instruction was also erroneous in submitting the negligence issue to a jury instead of leaving it solely to the court as a matter of law under respondent's own testimony. Missouri Pacific Ry. Co., v. Moseley 57 F. 921 6 CCA 641, (8th Circuit); Willing v. Chicago B Q Ry. Co. (Mo. App) 121 S.W.2d 204, (affirmed 345 Mo. 705, 137 S.W.2d 430.); Luckel v. Century Building Co. 177 Mo. 608, 76 S.W. 1035; Sears, Roebuck Co. v. Scroggins 140 F (2) 718 (Court of Appeals, 8th Circuit); Matthew v. Wabash Railway Co. 115 Mo. App. 468, 78 S.W. 271 (affirmed 199 U.S. 605, 50 LEd 329 26 S.Ct. 752); Gentilli v. Dimaria (Mo. App.) 89 S.W.2d 93. 11. Appellant had the right to sue respondent alone, even though appellant's automobile was destroyed by the concurrent negligence of appellant's son (bailee) and the respondent. Sibley et ux. v. City of Sunny Side (Wash.) 35 Pac.2d 56; Grand Rapids Indiana Ry. Co. v. Resur, (Ind.) 118 N.E. 259; Paccos v. Rosenthal 137 Wn. 423, 242 P. 651, 43 ALR 142; Commercial Banking Co. v. Philadelphia Transportation Co. 162 Pa. Super 158, 56 Atl. (2) 344. 12. Instruction 1, offered by appellant, hypothesized facts which the respondent conceded, except for the damage element. It contained the elements of an action for trespass and resulting damage. It was erroneous of the court to refuse such instruction. Authorities 5, 6, and 7, supra. 13. The excluded evidence offered by appellant to the effect that he had given his son John instructions not to permit anyone else to drive the automobile (Tr. 47) should have been admitted, although cumulative, as such showed respondent to be a trespasser. Authorities 5 and 7, supra. 14. The verdict is inconsistent and contradictory in that the sole defense (insufficient in law although it was) of respondent was that her acts were caused either by the wilful or negligent instructions from appellant's bailee (his son John), and a verdict against John would be necessary requirement to a verdict in favor of respondent under her won theory. Inconsistent verdicts are erroneous. Simmons v. Perkins 193 S.W.2d 737 (Texas); Shaw v. Porter 190 S.W.2d 396 (Texas); McCall v. Alpine Telephone Co. 183 S.W.2d 205, 184 SW (2) 830 (Tex.); Stevens v. Oberman Manufacturing Co., 79 S.W.2d 516, Mo. App.; Wright v. Hannon Evritt, (Mo. App.) 81 S.W.2d 303. 15. The third party proceedings in the Magistrate Court are unauthorized by Section 3811.201 Mo. R.S.A. (Laws 1945, p. 765, Sec. 101) of the Magistrate Code, or by any other provisions thereof; and appellant's objection to the third party proceedings and his motions to strike same should have been sustained. Section 847.2 Mo. R.S.A. (Laws 1943, Page 353, Section 2); Section 2811 Mo. R.S.A. et seq. (Laws 1945, page 765, Section 1, et seq.); State ex rel. Jensen v. Sestric (Mo. App.) 216 S.W.2d 152. 16. The Civil Code (Selection 847.2 Mo. R.S.A. et seq.; Laws 1943, page 353, Section 2 et seq.), insofar as it prescribes trial practice, governs only circuit courts; and Section 847.20 thereof governs trial practice only in cases originating in the circuit courts. Magistrate Code of Missouri, Section 2811.201 Mo. R.S.A. (Laws 1945, page 765, Sec. 101); Civil Code of Missouri, Section 847.2 Mo. R.S.A. (Laws 1943, page 353 Sec. 2 et seq.); State ex rel. Jensen v. Sestric (Mo. App.) 216 S.W.2d 152. 17. The sections of the Magistrate Code (Section 2811.238 Mo. R.S.A.; Laws 1945, Page 765, Section 138) providing for a trial de novo in the Circuit Court on appeal from the Magistrate Court has reference solely to trial procedure, and does not incorporate by reference Section 847.20 Mo. R.S.A. (Laws 1943, page 353; Section 20). Section 2811.238 Mo. R.S.A. (Laws 1945, Page 765; Section 138); Section 847.20 Mo. R.S.A. (Laws 1943, page 350, Section 20); State ex rel. Jensen v. Sestric (Mo. App.) 216 S.W.2d 152. 18. Section 2738 Mo. R.S.A. governs appeals from the former justice of the peace courts to the Circuit Court. It is of substantially the same language and is of the same legal effect as Section 2811.238 Mo. R.S.A. (Laws 1945, Page 765, Section 138) governing appeals from the Magistrate Courts. Under Section 20 of Article V of the Constitution of Missouri, the law governing appeals from the Magistrate Courts follows the rule formerly governing appeals from the justice of the peace courts to the Circuit Courts since there has been no legislative enactment subsequent to and authorized by such Section 20 of Article V of the Constitution of Missouri. Thus the jurisdiction of the Circuit Court in this cause, under the construction given such Section 2738, was derivative only; and on such appeal the circuit court had no jurisdiction to entertain the third party proceedings. Green v. Castello 35 Mo. App. 127; Evans v. Freudenberg, (Mo. App.) 136 S.W.2d 414; State ex rel. South St. Joseph Town Co. v. Mosman 112 Mo. App. 540, 87 S.W. 75; Sounders v. Scott 132 Mo. App. 209, 11 S.W. 874; Lively v. Munal-Jones Lumber Co. (Mo. App.) 194 S.W. 841; State ex rel. Wholey v. Porterfield 221 Mo. App. 666, 283 S.W. 459; State Bank of Sugar Creek v. Anderson 225 Mo. App. 118, 36 S.W.2d 138. 19. The jurisdiction of the Circuit Court in the appeal herein was derivative; and even though third party proceedings might be sustained in causes originating in the Circuit Court, under such circumstances as in the case at bar, still, since the Magistrate Court had no jurisdiction to entertain the third party proceedings, the Circuit Court on appeal derived none. Hence appellant's objection to the third party proceedings in the Circuit Court should have been sustained. Authorities 18, supra. 20. There is no authority given under Section 847.20 Mo. R.S.A. (Laws 1943, Page 353, Sec. 20) of Civil Code for the so-called third party proceedings attempted and permitted in the case at bar. United States v. Jollimore 2 Fed Rules Dec. 1948, John N. Price Sons v. Maryland Casualty Co., 2 Fed Rules 408. 21. On the face of the proceedings, including the third party proceedings, the appellant's objection to the third party proceedings should have been sustained in that respondent's third party petition against John did not state a cause of action against John in favor of respondent under the theory (a) either that respondent was not liable to plaintiff, or (b) that being liable to appellant, then John was liable to respondent. As to (a): If respondent was not liable to appellant, then there could be no liability of John to respondent. As to (b): If respondent was liable to appellant, then she couldn't recover against John on her third party petition because it could only be upon the theory that John negligently said or did things that accentuated her negligence or trespass; and such facts on her part would be contributory negligence by her insofar as her cause on her third party petition against John was concerned. Hence on the face of the record and the proceedings, whatever theory respondent chose there could not have been any recovery by her against John. She stated no cause of action against John. Thus, for this further reason, the objection of appellant to such third party proceedings should have been sustained as being only embarrassing and harassing to him and confusing to the court and jury. Section 847.16 (b) Mo. R.S.A. (Laws 1943, page 353, Section 16), State ex rel. McClure v. Dinwiddie (Mo.) 213 S.W.2d 127. 22. Since John received a verdict in his favor in the Magistrate Court, and respondent did not appeal therefrom, he was completely out of the case in the Circuit Court; and the trial court erred to appellant's prejudice in holding that John was still a party, as such third party proceedings embarrassed and harassed appellant and confused the jury. Roberts, Johnson Rand Shoe Co. v. Joulson 96 Mo. App. 698, 70 S.W. 931. The third party petition against John does not state a cause of action for contribution on the theory that respondent and John were joint tort feasors, since there was no joint justment against them. Section 3658 Mo. R.S.A. State ex rel. McClure v. Dinwiddie (Mo. 213 S.W.2d 127. 24. Appellant had a right to decline to amend his petition so as to state a cause of action against his son John, and upon his failure so to amend, the third party proceedings were an embarrassment and vexation and were prejudicial to appellant and since respondent stated no cause of action against John it was error to permit the proceedings to continue, and it was error to instruct the jury thereon and to submit issues between respondent and John. The court abused its discretion in permitting the proceedings. Section 847.20 Mo. R.S.A. (Laws 1943, page 353, Sec. 20); Section 847.16 (b) Mo. R.S.A. (Laws 1943, p. 353, Sec. 16); State ex rel. McClure v. Dinwiddie (Mo.) 213 S.W.2d 127. 25. The third party petition (Tr. 10) alleged that John "offered to teach" respondent to drive the automobile of appellant, and "following the orders of the said John was caused to run said automobile . . . into a ditch, due to the carelessness and negligence of the orders of the said John . . . that said damages was due to the negligence and carelessness . . . of John . . . and not due to any negligence on the part of" respondent. Such does not state a cause of action of respondent against John under any legal theory, and for that further reason, the proceedings were unwarranted on the face of them, and they embarrassed appellant, confused the jury, prejudiced appellant's rights, and prevented him having a fair trial. Sec. 847.16 (b) Mo. R.S.A. (Laws 1943, p. 353, Sec. 16). 26. It was embarrassing, confusing, and highly prejudicial to appellant for the third party proceedings to be permitted in the suit and such should not have been allowed. Section 847.156 (b) Mo. R.S.A. (Laws 1943, Page 353, Section 16). The action of the court in giving the jury the three forms of verdicts submitted (Tr. 77) was erroneous and prejudicial against appellant in that the furnishing of such forms, together with the customary oral charges and specific oral direction (Tr. 67) to use one of the forms submitted, coerced the jury into the position of being required to find against John if it found against appellant; and, on the converse, to find in favor of appellant if it found in favor of John; neither of which propositions logically followed. Authorities 20 to 26 inclusive, Supra. 28. Instruction "C" (Tr. 75) given at respondent's instance, was erroneous not only for the reasons hereinabove mentioned but for the further reason that thereunder, if the jury found a verdict in favor of appellant and against respondent it must find against John in like amount, which places a burden upon the jury to find against John as a condition to finding in favor of appellant, when there were no pleadings and no evidence under any theory warranting a recovery against John. Such an instruction is not only an erroneous declaration of the law, but is erroneous as being beyond the pleadings and the evidence. Neal v. Curtis Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. 29. The court abused its discretion in not giving Instruction 3, (Tr. 72) offered by appellant, in view of the difference in age, position, sex, and other circumstances of the parties, especially since the jury was not otherwise properly instructed on the issues involved. Klinginsmith v. Mutual Benefit Health Accident Assn. 228 Mo. App. 229, 64 S.W.2d 705. 30. The court erred in refusing Instruction 2, (Tr. 71) offered by appellant, as it correctly stated the law of the right of appellant to sue either his immediate bailee (John) or a third party (respondent) damaging his property during the bailment; and it would have clarified to some extent the confusion with which the jury was confronted by the various erroneous instructions (B, C, and D) given at respondent's instance. Authorities 11 Supra. 31. Instruction "B" (Tr. 74) given at respondent's instance, was highly prejudicial to appellant in that it exculpated respondent of any liability to appellant if the damage to the automobile occurred during her trespass thereto and if such damage during her trespass was caused by the negligence of John. It is contrary to the law imposing liability on trespassers for damages and losses to the owner occurring during and incident to the trespass. Authorities 2, 3, 5, 6, 7, and 8 Supra. 32. Although Instruction "B" (Tr. 84) attempts to exclude respondent's negligence, yet on the face of it the instruction is bottomed on hypothesized facts (whether or not shown from the evidence) from which the jury would be compelled to find, as a matter of law if properly directed, that respondent was negligent. The concluding phrase thereof that it might find that the acts ascribed to respondent did not amount to "any negligence on the part of the defendant (respondent)" is confusing and conflicting and also constitutes a contradiction on the face of the instruction. City of Gallatin ex rel. Dixon v. Murphy (Mo. App.) 217 S.W.2d 400; Hensley v. Dorr (Mo. App.) 202 S.W.2d 553. 33. Instruction "B" (Tr. 74) given at respondent's instance was erroneous as being in contradiction to Instruction "C" (Tr. 63) given at appellant's instance, and such confused the jury to appellant's prejudice. Mott v. Chicago R.I. P. Ry. Co., (Mo. App) 79 S.W.2d 1057; Tunget v. Cool (Mo. App.) 84 SW (2) 970. 34. Instruction 4 (Tr. 73) was offered by John only after the court had refused to give (Tr. 67) appellant's Instructions 1, 2 and 3 (Tr. 70-73). Appellant was prejudiced by the refusal of Instruction 4 in that by Instructions "A" and "B" (Tr. 74-75) the jury was directed to find against John it it found against respondent; and had Instruction 4 been given, the jury might have followed the law therein, regardless of who may have offered it, and have completely exculpated John and thereby have removed the obstacle of being required to find a verdict against John if it found a verdict against respondent, as it was required of the jury by her given Instruction "B" and "C". Mollman v. St. Louis Public Service Co. (Mo. App.) 792 S.W.2d 618. 35. Appellant is warranted in complaining that the court erred in not giving Instruction 4 offered by John (Tr. 73) in that it was bottomed on the evidence, correctly stated the law, and since the petition and evidence were both broad enough to warrant the submission of the negligence issue, and especially after the refusal of the court to give Appellant's Instruction 1, bottomed on bailment to John and trespass by respondent, even though Instruction 4 was offered at the instance of John instead of appellant. It would have clarified the issue, despite the third party proceedings, and might have antidoted the confusion and error that arose from the giving of Instruction "B" and "C" offered by respondent. Authorities 34, Supra and 37 Post. 36. Although appellant did not offer Instruction 4 (tr. 73); still, after the court had refused all of appellant's instructions on his theory, if the court acceded to respondent's position and submitted the case on John's negligence, appellant had a right to have that issue properly submitted as to respondent also between her and John, as such instruction was a correct pronouncement of the law that was also to govern appellant's rights against respondent. Mollman v. St. Louis Public Service Co. (Mo. App.) 192 S.W.2d 618.37. A defendant can complain of an instruction, given at a co-defendant's request if it affected or was calculated to affect the question of complaining defendant's liability to plaintiff. Bowman v. Moore 237 Mo. App. 1163, 167 SW (2) 675; Berry v. Kansas City Public Service Co. 341 Mo. 658, 108 S.W.2d 98; Mollman v. St. Louis Public Service Co. (Mo. App.) 192 S.W.2d 618. 38. Even though the courts lean backward to avoid suspicion of partiality to a member of their own profession, they should not fear to protect a lawyer against loss of his right on such a record as this. Kingsland v. Dorsey, 94 L Ed 107, l.c. 112. 39. The appellate Court should reverse and remand this cause with directions to the trial court to enter a judgment in favor of appellant and against respondent as to liability, and to submit solely the issue of the amount of appellant's damages in any further proceedings as prayed in his motion in that behelf filed with his motion for a new trial (Tr. 24). Sec. 847.140 (c) Mo. R.S.A. (Laws 1042, p. 353, Sec. 140).
Lehman Finch, Finch and Finch, for Respondent.
I. Appellant's cause of action, as stated in his petition, was for damages because of the negligence and carelessness of respondent in the operation of his jeep, and that is the theory he requested the court to submit by his request for Instruction No. 4 which the court gave. Appellant, having tried his case on that theory below, cannot now have his case heard on a different theory on appeal. Humphries v. Shipp 238 Mo. App. 985, 194 S.W.2d 693; Kolb v. Howard Corp., 219 S.W.2d 856. II. The court correctly refused appellant's requested Instruction No. 1, which was a peremptory instruction to find for appellant, for the following reasons: (a) Because the evidence showed she was invited to ride in and drive the jeep by the one driving and in possession thereof. Blashfield, Vol. 4, Page 335, Section 2294. (b) Presumptively the one in possession is the owner. 42 Am. Juris., Page 218, Section 41. (c) The jury were not bound to believe appellant when he testified that he had instructed his son, John, not to let anyone drive the jeep. Thompson v. Butler 347 Mo. 269, 147 S.W.2d 437; Dempsey v. Horton 337 Mo. 379, 84 SW (2) 621; Young v. Wheelock 333 Mo. 992, 64 S.W.2d 950; Barz v. Fleishman Yeast Co., 308 Mo. 288, 271 S.W. 361. (d) The presumption arose from appellant's failure to call his son John as a witness, that his testimony would have been against appellant's claim and contention. Russell v. Franks 343 Mo. 159, 120 S.W.2d 37; McNicholas v. Continental Baking Company 112 S.W.2d 849; Huskey v. Metropolitan Life Ins. Co. 94 S.W.2d 1075. III. Under the act created in the Magistrate Court, new parties may be brought in on appeal, and a third-party complaint should be treated as an amendment bringing in new parties. Section 2811.239 R.S. Mo. 1939. This is especially true since on appeal the rules of the Circuit Court govern. Section 2811.242, R.S. Mo. 1939. The verdict of the jury and the judgment of the court having been against respondent on her third-party claim, any error in connection therewith was harmless error, and courts are only liable for error injurious to the complaining party. Neal v. Curtis Manufacturing Company 328 Mo. 389, 41 S.W.2d 543; Wall v. Nay, 30 Mo. 494-497; Boatmen's National Bank v. Rogers 352 Mo. 263, 179 S.W.2d 102 l.c. 107; V. The appellant was not entitled to a directed verdict based on oral testimony as the credibility of the witnesses was for the jury. See authorities under point II (c). VI. Appellant cannot complain of the court's action in refusing to give an instruction offered by another party in the case, and which did not deal in any way with appellant's cause of action or right to recover. Whether erroneously refused or not, it is harmless error so far as appellant is concerned. Neal v. Curtis Manufacturing Company, supra. Shock v. Berry, 221 Mo. App. 718, 285 S.W. 122. VII. Where, upon consideration of the whole record, the judgment is clearly correct and for the right party as shown by the record in this case, it should be affirmed, regardless of errors at trial. Bank of Ozark v. Tuttle, 144 Mo. App. 294, 127 S.W. 918. VIII. Respondent's testimony as to speed was only a guess and was not a judicial admission, and therefore, the question of respondent's negligence was a question for the jury. Dennis v. Wood 211 S.W.2d 470; Pearson v. Kansas City Public Service Company 217 S.W.2d 276; Diel v. St. Louis Public Service Company 192 S.W.2d 609.
This is an action for damages to a jeep. It was begun in the magistrate court of Cape Girardeau County. The defendant was permitted to file a third party petition against John Frye, minor son of plaintiff. The cause was tried in the magistrate's court, where a verdict was rendered against plaintiff but there was no verdict on the third party petition. Guardians ad litem were duly appointed for John Frye and Kathryn Baskin, who was also a minor.
Plaintiff appealed to the circuit court of Cape Girardeau County, a change of venue was taken and it was tried in Mississippi County on the pleadings filed in the magistrate's court. The jury there returned a verdict against plaintiff and against defendant on her third party petition. From judgment rendered upon these verdicts, plaintiff, alone, has appealed.
There is very little contradiction in the evidence. Plaintiff lived ten or twelve miles from Cape Girardeau. On March 1, 1947, he purchased a new jeep, paying therefor the sum of $1443.37. Nine days later and when it had been run approximately 150 miles, plaintiff let his son, John Frye, have it to drive to a National Guard meeting in Cape Girardeau. Plaintiff offered to show that he instructed his son "to let no one drive that car under any circumstances." The court refused this offer. About 9 o'clock that night, John Frye and a friend, Don Carner, appeared at a theater in Cape Girardeau where defendant Kathryn Baskin worked as an usher. Her friend, Jacqueline Brunke also worked there. The two boys made a date with the two girls to return about ten o'clock and take them for a ride. They returned about that time and Don Garner and Jacqueline Brunke got in the front seat, Don Garner driving, with John Frye and Kathryn Baskin in the rear seat. They first drove to a Barbecue Stand, where they obtained refreshments. When they left that place, John Frye drove the jeep, Kathryn Baskin riding with him in the front seat and the two others in the rear. While they were driving around, John Frye asked Kathryn Baskin if she could drive a car. She said she could but had never driven a jeep or been in one before. He stopped the car a little later, got out and went around to the right side. She asked what he was doing and he said he intended to let her drive. She then told him she was merely joking when she said she could drive, that she had never driven a car and knew nothing about it. He then told her he would teach her to drive, and at his request, she got under the wheel and he sat in the front seat beside her. He showed her how to start the car, how to use the clutch, how to shift the gear and where the brakes were. Under his tutelage, she drove down through the main part of town and turned to the right on Independence Boulevard. This is a thoroughfare running east and west and across U.S. Highway 61 at the west edge of town. It was about 10:30 or 10:45 p.m. When they approached Highway 61, Kathryn said, "What way should we go?" and someone said, "Turn to the right." Kathryn Baskin did not know who said it, but Jacqueline Brunke thought it was John Frye as he was in the front seat directing the operations. Kathryn turned the car to the right to go north on Highway 61, had proceeded until the the car was at about a 45 degree angle to 61, when John must have changed his mind, for he said, "No, turn to the left." She immediately turned the wheel of the car to the left and apparently was too far across Highway 61 to make the turn and ran off into a ditch, six or eight feet deep, and turned over one time, at the southwest intersection of Independence Boulevard and Highway 61. The damage to the car was about $200.00.
Kathryn testified that as she approached Highway 61, she guessed she was travelling about 50 or 60 miles an hour, that she did not know. There was no dashlight on the car and she never saw the speedometer. Jacqueline testified that their speed out Independence Avenue was about 25 miles per hour, that they slowed down and as they approached Highway 61, they were going at about 20 miles an hour. They were the only witnesses, who testified as to the accident. Kathryn was called as a witness by plaintiff. Jacqueline was called by defendant Baskin. Neither John Frye nor Don Garner testified.
Appellant, in his brief, asserts and here proceeds upon the theory, that his action from the beginning was one for trespass. He insists that the allegations of negligence should be treated as surplusage. His petition in full follows:
"For his cause of action plaintiff states:
"1. That on May __, 1947 plaintiff allowed his son John to drive plaintiff's jeep.
"2. That said son John, without authority of plaintiff, allowed defendant to drive said jeep and she carelessly and negligently drove at a high and dangerous rate of speed under the circumstances and overturned the same, wrecking it, marring and scarring it, and damaging it in the sum of $150.00.
"3. That defendant is a minor and has no legally appointed guardian.
"Wherefore, plaintiff prays judgment against defendant for $150.00 and further prays that a guardian ad litem be appointed to represent her in these proceedings." (Italics ours.)
At the close of all the evidence plaintiff, as attorney for and on behalf of his son, third party defendant, moved the court for a directed verdict in his son's favor upon the ground that defendant's evidence was insufficient to show his son's acts constituted any negligence as to her and that the testimony showed that she was negligent as a matter of law. It was insisted that to drive at the speed shown by the evidence at the intersection, where the accident occurred, constituted negligence as a matter of law and that though John told her to turn to the left, she was under no obligation to do a negligent act because suggested by someone else.
Plaintiff, as attorney for third party defendant, also requested the court to give an instruction on contributory negligence as applied to defendant Baskin. The instructions given by the court, at the request of defendant, were upon the theory of negligence. The motion for new trial nowhere mentions or suggests that the theory at the trial was one of trespass. It is a well known rule of law that the appellate courts will review the case only upon the theory presented in the trial court. Ellis Gray Milling Co. v. Sheppard (Mo. App.) 215 S.W.2d 57. Kolb v. Howard Corp. (Mo. App.) 219 S.W.2d 856. Humphries v. Shipp, 194 S.W.2d 693, 238 Mo. App. 985. Simmons et al. v. Friday (Mo. Sup.) 224 S.W.2d 90. One cannot abandon the theory upon which his case was tried and have it reviewed upon an altogether different one.
However, the evidence in this case does not show such a trespass on the part of defendant as to make her liable to plaintiff. Trespass involves the idea of force. The principle is elementary that trespass lies whenever an injury to plaintiff's property, against his will, is the immediate result of a forceful, unlawful or wrongful act (not in a criminal sense) by the trespasser, the consequences of which make them tortious. Mawson v. Vess Beverage Co. (Mo. App.) 173 S.W.2d 606. 52 Am. Jurs. Trespass, Sec. 1.
There is a clear difference between a trespasser and an invitee or guest so far as riding in a passenger automobile is concerned. Assuming that the court had admitted the testimony of plaintiff that he instructed his son to let no one drive the jeep under any circumstances, does it constitute actionable trespass for a person on invitation of the driver in possession of a passenger automobile to enter the car? It is not even contended that defendant knew who owned the car. She was informed that it was new, but she did not know that plaintiff had issued any such instructions to his son, or that the son or Don Garner was not the owner. If a violation of those instructions made the person driving the car a trespasser, did it make one entering the car one also? Certainly it does not constitute actionable trespass to innocently enter a passenger car and ride at the request of the driver, with whom you are acquainted, and who is in full possession, without any knowledge that he is not the owner or that there are any restrictions on his use of the motor vehicle. Suppose the instructions of the plaintiff to his son had been to let no one ride in the car. Would she have been a trespasser under those circumstances? Suppose those instructions had been to let no one ride in the back seat of the car. Would she have been a trespasser riding in the back seat and an invitee if she had ridden in the front seat? Can the plaintiff invest another with possession and apparent ownership of a passenger automobile, and by giving secret instructions to that person cause anyone riding with him, however innocently, to become a trespasser to such an extent as to make him liable for damages? Is every person, who accepts an invitation to ride in a passenger automobile driven by anyone except the record owner, a trespasser ab initio, and liable for at least nominal damage to the unknown owner? (See Am. Jur. Trespass, Sec. 47). If defendant had gotten out at the Barbecue Stand before she took the wheel of the jeep, would she have been a trespasser or just when did her status as such begin? Would she have been a trespasser if the accident had not occurred? Can she be an invitee on the ride and immediately become a trespasser by taking the wheel in violation of some secret instructions, of which she knew nothing? We recognize the rule that she could not, under the facts, have collected from plaintiff for injuries she might have suffered in an accident, under the doctrine of respondeat-superior, but we do not believe she was such a trespasser under the facts in this case as would permit plaintiff to collect damages from her on that theory. He had invested his son with possession of the jeep. Possession of personal property raises a presumption of ownership, (20 Am. Jur. Evidence, Sec. 237) and defendant, upon entering the car upon the invitation of the party in possession did not become such a tortious trespasser as to make her liable to the real but unknown owner for injuries to it, based alone upon her status as a trespasser. And whether or not the court admitted evidence of plaintiff's instructions to his son would not alter the situation. Its refusal was not error.
Furthermore, if you leave from the petition the allegation of negligence, which, for clarity, we have italicized, it does not charge trespass. It does not allege a forcible, wrongful, unlawful or tortious act upon the part of defendant and against the will of the plaintiff, neither does it allege facts from which such allegations could be deduced. It has been held that to state a cause of action in trespass, the petition must allege that the injury complained of was direct and immediate upon the defendant's act and not merely consequential. Mawson v. Vess Beverage Co. (Mo. App.) 173 S.W.2d 606, l.c. 613. Though formal pleadings are not required in the magistrate's court, where plaintiff elected to so plead, he is bound to the same extent as if the action had originally been filed in the circuit court. Badgett v. Hartford Fire Ins. Co. 188 S.W.2d 761, 238 Mo. App. 797.
But, be that as it may, plaintiff cannot now abandon his trial court theory of negligence and proceed in this court upon the theory of liability as a trespasser.
Neither does the evidence show negligence on the part of defendant as a matter of law, (if it shows negligence at all, which we need not decide.) While she states that she guessed she was traveling 50 or 60 miles an hour while approaching U.S. Highway 61, she further stated she did not know her speed and we, (assuming she guessed correctly) are not in a position to say that approaching Highway 61 at 10:30 at night at 50 or 60 miles an hour was negligence per se. There was evidence that a wide apron on each side of Independence Avenue connected with Highway 61, so the turn was not absolutely abrupt, and there was no evidence of congested traffic. There was no evidence of obstructed vision north or south on 61. The evidence also showed that Independence Avenue proceeded on westwardly across Highway 61, and no turn was necessary. The other witness testified that they approached the highway at the speed of 20 miles per hour and the jury might have believed her version of it. It is true she turned the car to the left, when John Frye ordered her to do so, and the car went into the ditch but that would not, as a matter of law, make her negligent.
All the evidence relating to the relative positions of the driver (Kathryn) and the instructor (John) was before the jury. They knew that Kathryn knew nothing about the operation of an automobile and that she was completely under the control, tutelage and domination of John. She had to be shown where the brakes were, to say nothing of being instructed as to their functions. She had never driven any car and she had never before been in a jeep. As far as John was concerned, she controlled the car the same as if she had been a robot or an automaton. When John said "turn", she turned, mechanically, she was the instrumentality by which John drove the car. Haynie et al. v. Jones et al. 127 S.W.2d 105, 233 Mo. App. 948. The operation of the car was under John's control as much as if he had merely had a longer arm by which he would control it from the right side. Grant v. Knepfer 245 N.Y. 158, 156 N.E. 650. 54 A.L.R. 845, Cardoza, Ch. J. "Where one permits another to operate a car but remains in control, the driver is no more than an alter ego of the other and his acts are in effect just as much the acts of that other as though (the latter) were the one actually operating the car." Archambault v. Holmes 125 Conn. 167, 4 A.2d 240. Burwell v. Neumann et al. 32 A.2d 640, 130 Conn. 117. Woodson v. Hare, 244 Ala. 301, 13 So.2d 172.
We may assume that John was a licensed driver or he would not have been in charge of and driving plaintiff's jeep. We may also assume that Kathryn was not a licensed driver because she could not have obtained a license unless she was qualified to drive. Sec. 8450 M.R.S.A. Rather would she come under the provision of Sec. 8448 M.R.S.A., which permits one, who is not qualified to drive, to learn under "a temporary instruction permit" and this section requires that such learner "must be accompanied by a licensed operator, chauffeur or registered operator who is actually occupying a seat beside the driver." Undoubtedly the reason for requiring him to occupy the seat beside the driver is so that he can control and supervise her and the operations of the automobile. It is possible for the instructor to be negligent and the pupil, though following his instructions, to be free from negligence. In the leading case of Greenie v. Nashua Buick Co. 85 N.H. 316, 158 A. 817, a man by the name of Peck, 74 years of age, had driven, for many years, an old Ford "with the old shifts" but he had never operated a gear shift car. The defendant sold him such a car and agreed to teach him to drive. He was given some theoretical instructions in defendant's place of business and then placed under the wheel with defendant's agent (one Tarbell) beside him. He was proceeding down a well traveled street in the center thereof at about 20 miles per hour. The plaintiff came out from a side street, noticed the slow progression of Peck and thinking he was stopping to let her pass, proceeded to the center of the street. Peck, with defendant's agent sitting beside him, started to put his foot on the brake and stop his car but actually depressed the accelerator, causing the Buick to lurch forward and collide with plaintiff's car. Plaintiff sued the defendant and Peck. The jury found for Peck but found against the defendant. On appeal the point was raised that the verdicts were inconsistent. The court said:
"The validity of the foregoing conclusions is not affected by the jury's finding, implicit in its verdicts, that Peck was not negligent. Although the jury must have found that it was not negligent for Peck to attempt to drive the car at the time and place of the accident, this finding does not compel a conclusion that Tarbell was free from fault in allowing him to take the wheel. Even though Peck realized his limitations as a driver, it might be found that having placed himself under Tarbell's direction for the purpose of receiving instruction, he was justified in relying upon Tarbell's judgment as to the proper time and place for him to undertake the actual operation of the car. No exoneration of Tarbell would be implied in such a finding."
In this case the jury undoubtedly found that when Kathryn turned to the left, at John's command, she was merely obeying the instructions of a licensed driver and instructor and, if it were negligence, it was John's and not hers. A learner would be more negligent in refusing to obey the command of the qualified instructor than in obeying it.
To take the most liberal view, from the standpoint of plaintiff, the entire evidence created a question of fact for the jury and it decided against him. We cannot interfere with its verdict by weighing the evidence ourselves.
Neither did the court err in refusing to give plaintiff's offered instruction No. I. That would have been in effect a directed verdict and for the reasons heretofore stated, plaintiff was not entitled to it.
As has been stated, defendant was permitted in the magistrate's court to file a third party petition bringing in plaintiff's son as third party defendant. In the magistrate's court and in the circuit court, plaintiff and third party defendant moved to dismiss the third party petition because there was no statutory authority for filing such in the magistrate's court. These motions were overruled and of this action, plaintiff complains.
We find no direct authority for filing a third-party petition in a magistrate's court but we cannot hold that reversible error was committed in the trial court in hearing the testimony on the third party petition. If this case had been filed directly in the circuit court, such a petition could have been filed with statutory authority. Laws of Missouri, 1943, page 362, Sec. 20. Sec. 847-20 Mo. R.S.A. It could then have been heard in a manner consistent with the provisions of the New Civil Code without injury to plaintiff's rights and while it was irregular to file it in the magistrate's court and bring it to the circuit court on appeal, we cannot see how plaintiff would have been any more injured by such procedure than if it had been filed directly in the circuit court. It must be remembered that the third party petition was filed by the defendant and that plaintiff's son was third party defendant. His son won on the third party petition and of course had no occasion to appeal. The defendant lost and did not appeal. The evidence as presented in this case, as we view it, was exactly the same as if no third party petition had ever been filed. Therefore, we are unable to see how plaintiff could have been injured by the third party petition, even though there is no statutory authority for such filing. If it was error as to the plaintiff, it was harmless error and not of such gravity as would justify the reversal of this cause.
Plaintiff also objects to the court's failure to give certain instructions offered on behalf of the third party defendant. As stated, the third party defendant won, was not injured, and if error was committed in the refusal to give these instructions, it is not such error as can be taken advantage of by the plaintiff.
The plaintiff also objects for the failure of the court to give instruction No. 2, requested by him and which is as follows:
"The court instructs the jury: J. Grant Frye had a right to sue either or both of Kathryn Baskin or John Frye, and it is no defense to Kathryn Baskin in his claim against her that he did not also sue his son John. Nor does the fact that he did not also sue his son John, of itself, give her any valid claim against John."
This instruction contains an abstract statement of the law and is slightly argumentative. In refusing to give it, the court did not abuse its discretion, and such action was not reversible error.
Neither was it error to refuse to give instruction No. 3, offered by plaintiff, for the same reason. That refused instruction states:
"The court instructs the jury: Neither the difference in age, sex, station in life, or relationship of any of the parties should be permitted here to influence your verdict. All persons are equal before the law and are entitled to the same careful and fair consideration of their case. You are to be governed in your deliberations solely by the facts as you honestly find them to be and of the application of law as given you in the instructions to those facts."
We think the case was fairly presented upon plaintiff's instruction A, and defendant's instructions B, C, D and E and for the reasons stated in this opinion, we overrule plaintiff's contentions that the giving of instructions B, C, D and E was error.
Plaintiff also objects to the forms of verdict submitted by the court but the record does not show any objection to those forms thereby giving the trial court an opportunity to consider their correctness. However, we have examined the verdicts and find no error therein. The jury had a form for any verdict it was permitted to find under the instructions and we must assume it was composed of men of ordinary intelligence, and if so, could not have been confused.
We have carefully and patiently considered the many cases and statutes cited by plaintiff in his 15 pages of points and authorities. To discuss them singly would unnecessarily lengthen this opinion. They do not, however, change our views as to the decision in this case.
The judgment of the trial court should be affirmed. It is so ordered. Blair, J., and McDowell, J., concur.