Opinion
No. 44327.
November 8, 1954.
Plaintiff employee of an automatic car washing establishment was injured when defendant's automobile lurched forward and struck plaintiff after defendant had stepped out of said automobile and left the engine running pursuant to directions of said establishment. After a verdict for defendant the trial court granted plaintiff a new trial on the ground of an instruction that the actions of a guest who was getting out of the automobile when it lurched forward could not be imputed to defendant. There was no submissible case under the res ipsa loquitur doctrine. The instruction was not erroneous and the verdict for defendant should be reinstated.
1. NEGLIGENCE: Motor Vehicles: Employee of Car Washing Establishment Injured: No Exclusive Control of Driver of Automobile: Res Ipsa Loquitur: No Submissible Case. When defendant motorist drove his automobile into an automatic car washing establishment he did not retain control of his automobile, which injured an employee of said establishment after plaintiff had stepped out of his automobile under the directions of the employees of the establishment. There was no submissible case under the res ipsa loquitur doctrine.
2. NEGLIGENCE: Motor Vehicles: New Trial: Negligence of Guest Not Imputed to Driver: Instruction Not Erroneous: New Trial Improperly Granted. The action of a portly automobile guest in trying to squeeze under the driving wheel as she was getting out of defendant's automobile while the engine was running may have been the cause of the automobile suddenly lurching forward and striking plaintiff. Defendant's instruction that the actions of such guest, whether accidental or negligent, could not be imputed to defendant was not erroneous. The trial court improperly granted a new trial on account of the giving of such instruction. The verdict for defendant should be reinstated.
Appeal from Circuit Court of City of St. Louis; Hon. William K. Koerner, Judge.
REVERSED AND REMANDED ( with directions).
Remmers Remmers, Oliver T. Remmers and Douglas B. Remmers for appellant.
(1) Plaintiff failed to make a submissible case under the res ipsa loquitur doctrine, because the instrumentality involved, to wit, the automobile, was not under the management and control of the defendant, because the automobile was bailed to the Automatic Car Wash Company for the purpose of having the automobile washed, and the control and management of the automobile was in the bailee. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Oliver Cadillac Co. v. Rosenberg, 179 S.W.2d 476; Suits v. Electric Park Amusement Co., 213 Mo. App. 275, 249 S.W. 656; Hope v. Costello, 222 Mo. App. 187, 297 S.W. 100; Combow v. Kansas City Ground Inv. Co., 358 Mo. 934, 218 S.W.2d 539; Walters v. Adams Transfer Storage Co., 253 Mo. App. 713, 141 S.W.2d 205; Samples v. Geary, 292 S.W. 1066; 8 C.J.S., Bailments, Paragraph 1; 6 Am. Jur., Bailments, sec. 27. (2) Plaintiff failed to make a submissible case under the res ipsa loquitur doctrine, because all the facts indicate that the defendant was not guilty of negligence. Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795; Cooper v. 804 Grand Bldg. Corp., 257 S.W.2d 649; 8 Am. Jur., Negligence, sec. 308. (3) Plaintiff failed to make a submissible case under the res ipsa loquitur doctrine, because the evidence showed that plaintiff's injury could have resulted from other persons or causes. Weisbrod v. Katz Drug Co., 223 S.W.2d 97; State ex rel. and to Use of Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Hart v. Emery, Bird, Thayer Dry Goods Co., 223 Mo. App. 312, 118 S.W.2d 509; 8 Am. Jur., sec. 303. (4) The trial court erred in granting plaintiff a new trial on the ground that the giving of Instruction 3 was erroneous, whereas instruction 3 was correct and should have been given because it instructed the jury that if they found that the actions of the passenger in moving inside the automobile caused the automobile to move forward and strike the plaintiff, and if they further found that the passenger was the guest of the defendant, and was not acting under his direction or control, the actions of the passenger could not be imputed to the defendant. Herrell v. St. Louis S.F. Ry. Co., 324 Mo. 38, 23 S.W.2d 102; Stevens v. Westport Laundry Co., 224 Mo. App. 955, 25 S.W.2d 491; Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667; Cuddy v. Schenewark, 231 S.W.2d 689; 1 Raymond, Missouri Instructions, sec. 1312. Morris A. Shenker and William R. O'Toole for respondent.
(1) The trial court properly overruled defendant's motion for a directed verdict at the close of the whole case, because, viewed in a light most favorable to plaintiff, he made a submissible case under the res ipsa loquitur doctrine. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Mackler v. Barnert, 49 S.W.2d 244; Bobbitt v. Salamander, 240 Mo. App. 902, 221 S.W.2d 971; Wallace v. Keystone Auto Co., 239 Pa. 110 86 A. 699; Storey v. Parker, 13 So.2d 88. (2) The test of control as an element of the res ipsa loquitur doctrine is not that of exclusive management and control, but rather the right of control at the time the negligent act was committed. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Maxie v. Gulf, M. O.R. Co., 358 Mo. 1100, 202 S.W.2d 904; Cruce v. Gulf, Mobile Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78. (3) The automobile of the defendant was not bailed to the Automatic Car Wash Company because there was not sufficient delivery and acceptance to constitute a bailment. Hope v. Costello, 222 Mo. App. 187, 297 S.W. 100; Suits v. Electric Park Amusement Co., 213 Mo. App. 275, 249 S.W. 656; Samples v. Geary, 292 S.W. 1066; 8 C.J.S., Bailments, sec. 15 (2) (2b). (4) The fact that plaintiff's evidence may permit other inferences to be drawn other than one of defendant's negligence does not deprive the plaintiff of the res ipsa loquitur doctrine, since all that is necessary is that the occurrence permit a reasonable inference of the defendant's negligence, but plaintiff need not exclude every other reasonable hypothesis or inference. Maxie v. Gulf, M. O.R. Co., 358 Mo. 1100, 202 S.W.2d 904; Cruce v. Gulf, Mobile Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78; Cooper v. 804 Grand Bldg. Corp., 257 S.W.2d 649. (5) Defendant's version of what occurred at time of plaintiff's injury was a matter for the jury and did not require depriving plaintiff of res ipsa loquitur doctrine. Bobbitt v. Salamander, 240 Mo. App. 902, 221 S.W.2d 971; Mackler v. Barnert, 49 S.W.2d 244; Clint v. Northern Assurance Co., 223 P.2d 401; Wallace v. Keystone Auto Co., 239 Pa. 110, 86 A. 699. (6) Instruction 3, given by the court at the request of the defendant, was prejudicially erroneous and harmful to the plaintiff in that it inserted into the case issues of "sole cause" and "accident" without proper justification therefor. In effect, Instruction 3 was a verdict directing instruction for the defendant, and as such did not require essential finding of facts to direct a verdict. Douglas v. Douglas, 255 S.W.2d 756; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Dougherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Walker v. Klein, 127 S.W.2d 51; Stevens v. Westport Laundry Co., 224 Mo. App. 955, 25 S.W.2d 491.
This is an action filed by plaintiff John E. Hall against the defendant wherein he asked $10,000 in damages for personal injuries alleged to have been sustained when defendant's car struck plaintiff while it was in an automatic car wash establishment. A trial resulted in a verdict for the defendant. The trial court granted a new trial on the ground that instruction No. 3 given by the court at defendant's request was erroneous. From the order, the defendant appealed.
In the brief, defendant Lewis contends instruction 3 was not erroneous and further that the trial court should have directed a verdict for the defendant on the ground that the evidence was insufficient to sustain a finding for plaintiff. The case was submitted to a jury under the res ipsa loquitur doctrine.
[261] Plaintiff's evidence showed the following to have occurred: Plaintiff was employed by the Automatic Car Wash Company in St. Louis, Missouri. His duties consisted of operating the machinery controlling the brushes which washed a car as it passed through the washer. When on duty, plaintiff would stand on a concrete platform 5 or 6 inches above the level of the floor near the entrance of the machine. On November 20, 1951, the defendant drove his car to the establishment to have it washed. A cousin of defendant's wife was in the car with him. After the defendant stopped his car at the door of the building and before entering it, employees of the washing company cleaned the wheels of defendant's car. Defendant was then requested to drive the car into the building and to stop near the entrance of the washer. A sign at the entrance of the building read:
"Please REMAIN IN CAR UNTIL INSIDE BLDG. UNLOCK DOORS ROLL WINDOWS UP LEAVE MOTOR RUNNING NOT RESPONSIBLE FOR ANYTHING LEFT IN CAR Thank You"
The defendant, after driving the car inside, stopped it a few feet from where plaintiff was standing on the concrete platform operating the machinery washing a car. Defendant was driving a 1950 Studebaker. After the car was stopped, defendant Lewis put the automatic shift in "Park" position and put on the emergency brake. He left the motor running. An employee of the washing company told the defendant to get out of the car. After defendant got out on the left side, the employee held the door open. Miss Lucille Soutica, defendant's guest, who occupied the righthand side of the front seat, attempted to get out on the righthand side: the employee of the company directed her to get out on the driver's side. Plaintiff testified that an employee always gives customers directions after a car is driven into the building. Note plaintiff's evidence:
"Q. Now, Hall, when the car comes in the alley, the motor is always running?
"A. That's right.
"Q. And there is an attendant there, isn't there?
"A. Beg pardon?
"Q. There is a man standing there?
"A. Yes, that's right, a man standing there.
"Q. From the car wash company?
"A. That's right.
"Q. And he tells the people to get out?
"A. Tells the man.
"MR. O'TOOLE: Just a moment. I object to that as being hearsay, calling for hearsay.
"THE COURT: Overruled.
"Q. (Mr. Remmers) What was your answer?
"A. Tells the man.
"Q. He tells the people to get out?
"A. That's right.
"Q. And then do they fasten a hook onto the bumper?
"A. Yes."
As Miss Soutiea attempted to get out of the car, she grasped the steeringwheel and as she was pulling herself across the seat, the car suddenly lurched forward and struck plaintiff breaking his right leg. Thereafter, defendant's car was drawn through the washer, cleaned, and returned to the defendant.
Was plaintiff entitled to submit his case under the res ipsa loquitur doctrine? We think not. One of the basic elements of the res ipsa loquitur doctrine is that the instrumentality causing the injury must be under the control of the defendant. Maxie v. Gulf, M. O.R. Co., 356 Mo. 633, 202 S.W.2d 904, l.c. 911 (5, 6); Cruce v. Gulf, Mobile and Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, l.c. 80 (3-5). In order to have his car washed, the defendant was required to surrender control of the movements of the car when he drove into the washing establishment. Note, as set out supra, the detailed instructions on the sign posted at the entrance. [262] Leaving the motor of the car running was one of the principal factors causing the car to lurch forward and injure plaintiff. The motor was left running at the specific direction of the wash company. Another factor, which in all probability was a contributing cause, was that Miss Soutica attempted to get out of the car on the lefthand side. This was also done at the direction of the company employee.
Plaintiff, in the brief, argues that the defendant had the right of control at the time plaintiff was injured and that that was sufficient under the res ipsa loquitur doctrine. It is true defendant was not compelled to have his car washed. He could have refused to obey the directions given by the employee of the company. He could have stopped the motor and also directed Miss Soutiea to get out of the car on the righthand side and to disregard the directions given her by the employee. If defendant had so acted, he would in all probability have been invited to leave and to have his car washed at some other place. In the orderly course of business, the defendant was required to comply with the regulations prescribed by the car washing company. The regulations in this case amounted to surrendering control of the movements of the car to the car washing company.
The instruction deemed erroneous by the trial court reads as follows:
"The Court instructs the jury that if you find and believe from the evidence that Miss Lucille Soutiea was merely the guest of the defendant in his automobile and was not acting under his direction or control, and if you further find that her actions in moving inside of the defendant's automobile caused the defendant's (defendant's) automobile to move forward, either accidentally or through her negligence, and strike the plaintiff, her actions cannot be imputed or charged to the defendant."
The instruction did not direct a verdict. It merely informed the jury that if Miss Soutiea was not acting under the direction of the defendant and that if her actions in moving inside of the car caused it to move forward, either accidentally or through negligence, her actions could not be charged to defendant. Under the facts proven, instruction 3 was proper.
Plaintiff says that the phrase "her actions in moving inside of defendant's automobile" gave the jury a roving commission to speculate and conjecture as to what actions the passenger might have taken that would cause the automobile of the defendant to go forward. Plaintiff's evidence was that Miss Soutiea was 5'3" tall and weighed about 200 pounds; that she had difficulty in getting by the steering wheel; that she grasped the steering wheel and pulled herself to the left side of the car; that it was then that the car lurched forward. The jury had a right to conclude that while Miss Soutiea was in the act of moving over by pulling on the steering wheel she must have by some action on her part caused the car to lurch forward. Such a finding was sufficient to excuse the defendant. It was not necessary to require a finding of some specific act, for example, that Miss Soutiea while attempting to move left pulled the selector lever from "Park" to "Drive" position. As we noted supra, the instruction was proper. See Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23 S.W.2d 102, l.c. 104, 105 (4, 5); Stevens v. Westport Laundry Co., 224 Mo. 955, 25 S.W.2d 491, l.c. 498 (15).
Plaintiff says further that instruction 3 was a "sole cause" instruction and defective in not requiring a finding that the casualty was not due to any negligence of the defendant. We cannot follow that reasoning. The instruction under the facts proven was a correct declaration of the law of imputed negligence and not a verdict directing instruction.
We hold the trial court was not justified in granting a new trial. The cause should be remanded to the trial court with directions to set aside the order granting a new trial and to reinstate the verdict of the jury.
It is so ordered. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. Leedy, Acting P.J., Ellison, J., and Bennick and Brouddus, Special Judges, concur.