HOLMAN, Judge.
Plaintiff (respondent) by this action seeks to recover for the damage caused to his truck when it overturned while being driven by defendant (appellant). A jury trial resulted in a verdict for plaintiff in the sum of $561.30.
Plaintiff's petition alleges that his truck was parked on the Kroger lot in the City of Washington, Missouri, and that defendant removed the truck without plaintiff's knowledge or consent and thereafter drove the truck so negligently as to cause it to be overturned and damaged. These allegations were denied by defendant's answer.
It appears from the evidence offered by plaintiff that he lived on a farm in Franklin County, Missouri, and that on the second day of May, 1949, his son, Robert Elder, with the permission of plaintiff, drove the truck in question to Washington where he was attending high school. Robert was then 18 years of age. After school that afternoon he drove the truck to Union, Missouri, for the purpose of going swimming. He was accompanied by the defendant, who was about the same age and attended the same school. Robert was a member of the National Guard company at St. Clair, Missouri, and was supposed to go from Washington to St. Clair that evening in a National Guard truck in order to meet with the Guard. He and the defendant were a little late getting back and met the National Guard truck on Jefferson Street in Washington, it having already started for St. Clair. In order to board the National Guard truck Robert got out of plaintiff's truck and left it with the defendant, telling him to take the truck and park it on the Kroger lot and when he got back from the National Guard meeting he would meet defendant at the cab office.
Defendant parked the truck on the Kroger lot as he had been requested to do. A little later that evening he met Robert Purcell, Jr., who was about 15 years of age, and asked if he would like to go for a vide with him. They got in the truck at the Kroger parking lot and the defendant drove the truck around town and finally out to the city park where they started around a road which was generally known as the "race track." At a point on a sharp curve where the road was rather narrow and quite rough the truck struck a rut causing defendant to swerve it to the right where it hit a chug hole and turned over. When questioned about the speed of the truck Purcell stated, "Well, maybe 40, maybe even not that much, because it may seem that you are going faster than what you really are in a ton and a half truck."
Shortly thereafter the scene of the accident was visited by the deputy sheriff, the city marshal and a judge of the Magistrate Court. These men all testified substantially to the effect that the defendant told them he was driving the truck on this road and that the lights of an approaching car blinded him at about the time he struck a rut in the road and then swerved to the right and turned over. This road was blacktop and it seemed uncontradicted that the winter weather had damaged the road and left many chug holes and uneven depressions. The deputy sheriff arrested the defendant at the direction of the magistrate judge and he was held in jail for two or three days, but released without prosecution. The title to the truck was in the name of the plaintiff, but it was used in connection with his farming operations and on the door thereof was printed, "S. R. Elder and Sons."
The defendant's evidence added little to that offered by plaintiff. He did give a slightly different version of his conversation with Robert at the time the truck was turned over to him. He quoted Robert as saying that, "When I got done with the truck I was to take and park it on Kroger's parking lot and when he got back from St. Clair to meet him at the cab office."
Defendant contends that the doctrine of res ipsa loquitur has no application to this case and therefore it was error for the court to give plaintiff's instruction No. 1 submitting the case upon that theory.
Plaintiff pleaded general negligence only and the state of facts alleged in his petition presented a clear case for invoking the inferences afforded by the res ipsa loquitur rule. Bommer v. Stedelin, Mo.App., 237 S.W.2d 225; Walters v. Adams Transfer Storage Co., 235 Mo.App. 713, 141 S.W.2d 205; Oliver Cadillac Co. v. Rosenberg, Mo.App., 179 S.W.2d 476.
If plaintiff had been content to prove that the truck was in the possession and under the exclusive control of defendant and while being driven by him was overturned and damaged, the res ipsa loquitur submission in instruction No. 1 would have been proper. The defendant was certainly in a better position to determine what caused the truck to overturn than was plaintiff. Furthermore, the occurrence was such as does not ordinarily happen if the person in control of the truck uses the proper degree of care.
Plaintiff, however, did not rest his case upon proof of the essential facts which would have entitled him to the benefit of a res ipsa loquitur submission. We need not repeat the evidence, but it will be seen from the facts heretofore stated that plaintiff proved almost every conceivable detail of the occurrence under consideration.
The res ipsa loquitur doctrine is one of necessity and cannot be invoked where plaintiff, although pleading general negligence, presents evidence of specific acts of negligence causing the injury and damage. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079; Lukitsch v. St. Louis Public Service Co., Mo.Sup., 246 S.W.2d 749.
The plaintiff presented definite and direct evidence from which the jury could find that defendant was guilty of specific negligence in operating said truck at an excessive rate of speed under the facts and circumstances detailed in evidence and that such negligence was the proximate cause of the casualty. This being true, it was reversible error to give an instruction submitting general negligence and authorizing the inferences permitted by the res ipsa loquitur rule. Such a submission conflicts with the basic fundamentals of the res ipsa loquitur doctrine and is condemned by the controlling authorities in this state.
It was commendable of plaintiff to present the evidence in detail. He was under a duty to act in good faith and present all of the evidence reasonably within his power. However, after successfully presenting evidence of the facts concerning the event, he should have abandoned his intention to rely upon the res ipsa loquitur doctrine and submitted an instruction which hypothesized the facts, concerning the specific negligence shown by the evidence.
Defendant further complains that the trial court committed error in overruling his motion for a directed verdict. He argues that the res ipsa loquitur doctrine is not applicable to this case and that plaintiff failed to prove any negligence on the part of the defendant and therefore defendant was entitled to a directed verdict. What we have heretofore said will indicate our view that there is no merit to this contention.
Defendant also contends that error was committed in the giving of plaintiff's instruction No. 4. This instruction stated that if the jury find, "that defendant was instructed by Robert Elder to deliver the truck mentioned in the evidence from the point on Elm Street mentioned in the evidence and park it on the Kroger parking lot, and if you further find and believe from the evidence that he did so drive the truck to and park it upon the Kroger parking lot, then he had no further right or authority to remove said truck from the Kroger parking lot." There was evidence to support the instruction and it would seem to contain a correct declaration of law. We have concluded, however, that the giving of this instruction was error because it was not in harmony with the theory of plaintiff's petition — and of plaintiff's instruction No. 1.
Plaintiff's right to a recovery, as disclosed by the petition and by instruction No. 1, is predicated upon defendant's negligence in the operation of the truck and not upon his unlawful or tortious possession of the same. There is authority for the proposition that unlawful, tortious possession of a chattel renders the bailee liable for injury or loss regardless of negligence on his part. Penter v. Ritter, Mo.App., 190 S.W. 29. Plaintiff, however, did not base his right to recover upon that rule and therefore this instruction would likely confuse the jury and should not have been given. We need not determine whether the error in giving same would require a reversal as we have already indicated that the cause must be reversed upon another ground.
The judgment should be reversed and the cause remanded for a new trial.
It is so ordered.
LAWRENCE HOLMAN, Judge, Ninth Judicial Circuit, sitting as Special Judge by transfer order.
W. E. BENNICK, P. J., and RUDDY, J., concur.