State ex rel. Steinbruegge v. Hostetter
Citation | 115 S.W.2d 802,342 Mo. 341 |
Decision Date | 21 April 1938 |
Docket Number | 35658 |
Parties | State of Missouri at the relation of William Steinbruegge, Doing Business as West Florissant Motor Sales, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals |
Court | United States State Supreme Court of Missouri |
Record of The Court of Appeals Quashed.
A A. Alexander and T. J. Crowder for relator.
The opinion and decision of the Court of Appeals holds that when plaintiff proved appellant's ownership of the automobile in question, and that it was being driven by a regular employee of the appellant, a presumption arose that said employee was driving said car in the service of the appellant, and that the presumption having arisen, it remained in the case to the end unless it was destroyed by positive, unequivocal and unimpeached testimony adduced by the appellant showing that the driver was not driving the automobile in the service of appellant. The Court of Appeals in its opinion further ruled and held that the testimony adduced by appellant was not of such a character as to destroy the presumption, and in so holding the opinion and decision of said court is contrary to, and in conflict with the controlling decisions of this court, wherein this court has held and decided that equivalent or similar testimony was sufficient to destroy the presumption mentioned, and that the trial court should have sustained defendant's demurrer to the evidence. Guthrie v. Holmes, 272 Mo. 215; Ross v. St. Louis Dairy Co., 98 S.W.2d 717; State ex rel. Kurz v. Bland, 64 S.W.2d 638; Chiles v. Met. Life Ins. Co., 91 S.W.2d 164.
Eagleton Waechter, Yost, Elam & Clark for respondents.
(1) In ruling that the evidence adduced at the trial was not of such character to conclusively rebut or destroy the presumption arising from relator's ownership of the automobile and its operation by a general employee of the relator at the time of plaintiff's injury, the opinion and decision of the respondent judges of the St. Louis Court of Appeals was not in conflict with any controlling decision of this court. Sec. 7764, 7786 (d), R. S. 1929; King v. Rieth, 108 S.W.2d 1; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Yerger v. Smith, 89 S.W.2d 66. In any event, the evidence adduced by relator for the purpose of establishing that Hays was using the relator's automobile, which carried relator's dealer's license plates, solely for Hays' own uses and purposes, was not of such positive unequivocal, uncontradicted and undisputed character as to conclusively rebut or destroy the presumption of Hays' agency for relator. Schwartzman v. London & Lancashire Fire Ins. Co., 318 Mo. 109, 2 S.W.2d 593.
Gantt, J. All concur, except Hays, C. J., absent.
Relator seeks to have quashed the opinion of the St. Louis Court of Appeals in Waters v. Joseph Hays, and Wm. Steinbruegge, doing business as the West Florissant Motor Sales Co., 103 S.W.2d 498. In that case plaintiff sought recovery for personal injuries sustained when struck by Steinbruegge's automobile in the city of St. Louis. At the time of the collision defendant Hays was riding in the automobile and was in the general employ of Steinbruegge as an automobile salesman. Judgment for $ 3,000 against both defendants. Steinbruegge appealed.
In the Court of Appeals, error was assigned on the refusal of the trial court, at the close of the evidence, to direct a verdict for Steinbruegge. It was contended that there was no evidence tending to show that at the time plaintiff was injured, Hays was acting within the scope of his employment as a salesman for Steinbruegge. The assignment was overruled and the judgment affirmed. For a full statement of the facts, refer to Waters v. Hays et al., supra.
It is here contended that said ruling is in conflict with Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, a decision of this court en banc.
The rule is stated in the Guthrie case as follows:
To continue reading
Request your trial-
State ex rel. Thompson v. Shain
...opinion of the St. Louis Court of Appeals for conflict with the opinion of this court in Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854. The Steinbruegge case was a suit against the driver of automobile and his employer. Plaintiff offered proof of the ownership of the automobile and that the ......
-
Dove v. Atchison, T. & S. F. Ry. Co.
...... of the deceased, and even the jury found for the defendants. State ex rel. McClay v. Cox, 320 Mo. 1218, 10 S.W.2d. 940; Boyd v. Railroad, ... S.W.2d 884; for effect of presumptions see State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802;. State ex rel. Waters v. ......
-
Sowers v. Howard
...233, 198 S.W.2d 164; Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; State ex rel. v. Hostetter, 115 S.W.2d 802; Mullally v. Langenberg Bros. Gr. Co., 339 Mo. 98 S.W.2d 645; Farber v. Mo. Pac. Ry. Co., 116 Mo. 81, 22 S.W. 631; McMain v. Co......
-
State ex rel. Massman v. Bland
...... Mechanics' American Natl. Bank v. Rowell, 182. S.W. 989; C.I.T. Corporation v. Hume, 48 S.W.2d 154;. State ex rel. Steinbruegge v. Hostetter, 343 Mo. 341, 115 S.W.2d 802; Harpole v. Wunderlich, 230. Mo.App. 578, 93 S.W.2d 1104. (2) The court erred in admitting. evidence ......