Guthrie v. Holmes

• Citation: 198 S.W. 854,272 Mo. 215
• Parties: JOSEPH A. GUTHRIE, Administrator of DAVID B. WHIMSTER, v. CONWAY F. HOLMES, Appellant
• Decision Date: 17 November 1917
• Court: United States State Supreme Court of Missouri

198 S.W. 854

272 Mo. 215

JOSEPH A. GUTHRIE, Administrator of DAVID B. WHIMSTER, v. CONWAY F. HOLMES, Appellant

Supreme Court of Missouri

November 17, 1917

Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.

Reversed.

Morrison Nugent & Wylder and H. L. Hassler for appellant.

(1) The evidence in the case does not make out a case of mere deviation. On the contrary, it conclusively shows that Hettenbaugh was using the automobile for his personal pleasure for a drunken carousal. The doctrine of deviation has never been applied to such a state of facts and under the evidence in the case, the demurrer should have been sustained. Reilly v. Connable, 214 N.Y. 586; Danforth v. Fisher, 75 N.H. 111, 21 L.R.A. (N.S.) 93; Eakin v. Anderson, 169 Ky. 1; Steffen v McNaughton, 142 Wis. 49; Douglass v. Stephens, 18 Mo. 369; Symington v. Sipes, 121 Md. 313, 47 L.R.A. (N.S.) 662; Patterson v. Kates, 152 F. 481; Tyler v. Stephan, 163 Ky. 770; Slater v Thresher Co., 97 Minn. 305; Garretzen v. Duenekel, 50 Mo. 107; Storey v. Ashton, 38 L. J. Q. B. 223 (which in effect overrules Sleath v. Wilson, 9 Car. & Payne, 607); Schoenhen v. Hartfield, 158 N.Y.S. 388. (2) Plaintiff's evidence raised no presumption that the chauffeur was acting in the scope of his employment. (a) Having shown that he had been using the car for his personal pleasure, the presumption is that the same condition existed at the time of the accident. Pope v. Cable Ry. Co., 99 Mo. 404; Nelson v. Jones, 245 Mo. 591; Dehner v. Miller, 166 Mo.App. 591. (b) Presumptions arise only when based on evidence consistent therewith and sufficient to support them. 16 Cyc. 1050; Elliott on Railroads (2 Ed.), sec. 1644; Woas v. Railroad, 198 Mo. 664; Rice v. Railroad, 153 Mo.App. 43; 6 Cyc. 629. (3) In any event, the presumption is overcome by the evidence in the case. Glassman v. Harry, 182 Mo.App. 304; Hurck v. Railroad, 252 Mo. 39; Berry on Law of Automobiles (2 Ed.), p. 694, sec. 615; Hite v. Railway Co., 130 Mo. 132; Davis v. Railway, 89 Mo. 350; Sowders v. Railroad, 127 Mo.App. 119; Mockowick v. Railroad, 196 Mo. 571; Tetwiler v. Railroad, 242 Mo. 194; Lotz v. Hanlon, 217 Pa. 339, 10 L.R.A. (N.S.) 202; 16 Cyc. 1087; Befay v. Wheeler, 84 Wis. 135; Elliott on Railroads (2 Ed.), sec. 1213; Huber v. Railway, 6 Dak. 392; Railroad v. Talbot, 78 Ky. 621; Volkman v. Railroad, 5 Dak. 69; Grundy v. L. & N. R. Co., 8 Ky. L. R. 689.

Hogsett & Boyle for respondent.

The demurrer to the evidence was properly overruled. (1) The evidence supports a reasonable inference that the chauffeur was using the automobile to look for the defendant's garage keys. (2) Proof that the automobile belonged to defendant, and was being operated by defendant's regularly employed chauffeur, was a prima-facie sufficient showing that the chauffeur was acting within the scope of his employment, and the burden of evidence shifted to defendant to show the contrary. O'Malley v. Construction Co., 255 Mo. 386; Shamp v. Lambert, 142 Mo.App. 575; Marshall v. Taylor, 168 Mo.App. 246; Wiedeman v. Taxicab Co., 182 Mo.App. 523; Long v. Nute, 123 Mo.App. 204; Fleishman v. Fuel Co., 148 Mo.App. 117; Vanneman v. Laundry Co., 166 Mo.App. 685; Fleishman v. Fuel Co., 163 Mo.App. 416. (3) This rule is just. For as between the injured person and the employer of the negligent chauffeur, the burden of evidence should rest upon him who is in the better position to know the facts. (4) The evidence of defendant's own chauffeur affirmatively shows that the chauffeur was acting within the scope of his employment. (5) Hettenbaugh's drunkenness is no defense. Whether drunk or sober, he was defendant's regularly employed chauffeur; and if he was acting within the scope of his employment defendant is liable. Whimster v. Holmes, 177 Mo.App. 135. (6) The evidence that other persons were in the automobile with Hettenbaugh at the time of the injury is weakened by the testimony of Dr. Whimster, and by the circumstance that at least one of the witnesses confused defendant's automobile with some other automobile entirely. (7) It is for the jury, not the court, to say which inference shall be drawn from the circumstances shown by the evidence. Linderman v. Carmin, 255 Mo. 62; Finnegan v. Railway, 244 Mo. 653; Hall v. Coal Co., 260 Mo. 351; Gilky v. Woodmen, 178 S.W. 875; Merritt v. Telephone Co., 215 Mo. 299; Luehrmann v. Light Co., 127 Mo.App. 213; Pohlmann v. Foundry Co., 123 Mo.App. 219. (8) After verdict in plaintiff's favor, the evidence must be viewed in the light most favorable to plaintiff, and where two inferences may reasonably be drawn from the evidence, the appellate court will adopt that one which is in aid of the verdict. St. Louis v. Packet Co., 214 Mo. 638; Hall v. Coal Co., 260 Mo. 351; Dunn v. Railway, 192 Mo.App. 260; Allen v. Railway, 189 Mo.App. 272; Merritt v. Matchett, 135 Mo.App. 176; Giddings v. Railway, 133 Mo.App. 610. (9) But even if defendant had produced direct evidence tending to show the chauffeur was not within the scope of his employment, the credibility and weight of such evidence was still for the jury. Gannon v. Gas Light Co., 145 Mo. 516; Mowry v. Norman, 204 Mo. 193; Printz v. Miller, 233 Mo. 47; Link v. Jackson, 158 Mo.App. 90; Winn v. Woodmen, 157 Mo.App. 11; Troll v. Home Circle, 161 Mo.App. 719; Davidson v. Railway, 164 Mo.App. 715; Clouts v. Gas Light Co., 160 Mo.App. 473. (10) The fact that some keys were found on Hettenbaugh after his arrest cannot avail defendant as a matter of law, because: it was a matter going at most to the credibility of Hettenbaugh's testimony; there is no evidence that the keys found on Hettenbaugh were the garage keys; even if the garage keys had been found on him, this proved nothing, for possibly Hettenbaugh had actually found the keys before running over plaintiff; even if Hettenbaugh had never in fact lost the keys in the first place, yet if he thought he had, and started out with the car to look for them, the legal effect of his conduct would not be affected by the fact that he was mistaken about having lost them. (11) In cases where there is no direct evidence upon a point, it is competent for the jury to draw from the circumstances proved an inference as to the ultimate fact in issue. Meadows v. Insurance Co., 129 Mo. 76; Buesching v. Gas Light Co., 73 Mo. 219; Wack v. Railway, 175 Mo.App. 111; Johnston v. Railway, 150 Mo.App. 304. (12) On the former appeal defendant successfully contended that there was evidence showing whether Hettenbaugh was within the scope of his employment. Now defendant contends there is no evidence showing this. Defendant cannot thus shift positions. Tower v. Imp. Co., 192 Mo. 393; Coney v. Laird, 153 Mo. 435; McClure v. Clement, 161 Mo.App. 30; Davis v. Wackerle, 156 U.S. 689.

GRAVES, C. J. Walker, Blair and Williams, JJ., concur; Bond and Faris, JJ., concur in result, Woodson, J., dissents in opinion filed.

OPINION

In Banc.

GRAVES C. J.

This case reaches us upon a proper certification from the Kansas City Court of Appeals, there being a dissenting judge who deemed the majority opinion in conflict with opinions of this court, and expressed of record such views in an opinion filed.

The case was twice before the Kansas City Court of Appeals. First it was held (Whimster v. Holmes, 177 Mo.App. 130, 164 S.W. 236) that there were facts sufficient to take the case to the jury, but the judgment for plaintiff was reversed and cause remanded for error in an instruction. Upon a retrial plaintiff again received a verdict at the hands of the jury, and from a judgment thereon the present appeal arises. Upon a second hearing in the Court of Appeals, the division of opinion occurred, and the dissenting judge now takes the position that the plaintiff failed to make a case.

That the evidence on the second trial must have been materially different from that upon the first is made clear by rulings in the first opinion. Thus in the first opinion we find this recited fact:

"And it was further shown that he was to overhaul the car and make some repairs during the absence of defendant, consulting with an expert in a certain public garage in the city."

No such statement of facts could be made on the present record, and from it we conclude the evidence before us is quite different from the record in the first appeal. However, we shall state the facts, as we find them in this record.

In March or April, 1912, the defendant employed one H. L Hettenbaugh, as a chauffeur, and to take care of his two automobiles. Hettenbaugh was not only a chauffeur, but was an automobile mechanic, having had experience in repair shops. On July 10, 1912, defendant and his family and some others were going away from Kansas City, and Hettenbaugh drove defendant's wife, some members of his family and perhaps a Mrs. Edson, to the railroad station at Second and Wyandotte streets. Defendant had two automobiles, one a Packard touring car, used by Hettenbaugh on this occasion, and the other a Packard roadster, driven to the depot by defendant on this occasion. Defendant drove to the station, shortly before the time of the train's departure, and whilst there directed Hettenbaugh to take two acquaintances up town and then to take the car home. One of these acquaintances was to be taken to the Dwight Building at Tenth and Baltimore and the other to the Baltimore Hotel at Eleventh and Baltimore. There is no question as to the directions given Hettenbaugh at this time. The day before his departure, it appears that defendant had directed Hettenbaugh to thoroughly overhaul his cars, if he had time so to do, and especially the roadster. Defendant, himself, only expected to be absent some ten days. No directions were given about consulting Rogers, or any other expert about either of said...