Rockwell v. Standard Stamping Company, a Corp.
| Decision Date | 02 May 1922 |
| Citation | 241 S.W. 979,210 Mo.App. 168 |
| Parties | GEORGE E. ROCKWELL, Respondent, v. STANDARD STAMPING COMPANY, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Moses Hartmann, Judge.
AFFIRMED.
Judgment affirmed.
M. U Hayden and John P. Griffin for appellant.
(1) Appellant in this case is a corporation. If it was in fact the owner of the automobile truck which struck respondent's wagon, it was, of course, not present at the time of the accident and is not liable, therefore, for damages caused by the alleged negligent operation of the truck unless at the time the truck was being operated by an employee or agent of appellant and unless such employee or agent was at the time engaged in the performance of some duty pertaining to his employment and was acting within the scope of his employment. Guthrie v. Holmes, 272 Mo. 215; Hayes v. Hogan, 273 Mo. 1; Whiteaker v. Railroad Co., 252 Mo. 438; Bolman v. Bullene, 200 S.W 1068; Kilroy v. Crane Agency Co., 218 S.W. 425; Healy v. Cockrill, 202 S.W. 229, L.R.A. 1918 D. 115; Slater v. Thresher Co., 107 N.W. 133, 5 L.R.A. (N S.) 598; Lotz v. Haulon, 66 A. 525, 10 L.R.A. (N. S.) 202; Danforth v. Fisher, 75 N.H. 111; Steffen v. McNaughton, 124 N.W. 1016. (2) The fact, it if be a fact, that appellant was the owner of the automobile truck which struck respondent's wagon, is not sufficient to sustain the verdict and judgment in this case. The burden was imposed upon respondent, under the theory upon which he brought his suit, to establish the further fact that at the time of the collision the automobile truck was being operated by an employee, agent or chauffeur in the employ of appellant, who was at the time acting within the scope of his employment. Proof of the mere fact of ownership does not create the presumption that at the time of the accident the truck was being operated by an employee or agent of appellant, who was acting within the scope of his employment. Authorities cited under subdivision 1. (3) Evidence tending to establish that the defendant's truck which struck respondent's wagon was being operated at the time of and immediately prior to the collision, at an excessive rate of speed, is not alone sufficient to entitle respondent to recover. His proof must also tend to establish a causal connection between the alleged negligence and the collision. Stagg v. Coffee Co., 169 Mo. 489; Purcell v. Tennant Shoe Co., 187 Mo. 276; Harper v. Terminal Co., 187 Mo. 575 Bluedorn v. Railway Co., 251 Mo. 13; Waldman v. Skrainka Construction Co., 233 S.W. 242; Deschner v. Railroad Co., 200 Mo. 310; Strother v. Railroad Co., 188 S.W. 1102; Goransson v. Riter-Conley Mfg. Co., 186 Mo. 300; Roper v. Greenspon, 192 S.W. 149, and cases cited.
Hall & Dame for respondent.
(1) On demurrer to the evidence plaintiff is entitled to every favorable inference to be drawn from the evidence. Knorpp v. Wagner, 195 Mo. 637; Enloe v. Car and Fdry. Co., 240 Mo. 443; William v. Railroad, 257 Mo. 87. (2) Evidence that appellant's name was on the truck which collided with respondent made out a prima facie case for respondent to show that such truck was in charge of appellant's servant and that he was acting in the course of his employment at the time. Fleischmann v. Polar Wave Ice & Fuel Co., 148 Mo.App. 117; Phillips v. Western Union Tel. Co., 194 Mo.App. 467; Wiedeman v. Taxicab Co., 182 Mo.App. 528; Bosco v. Boston Store, 195 Ill.App. 133. (3) Where an automobile is identified by the number of its license plate and the automobile has a name on it, it is presumed that the automobile was owned by party whose name is on it, was being used on the business of the owner, but this presumption may be met and overcome by evidence. Bogorad v. Dix, 176 A.D. 774, 162 N.Y.S. 992; McCann v. Davison, 130 N.Y.S. 473 Ferris v. Sterling, 214 N.Y. 249; Patterson v. Milligan, 12 Ala.App. 324. (4) Evidence that defendant's truck was being operated at the rate of twenty to twenty-five miles per hour in turning the corner at Ninth street and Cass avenue, north, and operating it on the wrong side of the street, and collided with plaintiff's wagon on the west side of street going south, is sufficient to show that said truck was operated in violation of the Laws of Missouri, 1911, page 330, which required the operator to use the highest degree of care. Laws of Missouri, 1911 page 330; Fields v. Sevier, 184 Mo.App. 685; McFern v. Gardner, 121 Mo.App. 1; Hall v. Compton, 130 Mo.App. 675; Wheeler v. Wall, 157 Mo.App. 38; Millman v. Appleton, 124 N.Y.S. 482.
This action for personal injuries resulted in a verdict and judgment for plaintiff in the sum of $ 2,000, from which the defendant has appealed, assigning error in the court's action in refusing to peremptorily instruct the jury to return a verdict for defendant at the close of plaintiff's evidence, which was the only evidence introduced in the case.
Plaintiff, a driver of a team and wagon, proceeding southwardly on the west side of Ninth street, a north and south public thoroughfare, and when about fifty feet north of Cass avenue, an east and west street, was thrown to the street and injured by reason of a truck, while being driven northwardly on Ninth street, striking the left front wheel of the wagon on which plaintiff was sitting.
The demurrer filed by the defendant at the close of plaintiff's evidence presents two questions, namely, first, whether the plaintiff's evidence was sufficient to primafacie establish the necessary allegation in plaintiff's petition to the effect that at the time of the accident the truck was owned by the defendant and was then being operated by an agent of defendant acting within the scope of his employment; and second, whether the plaintiff's evidence was sufficient to substantiate any of the allegations of negligence set forth in the petition.
The accident referred to happened at about five o'clock in the afternoon of the 26th day of October, 1918, which was a business day. As stated, the plaintiff was proceeding southwardly on the west side of Ninth street, a proper and lawful place for him to be at the time. When about forty or fifty feet north of where Cass avenue intersects Ninth street, the plaintiff's wagon on which he was riding was struck by an automobile truck which had turned north into Ninth street from Cass avenue and in some manner ran over onto the west or wrong side of the street and collided with the plaintiff's wagon. The evidence indicated that the rear wheels of the truck skidded over to that side, striking the left front wheel of the wagon, causing plaintiff to be thrown to the street and injured.
Plaintiff testified that after he was thrown to the street he raised up from the ground and looked at the truck, which was going north on Ninth street and by that time was perhaps forty or fifty feet from him, and saw the license number on the back of the truck, being No. 24038; that at the time of the collision the truck was going about twenty-five miles an hour and had turned from Cass avenue into Ninth street and swerved to the west side of Ninth street before the collision. Plaintiff stated that the truck appeared to be a large sized truck with curtains. He had never seen the truck before, but stated the wheels "looked to be yellow, a dirty looking yellow," and that the body of the truck was painted dark. The truck proceeded northwardly, and so far as the record discloses no one saw it except one witness, who stated that the truck looked like a large delivery truck. This witness arrived on the scene immediately after the accident, picked up the plaintiff from the street, and was given by plaintiff the number referred to. A police officer arrived shortly afterward and was given this number. This officer stated that he saw marks on the street in a semicircle which appeared to have been made by the skidding of an automobile. At about six o'clock, or one hour later, this officer went to the place of business of the defendant at Second and Chambers streets in the City of St. Louis, but found no one there except a night watchman, who admitted the officer to the garage of the defendant. The officer there found a truck which bore the license plate No. 24038, being the same number given him by the plaintiff. This appeared to be a large delivery truck painted dark red with a top on it and curtains down the side, and in the center of the truck there were stakes to be taken in and out to load and unload goods. The officer testified that this license number was on the back of the machine securely fastened under the bed of the truck, and that the name "Standard Stamping Company" was on the side of the truck. Plaintiff was unable to say whether the truck had any stakes on it. The officer does not say whether the stakes referred to were on the rear of the truck or on the side. He describes them as being in the center of the truck. If the stakes were on the side plaintiff could not have seen them when looking at the truck from the rear, as it was speeding away from the scene.
It is argued by defendant that the foregoing evidence is insufficient to establish ownership of the truck because of the improbability of the truthfulness of the plaintiff's story, in that the plaintiff having been thrown to the street landing on his back it would be impossible for him to observe the number on the license plate on the back of the truck which was speeding northward and away from him, considering the fact that the plaintiff testified the truck was going twenty-five miles an hour.
Considering the fact as shown by the evidence that the plaintiff was stunned by his fall to the street, it might appear to many as...
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