Baker v. Maseeh

• Decision Date: 14 March 1919
• Docket Number: Civil 1591
• Citation: 179 P. 53,20 Ariz. 201
• Parties: BEN A. BAKER, Appellant, v. JOSEPH MASEEH, Appellee
• Court: Arizona Supreme Court

179 P. 53

20 Ariz. 201

BEN A. BAKER, Appellant, v. JOSEPH MASEEH, Appellee

Civil No. 1591

Supreme Court of Arizona

March 14, 1919

APPEAL from a judgment of the Superior Court of the county of Cochise. A. C. Lockwood, Judge. Affirmed.

Messrs Doan & Doan and Mr. Bruce Stephenson, for Appellant.

Mr Alexander Murry and Mr. J. D. Taylor, for Appellee.

OPINION

BAKER, J.

The plaintiff commenced this action against the defendant to recover damages for injuries to an automobile owned by plaintiff, and also for special damages.

It is set forth substantially in plaintiff's amended complaint that on the morning of May 26, 1916, the plaintiff was driving his automobile in an easterly direction along the public highway between Bisbee, Arizona, and Douglas, Arizona in Cochise county, and that when he had reached a point about eight miles west of Douglas, an automobile belonging to the defendant, coming from the opposite direction, ran into and collided with the plaintiff's automobile, breaking and wrecking it. It is also alleged that the defendant, by and through his agent, negligently operated the automobile, and thereby caused the collision.

The case was tried to a jury, and judgment upon the verdict in the sum of $605 was entered for the plaintiff, and the defendant brings this appeal from the judgment.

Plaintiff proved the accident and produced testimony tending to show that the automobile which ran into and collided with his automobile belonged to the defendant, and that the defendant was present in the machine at the time. He further proved that the automobile was being driven by a lady who was seated in the machine with the defendant, and that the machine was negligently operated.

No further proof was given in plaintiff's case that the automobile which caused the accident was then being operated by the defendant personally or by one in his employment and then engaged in his business.

At the close of the plaintiff's case, the defendant moved the court for a directed verdict upon the ground that the evidence was insufficient to form a basis for a finding that the driver of the defendant's automobile was his agent acting within the scope of her employment. This motion was denied.

Plaintiff argues that the motion for a directed verdict was properly denied, for the reason that proof of the fact that defendant owned the automobile which caused the damage was prima facie evidence that the vehicle was being driven for him and in his business, and in this contention we think plaintiff is correct. In the standard work of Shearman &amp Redfield on Negligence, volume 1, paragraph 158, it is stated:

"When plaintiff has suffered injury from the negligent management of a vehicle such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant to show that he was the owner of the thing without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time and that the accident was occasioned by the fault of a stranger, an independent contractor or other person for whose negligence the owner would not be answerable."

The excerpt taken from Shearman & Redfield on Negligence is quoted with approval in Houston v. Keats Auto Co., 85 Or. 125, 166 P. 531, and in Hays v. Hogan, 273 Mo. 1, Ann. Cas. 1918E, 1127, L.R.A. 1918C, 715, 200 S.W. 286.

In Norris v. Kohler, 41 N.Y. 42, it appears that William H. Norris who was killed while standing on the sidewalk peddling vegetables, was struck by the pole of a wagon to which a span of runaway horses was attached. The runaway team was proven to be owned by the defendant, and the name of the defendant was on the rear of the wagon. It was urged on appeal that it had not been shown that the person driving the team was in the service of the defendant. The court disposed of the objection thus:

"On the second point, whether the driver of the wagon was the servant of the defendant, the evidence consisted, first, of the fact of ownership. The property being proved to belong to the defendant, it is urged that a presumption arises that it was in use for his benefit, and on his own account. This argument, I think, is a sound one. The ownership of personal property draws to it the possession. The owner is entitled to have and to keep possession, and no other person can justly obtain possession until some act of authority from the owner is proved. Ownership implies possession, and possession is in subordination to title. No proof was given in the present case separating the ownership from the possession, and the presumption of law is that the wagon and horses of the defendant were in use in his service, and on his account."

This statement of the rule is approved in Ferris v. Sterling, 214 N.Y. 249, Ann. Cas. 1916D, 1161, 108 N.E. 406. There is, of course, no rule which applies differently to automobiles than to other vehicles.

In Knust v. Bullock, 59 Wash. 141, 143, 109 P. 330, the court says:

"In cases of this kind, where it is shown that the wagon and team doing damaged belonged to the defendants at the time of the injury, that fact establishes prima facie that the wagon and team were in possession of the owner, and that whoever was driving it was doing so for the owner."

To the same effect are Purdy v. Sherman, 74 Wash. 309, 133 P. 440, and Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59, 133 P. 1020.

In Geiselman v. Schmidt, 106 Md. 580, 68 A. 205, the plaintiff offered evidence tending to prove that the horse and wagon driven against the plaintiff belonged to the defendant, and the court ruled that "the jury might reasonably conclude that the driver was his agent."

In Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 A. 833, there was evidence showing that the wagon which collided with the plaintiff was owned by the Vonderhorst Brewing Company. It was held that this was sufficient to justify the jury in concluding that the driver of the wagon was the agent of the owner of the wagon. The court there says:

"It is a reasonable presumption that a person driving the team of another is the agent or servant of the owner of the team, unless it be shown by the owner of the team that the contrary is the fact."

In West v. Kern, 88 Or. 247, L.R.A. 1918D, 920, 171 P. 413, being a case of collision between a motorcycle and an automobile, the court said:

"We hold that proof of ownership makes a prima facie case against the owner."

The rule that proof of ownership makes out a prima facie case is based upon the best of reasons. When an owner's car is being driven by another, that fact is presumably within the knowledge of the owner, and he can readily show that the vehicle was not being driven for him, if such be the fact. If the vehicle has been stolen, and is being driven by the thief, of if it has been loaned or hired to the driver who is...