Barz v. Fleischmann Yeast Company

• Citation: 271 S.W. 361,308 Mo. 288
• Decision Date: 13 April 1925
• Docket Number: 23864
• Parties: EUGENE BARZ, Appellant, v. FLEISCHMANN YEAST COMPANY
• Court: Missouri Supreme Court

271 S.W. 361

308 Mo. 288

EUGENE BARZ, Appellant, v. FLEISCHMANN YEAST COMPANY

No. 23864

Supreme Court of Missouri

April 13, 1925

Motion for Rehearing Denied April 13, 1925.

Appeal from St. Louis City Circuit Court; Hon. H. A Hamilton, Judge.

Reversed and remanded.

Wm R. Schneider and F. J. Hoffmeister for appellant; C. P. Berry of counsel.

(1) The court erred in excluding as to the Fleischmann Yeast Company the plaintiff's offer of proof as part of his case in chief and in rebuttal, evidence to the effect that while the plaintiff was in the delivery automobile with the defendant Faeth, the latter told the plaintiff within thirty minutes or an hour after he ran over plaintiff with the delivery automobile of the company, that before he could take plaintiff home he had a couple of orders to deliver for the company, and that then he would take him directly home. Harriman v. Stowe, 57 Mo. 96; Par v. Illinois Fire Ins. Co., 178 Mo.App. 155; McDermott v. Ry Co., 73 Mo. 516. (2) A prima-facie case of the agency of defendant Faeth for the company having been made by showing that the delivery automobile had the name Fleischmann Yeast Company on it, and that Faeth was on the day of the accident, and prior and subsequent thereto, in the employment of the company, the admissions of the agent became admissible to prove his agency, and the court erred in excluding, as to the company, the evidence mentioned in Point 1 and offered as part of the plaintiff's case in chief and in rebuttal. A prima-facie case is established. Guthrie v. Holmes, 272 Mo. 215; O'Malley v. Const. Co., 255 Mo. 386; Gordon v. Bleeck Auto Co., 233 S.W. 265. Admissions of an agent are admissible to prove agency after prima-facie case is made. Peck v. Richey, 66 Mo. 118; Werth v. Ollis, 61 Mo.App. 407; Oil Well Supply Co. v. Metcalf, 174 Mo.App. 560; State ex rel. v. Henderson, 86 Mo.App. 482; Stenson v. Lancaster, 178 Mo.App. 346; Wharton v. Tierney-Toner Co., 217 P. 998. (3) The court erred in instructing the jury that "under the law and the evidence your verdict must be for the defendant Fleischmann Yeast Company." Plaintiff, having made a prima-facie case and more against the company, was entitled to have his case submitted to the jury as to the company. Lafferty v. Kansas City Cas. Co., 229 S.W. 750; Geiselman v. Schmidt, 106 Md. 586; Kunst v. Bullock, 59 Wash. 141; Williams v. Ludwig Floral Co., 252 Pa. 140; Edgeworth v. Wood, 58 N. J. L. 463; Schulte v. Holliday, 54 Mich. 73; Seaman v. Koehler, 122 N.Y. 646; Ferris v. Sterling, 214 N.Y. 252; Purdy v. Sherman, 74 Wash. 309; Vernarelli v. Sweikert, 213 P. 482.

Boyle & Priest and G. T. Priest for respondent.

The court properly excluded evidence as to what defendant Faeth, about an hour after the transaction, said he was going to do. First, because there was no evidence showing that the defendant Faeth was an agent to make any such statement on behalf of the Fleischmann Yeast Company; secondly, because it was hearsay. (1) It has been firmly established that an agency cannot be established by statements of the agent. The attempt to elicit testimony as to what Faeth said he was going to do was, of course, attempting to establish Faeth's agency by Faeth's statement. For this reason alone the court properly excluded it. (2) The court properly excluded it because it was hearsay. The evidence sought to be elicited relative to what Faeth had said was a statement which had no connection with the past transaction, the accident itself, but was simply a statement as to future intention of Faeth, what he was going to do in the future, wasn't a part of the res gestae, because it had no reference to the actual transaction itself, and was too remote in point of time.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

Plaintiff sued the Fleischmann Yeast Company and Joseph Faeth for damages in the sum of $ 15,000 for personal injuries sustained by plaintiff on April 9, 1919, by being run over by a Ford delivery truck owned and operated by the defendants. The case was tried February 7, 1922. At the close of the evidence the court instructed the jury to return a verdict for Fleischmann Yeast Company, and judgment was rendered accordingly, from which plaintiff appealed. The jury returned a verdict for plaintiff against Faeth for $ 3,000.

As plaintiff was walking across Clark Avenue at the intersection of Ninth Street in the city of St. Louis at about noon on April 9, 1919, he was knocked down and run over by a Ford delivery truck owned by respondent and driven by Faeth. Respondent's name was emblazoned on the side of the truck. Plaintiff lay unconscious on the pavement and was picked up by Faeth and a policeman and driven in the truck to a near-by dispensary, where he recovered consciousness. Faeth and the policeman then took plaintiff in the truck to a police station, where Faeth agreed to drive plaintiff to his home. This was within thirty minutes or an hour after the accident. Faeth, however, started in the opposite direction. Plaintiff asked him where he was going. Faeth replied "I am going to make some deliveries." On motion of the respondent this answer was stricken out, over plaintiff's exception, as hearsay and not a part of the res gestae. Whereupon plaintiff's counsel offered to prove by plaintiff that within thirty minutes or an hour after the accident Faeth stated to him that before he would take the plaintiff home he had a couple of orders to deliver for the Fleischmann Yeast Company and that he would then take him home. This offer was excluded by the court. Plaintiff further testified he was about one-third of the way across the street when he was struck; that he did not see the truck, nor hear a horn. He also testified as to his injuries.

Jule Quick testified: "I am a teamster. I was at the intersection of Ninth Street and Clark Avenue on April 9, 1919, I was on the east side of the street right at the Columbia Transfer corner, just going across the street, and I noticed there was an old man that looked like he was going to be hit, and I turned around and seen this old man dragged ten or fifteen feet under the machine. I just had time to get a side view of the automobile before it struck Mr. Barz. It was a Ford delivery truck with the name Fleischmann Yeast Company on the side. It ran right over Mr. Barz with both right wheels. He was about fifteen feet north of the south curb of Clark Avenue when he was struck. It looked to me as if the automobile that struck Barz was going about twenty-five miles an hour. There was no horn or signal sounded. If I had not jumped he would of gotten me, and I fell on my knees getting out of the road, and the old man was just behind me. Mr. Barz was all blood. I thought he was dead. I saw Mr. Faeth there; he was the man that drove the automobile."

For the defendants, Joseph Faeth testified: "On April 9, 1919, I was in the employ of the Fleischmann Yeast Company, working in the shipping room. At noon on that day I got in one of the Fleischmann delivery wagons to get my lunch at the northeast corner of Ninth and Clark. I went east on Clark and there was a Belt Line car in front of me at Ninth Street. It stopped at the southwest corner, then went north and I proceeded east to turn around, and Mr. Barz was cutting the corner and he stepped right in front of my machine, and I veered to the south and tried to get out of his way, and as I did so he jumped to the north and I hit him with my left fender. The car turning north on Ninth Street obstructed my vision of any one crossing diagonally. I blowed the horn. I saw no one else on the street at that time, and after I struck Mr. Barz I stopped the machine and helped pick him up. He asked me where he was, and I told him he met with an accident. He said he wanted to go home, and just then a policeman comes in another car, and him and I and this other gentleman helped put him in the car and we took him to the dispensary in our Ford delivery truck."

On cross-examination: "My duties for the Fleischmann Yeast Company were to pack yeast cartons. My duties were confined inside the shipping and receiving room. I had nothing else to do. On this occasion I went out about five minutes to twelve, and I saw the truck there and I cranked it up and went, thinking I could be back before the driver came down from the office. I am not employed to drive trucks. No one said I might take the truck to go to lunch. Mr. Lee then was chief clerk over me, now Mr. Stevens. I continued to work for the Yeast Company about three months. I called them up at the police station and told them I took the machine to go to lunch and that I had an accident and that I wanted to take this old gentleman home, and they said to go ahead and bring the car back and report to Mr. Lee. I had never taken a car out before or since. I was not discharged. After leaving the police station I went down south on Ninth to Simmons Hardware Company. I don't remember his asking me where I was taking him, nor do I remember saying to him, 'I have got a couple of orders to deliver and then I will take you home.' I made no such statement. I was dressed in a cover-all suit. It was not greasy; it had no automobile grease spots on it. Barz was about two feet away when I first saw him. I was looking directly east. After he was struck I went about five feet."

Harvey Stevens testified: "I am sales agent for the Fleischmann Yeast Company for the St. Louis territory. In April, 1919, I was known as general supervisor and was familiar with the general operations of the company's office. The duties of the shipping clerks were to pack the yeast and see that the shipments got out. They had no authority to perform any duties outside of the building. I don't remember whether or not I testified at the...