Burke v. Shaw Transfer Co.

• Decision Date: 26 June 1922
• Docket Number: No. 14421.,14421.
• Citation: 243 S.W. 449,211 Mo. App. 353
• Parties: BURKE v. SHAW TRANSFER CO.
• Court: Missouri Court of Appeals

243 S.W. 449

211 Mo. App. 353

BURKE v. SHAW TRANSFER CO.

No. 14421.

Kansas City Court of Appeals. Missouri.

June 26, 1922.

Rehearing Denied July 10, 1922.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by Ada F. Burke against the Shaw Transfer Company. From judgment for plaintiff, defendant appeals. Affirmed.

Guthrie, Conrad & Durham and Hale Emits, all of Kansas City, for appellant,

Davis & Woodruff, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries.

On the day of the injury, November 6, 1919, plaintiff, a married woman, living in Kansas City, was returning from the funeral of one Walter Fleming, to whose family she was related by marriage. Defendant, a corporation, operates a line of automobiles and taxicabs for hire in said city and employs drivers or chauffeurs in the operation of such vehicles. On the day in question the widow of said Walter Fleming engaged the undertaking firm of D. W. Newcomer's Sons to take charge of the funeral, and to provide a suitable number of vehicles to convey persons attending the funeral from their homes, or from the residence of the deceased, to the church, thence to the cemetery, and to return them to their respective homes. With these objects in view, the undertaking firm placed an order with defendant for two cabs with drivers to supplement the number of its own conveyances. One of the cabs furnished by defendant was driven by one A. B. Ross, who was in the general employ of defendant as driver or chauffeur at that time. Ross first drove to the home of Mrs. Fleming, 3118 Holmes street, and there received two passengers, who were taken to the undertaking chapel. From said chapel he took passengers to the church where the funeral service was conducted, and thereafter took several passengers, including plaintiff, to the cemetery at Twenty-Third street and Jackson avenue, where the interment took place. On leaving the cemetery plaintiff, accompanied by a Mrs. Rogers and Miss Rogers of Clarinda, Iowa, members of deceased's family, got into the cab driven by Ross, and in addition to these two other women and a little girl also entered the cab. There is testimony tending to show that the undertaker in charge directed the woman with the child to enter the cab at the cemetery, she not having been in the cab on the trip from the church to the cemetery. Aside from this circumstance it does not appear that the undertaker gave any directions relative to the operation of the cab. Ross testified he did not remember the occurrence above detailed, saying: "I did not pay any attention. The cab was loaded." He stated that, when it was loaded, he asked the passengers for their addresses, and then proceeded to drive them to their respective homes.

He first made two stops near Tenth street and Cleveland avenue, where two of the women alighted, leaving plaintiff, Mrs. Rogers, and Miss Rogers in the car. They directed the driver to 3118 Holmes street as the next stop, and there Mrs. Rogers and her daughter alighted. Plaintiff then was the only remaining passenger, and when she gave her address as 3003 Independence boulevard the chauffeur remonstrated because she had not told him where she wished to go when the car was at Tenth street and Cleveland avenue, a point much nearer her home. Leaving the Holmes street place the car was driven north on Holmes, according to the testimony of Ross, turned east on Twenty-First or Twenty-Second street to Charlotte street, thence north to Eighteen street, east to the Paseo, north to Admiral boulevard, and thence to the address of plaintiff on Independence boulevard.

Plaintiff testified the car was being driven at a high rate of speed, and that, in turning the corner off of Holmes street, it "struck something," and "when he struck whatever this was, I seemed to jump in the air. It threw me, struck my head, and I reeled and started to catch something. * * * That was the last I remember until. I got to 12th and Paseo. When I came to myself my hat was off, my hair was down, and: was crying. I rapped on the glass, and tried to call the driver's attention. He didn't seem to hear me, because he didn't pay any attention to me." Plaintiff further stated that on reaching her home the driver opened the cab door without leaving his seat, and allowed her to alight from the cab unassisted; that her hair was down, her hat off, and she was crying. She stated that she said to the driver, after she got out of the car, "Young man, do you know you have almost killed me?" and he replied, "Yes; that was a hell of a bounce." Ross denied this conversation, but stated he recalled that plaintiff asked his number, and that he gave it to her.

The petition alleges facts practically as above set forth, and states that plaintiff was a passenger for hire in one of defendant's automobiles, and that "said automobile and taxicab, through the negligence and carelessness of defendant, and of its agent, servant, and employé, as aforesaid, was caused to give an instant, abrupt, sudden, and unusually violent lurch, jerk, and bump, causing the plaintiff to be thrown suddenly and violently from the seat which she was occupying, * * * to and against the top and roof of said taxicab and automobile, by reason of which she was injured," etc. The petition also states that said taxicab "was then and there being operated by, and was under the sole control and management of, defendant's agent, servant, and employé in charge of said automobile and taxicab, and the same was then and there operated for defendant in the course of its business."

The injuries alleged to have been sustained by plaintiff are:

"A severe bump, lasceration and abrasion of her head, * * * a fracture of the skull, and a severe shock and concussion in and to her spinal cord, spinal column, and all of her nerves and her nervous system; she has been rendered sick and nervous, has suffered a complete nervous collapse, and her nerves and nervous system have been shocked, diseased, and injured; she has lost and will in the future be required to lose her regular and natural sleep and rest; she has lost the normal and natural use of her voice; she has lost flesh, and has lost the appearance, color, and complexion of a well, healthy woman, and has been caused to be and appear as a delicate, unhealthy, and sickly woman; she has been rendered unable to perform her usual work, and engage in her usual activities, and has been and will in the future be required to be under the constant care and attention of a physician; she has been caused to suffer and will in the future be caused to suffer from chronic headaches and pains in her head, shoulders and neck."

Further, it is stated that—

"All of plaintiff's injuries aforesaid are permanent and lasting in their nature, character and effect."

Damages are sought in the sum of $20,000. The answer is a general denial. Upon the pleadings thus made, the cause went to trial to a jury. At the close of all the evidence defendant asked an instruction directing a verdict in its favor, which the court refused. Verdict was for plaintiff in the sum of $5,000, and judgment therefor was entered accordingly. Motion for new trial was overruled, and defendant appeals.

It is in evidence that the cab in which plaintiff claims to have been injured was furnished by defendant, and that a charge therefor was made by defendant to the undertaking firm of $7.50 for the cab and services of the driver. It was a custom of undertakers to engage cabs of defendant for funerals, and a monthly charge, or statement, was rendered by defendant for cabs so engaged, and 10 per cent. of the amount so charged was retained by the undertaker. The undertakers then charged the family employing them for such services, and on the occasion in question such charge was made to the widow of the deceased.

There seems to be no material conflict in the evidence as to the principal facts in the case. Plaintiff's case is bottomed on the negligence of the driver of the cab, and the chief question for our consideration is whether said driver, at the time in question, was the servant of defendant or of the undertaker. Defendant urges its demurrer should have been sustained for the reason that the cab and driver were under the control of the undertakers, and that defendant was not responsible for the acts of the driver.

It is conceded the fact that the cab was owned by defendant, and the driver was under the general employment of defendant, would raise a presumption that the driver was defendant's servant, and the defendant therefore, liable for his acts. But, as a general rule, presumptions may be rebutted and, if sufficient evidence Is produced to overcome such presumption, the presumption fails. Of the cases chiefly relied upon by defendant in support of his position in this respect is Simmons v. Murray (Mo. App.) 234 S. W. 1009, a decision by this court, opinion by Trimble, P. J.

There is a distinction between the Simmons Case and the one at bar in this: In the former case both the general and special employers were made parties defendant, and the finding of this court was directed to the question of whether or not there was sufficient evidence produced to justify the submission to the jury of the question as to whether the servant, at the time of the injury in question, was under the control of the special employer or of his general employer. The jury found it was the special employer who had control of the driver. This court ruled that the special employer actually had given directions to the servant as to the care with which the car should be driven; had instructed him to report accidents to it; that the servant was under the immediate direction and control of an agent of the special employer, and that such agent of the special master was present and directed the movements of the driver. Upon this state of facts the court held the evidence sufficient to support a...