Chandler v. New Moon Homes, Inc.

• Decision Date: 11 September 1967
• Docket Number: No. 52704,52704
• Parties: Marjorie M. CHANDLER, Respondent, v. NEW MOON HOMES, INC., Appellant.
• Court: Missouri Supreme Court

Page 130

418 S.W.2d 130

Marjorie M. CHANDLER, Respondent, v. NEW MOON HOMES, INC., Appellant.

No. 52704.

Supreme Court of Missouri, En Banc.

Sept. 11, 1967.

E. J. Murphy, Butler, William J. Cason, Clinton, for plaintiff-respondent.

A. Warren Francis, Lloyd A. Hamrick, Roger J. Staab, Kansas City, Robert L. Spurrier, Butler, for defendant-appellant.

SEILER, Judge.

This is an action for personal injuries arising out of an automobile collision. From a verdict and judgment for plaintiff for $5,000 defendant appealed to the Kansas City Court of Appeals, which affirmed the judgment, and on defendant's application the case was by our order transferred here, largely because of the general interest involved in the holding of the Court of Appeals that proof by plaintiff of ownership by defendant corporation of the vehicle involved was sufficient to raise the presumption that the tractor unit was then and there being used in the defendant's business and that unless defendant offers evidence otherwise, the presumption continues and will finally support a verdict and judgment.

At about 3:30 p.m. on May 14, 1963, the plaintiff, Marjorie M. Chandler, was riding as a guest passenger in the right front seat of a 1959 Ford sedan, owned and driven by her husband, Russell Henry Chandler. The Chandlers were dairy farmers and resided about four miles south of Butler in Bates County, Missouri. They were on their way home, proceeding in a southerly direction on U.S. Highway 71. About three miles south of Butler, Highway 71 is intersected by Highway 52, which runs east. Abutting to the north and east of this intersection is a filling station and restaurant. Highway 71 is paved and carries two lanes of traffic, one north and one south. The weather was fair and the surface was dry.

Mr. and Mrs. Chandler said they had been proceeding south at about 65 miles per hour, but slowed down 200 to 300 feet from the north edge of the driveway to the restaurant, where they planned to stop for coffee, as was their custom. Mr. Chandler said his brakes were good and his signal lights were working. He signaled for a left-hand turn, did not see any northbound vehicle approaching when he got to the north edge of the restaurant parking area and made his left turn. It was not established where he turned on his signal with relation to where he turned or exactly what he did about looking south before turning or how far he could see to the south. Mr. Chandler continued his description of what then occurred: 'When I had my car approximately half way off of the highway I seen this truck coming at me from the south.' He estimated the truck's speed at this moment at 70 miles per hour (another witness placed the speed of the truck at 'at least 70 miles') and his own at 5 to 10 miles per hour. The back half of his automobile was then 'approximately middle of the northbound lane of traffic'. He said the truck's course of travel was 'coming off of the highway', between 100 to 150 feet away, closer to 100, when he first saw it. He testified further: 'Well, I started to speed up first, but then I seen he was coming on off of the highway and I set my brakes.' 'He hit us right on the right front corner of the car.' Mr. Chandler said the front of his car was 18 to 20 feet off the east edge of the pavement and no portion of his car on the highway when the collision with the truck took place; that his car was practically at a standstill. The Ford spun around, rolled north and stopped on the shoulder of the highway. The truck was a 1963 International tractor until with a shortened wheel base. A witness testified the truck left the slab at the intersection. It started rolling or somersaulting on impact, overturning three times and coming to a stop in the east ditch, next to the fence some 20 to 30 feet off the highway.

Ronald Kahn, manager of Kahn Chevrolet Company, Butler, Missouri, where the tractor was towed and stored, said the drive shaft and wheel base had been shortened, which made the vehicle top-heavy and hard to handle under braking. He said he was familiar with such vehicle modifications and had driven such a vehicle; ¹ that the wheel base is shortened to enable such vehicles to transport a long load, that this was 'a trailer-hauling vehicle.' Kahn testified without objection that according to his records 'New Moon, Incorporated, 1515 East 4th Street, Grand Island, Nebraska' was the owner of the vehicle. Plaintiff's exhibit 7, the repair invoice, was so made out, with a wrecker service charge of $30.00 and storage charges of $75.00 and was marked 'Paid'. Witnesses testified they observed, and the snapshot exhibits of the tractor show, the words 'New Moon' on the doors and rear of the tractor.

The defendant offered no testimony.

Defendant contends its motion for directed verdict should have been sustained because no showing was made the driver was guilty of any negligence. Excessive speed was the only ground on which plaintiff submitted. From the evidence the jury could reasonably have believed the northbound tractor unit approached the intersection at a speed of 70 miles per hour, left the slab on Highway 71 at the junction, travelled across the parkway area, hit plaintiff's vehicle well out on the east shoulder, and then overturned three times before coming to rest in the ditch. This authorized submission of the excessive speed issue to the jury and defendant's contention is overruled.

Defendant says further there was no evidence that the operator of the tractor unit was 'an agent' of defendant and 'acting within the scope of his employment at the time of collision'. Another assignment presents this same question by alleging error in given Instruction No. 3, which submitted 'scope of employment' to the jury--defendant says, without evidence.

The plaintiff offered no evidence as to either the status or the mission of the driver of the truck. The only evidence as to his identity comes from the defense attorney's inquiry of Dr. Ronald, coroner of Bates County (who was also plaintiff's treating doctor) whether he had occasion 'to examine the other driver involved in the collision of May 14th, 1963, Mr. George H. Gallagher'. The coroner responded that he had examined this person whom defendant's attorney had named as Gallagher, but upon objection, the court refused the answer. Plaintiff's main instruction referred to the driver of the truck as Gallagher. Defendant's answer denied generally plaintiff's allegations that the truck at the time was in charge of defendant and was being operated by its agent, servant and employee. The plaintiff at no time made an effort through interrogatories or by deposition to determine if the truck driver was defendant's employee or to determine if he was at the time acting within the scope of his employment. Of course, unless the negligent operation of the truck by the driver at the time, whatever his name, was within the scope of his employment, defendant would not be liable. This is an essential element of plaintiff's case which she carries the burden of proving by evidence.

The record shows only the following: (1) the vehicle in question was being operated as a tractor unit at the time of the collision, without any trailer or load; (2) the words or sign name of 'New Moon' were stamped or painted on two of the truck doors and on the rear end, and the garage owner testified without objection that according to his records, 'New Moon, Incorporated, 1515 East 4th Street, Grand Island, Nebraska,' was the owner; (3) the towing and storage were billed to and apparently accepted by the defendant company; (4) defendant's attorney referred to 'George H. Gallagher' as driver of the truck at the time of the collision.

It appears, therefore, that plaintiff's proof on this essential element consists only of whatever presumption, if any, arises from proof that defendant company owned the vehicle. We find no proof, or showing, or definite affirmative evidence that Gallagher was an employee of any sort of defendant company at the time of the accident or if he were, that he was within his scope of employment. Plaintiff says that proof of truck ownership is sufficient to raise the presumption that defendant not only owned the truck, but that it was then and there being used in defendant's business, and that unless defendant offers evidence otherwise, this presumption continues, and will finally support a verdict and judgment. Defendant disagrees.

The proposition enunciated in Guthrie v. Holmes (banc) 272 Mo. 215, 198 S.W. 854, that proof of ownership of the vehicle together with proof that the driver was in the general ² employ of the owner raises the presumption that the driver was acting within the scope of his employment, has been reaffirmed many times by this court, Bond v. St. Louis-San Francisco Ry. Co. 315 Mo. 987, 288 S.W. 777, 782; State ex rel. Kurz v. Bland (banc), 333 Mo. 941, 64 S.W.2d 638, 641; Collins v. Leahy, 347 Mo. 133, 146 S.W.2d 609; Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35, 42; Rosser v. Standard Milling Company (Mo.Sup.), 312 S.W.2d 106, 111; Snead v. Sentlinger (Mo.Sup.), 327 S.W.2d 202, 205; Terminal Warehouses of St. Joseph, Inc. v. Reiners (Mo.Sup.Div. 1), 371 S.W.2d 311, 316.

In Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A.1918C, 715, decided the same year as Guthrie, the court rejected the contention that ownership of an automobile by the father together with the fact it was being driven by the son with the father's consent was sufficient to raise a presumption the son was acting as agent and servant and within the scope of his authority. In Berry v. Emery, Bird, Thayer Dry Goods Co., 211 S.W.2d l.c. 42, the admitted facts that the truck belonged to the defendant transfer company and that the driver was in its general employ were declared by the court to be 'barely sufficient in themselves to give rise to the procedural presumption that defendant Bailey, who was...