Davis v. Sedalia Yellow Cab Co., 22248
| Decision Date | 06 June 1955 |
| Docket Number | No. 22248,22248 |
| Citation | 280 S.W.2d 869 |
| Parties | Nona E. DAVIS, Respondent, v. SEDALIA YELLOW CAB COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Boyle G. Clark, Raymond C. Lewis, Jr., Columbia, Hampton Tisdale, Booneville, for appellant.
Wesner & Wesner, Sedalia, Roy D. Williams, Booneville, for respondent.
This is a suit by a passenger in a taxicab for personal injuries allegedly resulting from an automobile-taxicab collision. Following a verdict and judgment for the plaintiff, Nona E. Davis, the Sedalia Yellow Cab Company appealed.
Respondent's petition sought recovery against the appellant Sedalia Yellow Cab Company, against the defendant taxicab driver, W. E. Williams, and against the driver of the other vehicle, M. J. Taylor. Respondent made a settlement with Taylor, and dismissed as to him prior to the trial. She dismissed as to the defendant Williams at the close of all the evidence.
On February 20, 1953, respondent Davis was riding as a passenger in a taxicab driven by W. E. Williams, an employee of the appellant, Sedalia Yellow Cab Company, and was proceeding west on Seventh Street in Sedalia, Missouri. M. J. Taylor was driving south on Moniteau Street, and, at the intersection of Seventh Street and Moniteau Street, the vehicles collided injuring respondent.
At the outset of the trial respondent offered in evidence the deposition of the driver of appellant's cab, W. E. Williams, who at that stage of the trial was a co-defendant. Appellant objected to the admission of the deposition upon the ground that it was admissible only against the defendant and not against the appellant cab company and upon the ground that it was hearsay as to the cab company, and pointed out further that Williams was present in court and could be called to testify. The court admitted the deposition over appellant's objection. Some of the admissions contained in it were very damaging to appellant.
As stated, at the close of all the evidence respondent dismissed as to the defendant taxicab driver, W. E. Williams. Thereupon appellant moved to strike all of the testimony contained in Williams' deposition upon the ground that it was inadmissible hearsay as to appellant. The motion was overruled, and, as to its first point, appellant asserts that this action upon the part of the court constituted error.
Our law has long been settled that an admission of a servant which is not a part of the res gestae and which is not made in the performance of the servant's duties, is inadmissible against the master.
In Shelton v. Wolf Cheese Co., 33, Mo. 1129, 93 S.W.2d 947, plaintiff was struck by an automobile and injured. He thereafter sued the owner of the automobile and the Wolf Cheese Company. Plaintiff took a nonsuit as to the owner of the automobile at the close of his evidence, but the case was submitted to the jury as to the Wolf Cheese Company. The only evidence showing that the accident occurred while about the business of the employer was an alleged admission to that effect by the manager of the Cheese Company. In holding that such testimony was inadmissible against the company, and that the plaintiff had therefore failed to make a submissible case, a unanimous Supreme Court stated at page 952 of 93 S.W.2d:
'* * * 'declarations' or admissions 'of an agent with respect to an act or transaction, made after the occurrence of the act or the completion of the transaction, are not provable against the principal. This rule is the basis for the exclusion of evidence of declarations of an agent that he had previously bound his principal by a contract, as well as for the exclusion of evidence of the admissions of a servant, whose alleged negligence causes injury to another, made long after the accident. Such statements are merely hearsay and like those of any other person, and cannot affect his principal. A rule that would allow an agent, after a transaction is closed, to admit away the rights of his principal, would be too dangerous to be...
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