Edwards v. Rubin

• Decision Date: 07 February 1928
• Parties: JAMES T. EDWARDS, APPELLANT, v. HARRY RUBIN, RESPONDENT. [*]
• Court: Missouri Court of Appeals

2 S.W.2d 205

221 Mo.App. 246

JAMES T. EDWARDS, APPELLANT, v. HARRY RUBIN, RESPONDENT. ^[*]

Court of Appeals of Missouri

February 7, 1928

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Joseph F. Coyle and Earl M. Pirkey for appellant.

(1) Substantial evidence tending to show that a defendant is the owner of the automobile or other vehicle which inflicts damage is prima-facie sufficient to charge defendant with the responsibility for its management and the truth of any rebutting evidence is for the jury. Barz v. Fleischman Yeast Co., 271 S.W. 361; Fleischman v. Polar Wave Ice & Fuel Co., 148 Mo.App. 132; Jackson v Beffa, 282 S.W. 163; Rockwell v. Stamping Co., 210 Mo.App. 175. (2) In this case there was direct testimony that Harry Rubin owned the car; this was not disputed and therefore this evidence was primafacie sufficient to charge Harry Rubin with the responsibility for its management and the court therefore erred in holding to the contrary; this is all the more true because defendants offered no evidence tending to exonerate Harry Rubin and he himself did not testify.

Kane Blackinton & Reid for respondent.

If any liability attaches to Harry Rubin in this case it must be shown by the evidence that Herman Rubin was his agent and at the time of the accident causing the injury was acting within the scope of Harry Rubin's employment or direction. It is conceded there was no effort to prove agency on the part of Herman Rubin. Hays v. Hogan, 200 S.W. 292; Keim v. Blackburn, 280 S.W. 1046; Mansfield v Howell, 279 S.W. 1058; Anderson v. Nagel, 259 S.W. 858; Calhoun v. Mining Co., 209 S.W. 320; Guthrie v. Holmes, 272 Mo. 215; Bright v. Thatcher, 215 S.W. 791; Balman v. Bullene, 200 S.W. 1068.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is an action for personal and property injuries in which plaintiff recovered a verdict and judgment against Harry Rubin and Herman Rubin, defendants. The court granted a new trial to defendant Harry Rubin, from which plaintiff appeals.

The pleadings and the facts touching negligence and injuries are not involved on this appeal. The sole question is as to the sufficiency of the record as to make a case for the jury against Harry Rubin, the owner of the car, the court having granted a new trial to this defendant on the ground that the demurrer as to him at the close of plaintiff's case should have been sustained.

There was direct and positive evidence that Harry Rubin owned the automobile which caused the accident, and that Herman Rubin was at the time driving same, and this is conceded by respondent. The record is absolutely silent, though Herman Rubin testified in the case, as to any family relationship of the Rubins. The accident happened on Delmar boulevard, this city, and in front of a building used by a Young Men's Association, from which the Rubin car had just started. There is no evidence as to where Harry Rubin was at the time of the collision. The automobile was a passenger car and the accident happened on Sunday.

The respondent did not testify and offered no proof as to the ownership of the car or on the question of the authority or lack of authority of Herman Rubin to drive same at the time of the accident. The sole question here is whether, ownership alone being proved, that is sufficient to take the case to the jury or to sustain a verdict against the owner under the doctrine of respondeat superior.

Appellant cites the cases of Barz v. Fleischmann Yeast Co., 271 S.W. 361; Fleischman v. Polar Wave Ice & Fuel Co., 148 Mo.App. 117, 127 S.W. 660; Jacobson v. Beffa, 282 S.W. 161, and Rockwell v. Stamping Co., 210 Mo.App. 168, 241 S.W. 979.

Respondent relies principally upon the case of Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, and Keim v. Blackburn, 280 S.W. 1046.

The trial judge found himself troubled by the fact that in the instant case the automobile was a pleasure car, not such a car as is ordinarily used in commercial business. We confess, this question has troubled us, but in the case of Jacobson v. Beffa, supra, where the facts were somewhat stronger than we find them in this case, this court announced that it could see no difference in that respect between a business and a pleasure car; that the same rule should obtain. In most of these cases cited the difficulty always has been to show ownership of the car.

In the case of Barz v. Fleischman Yeast Co., supra, the Supreme Court en Banc, though the opinion is divided, three judges concurring and three dissenting and one concurring in the result, held (in the opinion filed) that the mere showing of the ownership of the car is sufficient to raise the presumption of proper agency, and cites approvingly our case of Fleischman v. Polar Wave Ice & Fuel Co., supra, and also the case of O'Malley v. Heman Const. Co., 255 Mo. 386, 164 S.W. 565, quoting from the latter case as follows:

"There being sufficient evidence to warrant a finding of defendant's ownership of the wagon, it was not necessary . . . to show affirmatively that the driver was defendant's servant" and "was acting within the scope of his employment."

In Rockwell v. Stamping Co., supra, it is ruled that the showing of ownership of a car, the injury occurring while someone else was driving same, makes a prima-facie case without affirmative proof to further establish the fact that the truck was at the time being operated by a servant or employee of the defendant, acting within the scope of his employment.

It seems that if there is substantial evidence tending to show that defendant is the owner of the automobile which inflicts damages, then such is prima-facie sufficient to charge defendant with responsibility for its management, and the truth of any rebutting evidence is for the triers of the facts. The case of Barz v. Fleischman Yeast Co., supra, by the Supreme Court en Banc, is the latest case from that court on that point. That opinion announces the doctrine that a showing of defendant's ownership is enough without affirmatively showing that the driver was defendant's servant and acting within the scope of his employment. Hays v. Hogan, supra, is distinguishable on the facts, though the language of the opinion is in conflict with the language used in the later case of Barz v. Fleischman Yeast Co., supra.

The Barz case has often been cited by the appellate courts as authority for this and other rulings therein made. See the following: Spellmeyer v. Theo. Hiertz Metal Co., 272 S.W. 1062; Snyder v. Western Union Tel. Co., 277 S.W. 362; Jacobson v Beffa, 282 S.W. 161; Linton v. St. Louis Lightning Rod Co., 285 S.W. 183; Ford v. Ford Roofing Products Co., 285...