Falstaff Brewing Corporation v. Thompson, 11267.

Citation101 F.2d 301
Decision Date02 February 1939
Docket NumberNo. 11267.,11267.
PartiesFALSTAFF BREWING CORPORATION v. THOMPSON.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

I. J. Dunn, of Omaha, Neb. (I. Ziegler, W. C. Fraser, G. W. Becker, E. B. Crofoot, and D. L. Manoli, all of Omaha, Neb., on the brief), for appellant.

George B. Boland, of Omaha, Neb. (John D. Wear and G. F. Nye, both of Omaha, Neb., on the brief), for appellee.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action for damages brought by appellee as plaintiff below against appellant for personal injuries sustained by him in an automobile accident in Omaha, Nebraska. We shall refer to the parties as they appeared below. This is the second appeal. On the prior appeal, we reversed because of error in the instructions given the jury. Falstaff Brewing Corp. v. Thompson, 8 Cir., 89 F.2d 557.

Plaintiff alleged that on the afternoon of March 16, 1935, he was driving his automobile west on Ames Avenue, at about Fiftieth Street, in Omaha, Nebraska, going on the north side of said avenue in a westerly direction; that while so traveling, defendant's truck was being driven east on the south side of Ames Avenue down an incline; that suddenly the truck was driven from the south side of the street over to the north side and collided with plaintiff's automobile, forcing it off the highway and down a steep embankment; that defendant was negligent in (1) operating the truck at a speed of about fifty miles an hour; (2) failing to give plaintiff the right of way; (3) failing to accord plaintiff an equal portion of the highway; (4) failing to bring said truck to a stop, or change the course of same, so as to avoid colliding with plaintiff's automobile.

Defendant answered, denying that any truck owned by it or operated by it was involved in the accident, and alleging that if the accident occurred, it was caused by the negligence of the plaintiff.

At the close of all the evidence, defendant moved for a directed verdict, which motion the court denied, submitting the case to the jury on instructions, to certain of which defendant saved exceptions. The jury returned a verdict in favor of the plaintiff on all the issues, assessing his damages at $12,000, and from the judgment entered thereon defendant prosecutes this appeal.

The defendant contends that the court committed three classes of error: 1, in denying its motion for a directed verdict; 2, in the giving of certain instructions and in refusing certain instructions requested by defendant; 3, in certain of its rulings as to the admissibility of evidence.

There is no serious contention that the evidence as to negligence in the operation of the truck which collided with plaintiff's automobile was insufficient, but it is strenuously urged that the evidence did not establish that the offending truck (1) was owned by defendant, (2) that the person in charge was defendant's employee, and (3) that at the time of the accident the driver of the truck was acting for the defendant. Myers v. McMaken, 133 Neb. 524, 276 N.W. 167; Bainter v. Appel, 124 Neb. 40, 245 N.W. 16; Ebers v. Whitmore, 122 Neb. 653, 241 N.W. 126; Dirks v. Ensign Omnibus & Transfer Co., 107 Neb. 556, 186 N.W. 525; Weber v. Thompson-Belden & Co., 105 Neb. 606, 181 N.W. 649; Mackechnie v. Lyders, 134 Neb. 682, 279 N.W. 328.

In considering the question of the sufficiency of the evidence, we examine it only for the purpose of determining whether or not there was substantial evidence to sustain the verdict. Pryor v. Stawn, 8 Cir., 73 F.2d 595; Chicago, B. & Q. R. Co. v Kelley, 8 Cir., 74 F.2d 80; Columbian Nat. Life Ins. Co. v. Comfort, 8 Cir., 84 F.2d 291; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. In considering it for that purpose, the testimony in favor of plaintiff must be accepted as true, and he is entitled to such reasonable favorable inferences as may be fairly drawn therefrom. Where, so considered, the evidence is such that reasonable men may reach different conclusions, the motion should be denied. Illinois Power & Light Corp. v. Hurley, 8 Cir., 49 F.2d 681; Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co., 8 Cir., 64 F.2d 834.

So considered, the jury might have found on these contested questions that a truck of the kind operated by defendant and bearing its peculiar and individual markings — "Krug Luxus" in gold letters on the body, and under it, in smaller letters, "The Beer You Like," and on the front door, "Fred Krug Brewery Company" — was being driven on Ames Avenue in Omaha, Nebraska, in the vicinity of the accident at the time the accident occurred; that no truck of the defendant was authorized to leave the brewery except on business of the company; that the only time drivers of the defendant were authorized to go out was on orders from the shipping clerk, and, so far as known by the defendant, was the only time they went out; that the accident happened during business hours, between 4:30 and 5:30 p. m., and there was no evidence that the truck was being driven on a purely personal errand of any of the defendant's drivers; that trucks so marked made deliveries to the Cole Creek Tavern, and then frequently went north through Benson Park to Ames Avenue; that at 5 p. m. on the day of the accident, Collins, one of the defendant's drivers, left for the Cole Creek Tavern, which is seven or eight miles from defendant's brewery, and made delivery there at about 5:20 p. m.; that defendant employed six drivers; that two of these ceased work before 4 p. m. on March 16, 1935, and two others of them made their deliveries on that day south of Dodge Street; that the company's instructions were that the trucks were to be used only for beer deliveries and if any of the drivers ever had a truck away from the plant for any purpose other than for delivering beer, it was without the sales manager's knowledge and without the authority or consent of the defendant; that driver Collins was driving a red panel truck, such as was described in the testimony, the day of the accident; that the truck colliding with plaintiff's automobile had printed on it the words "Krug Luxus," "The Beer You Like," "Fred Krug Brewery Company," as described in the testimony; that such trucks were operated only by defendant's servants, and that when so operated they were used by defendant's servants in defendant's business.

It is said that the printing on this truck gave rise to a presumption of ownership, and that, we think, is undoubtedly true. But aside from that presumption, there was evidence that trucks so marked were the property of defendant and that when away from the plant of defendant, they were in charge of defendant's employees and employed in defendant's business.

It is the contention of defendant that although the name on the truck may have given rise to a presumption of ownership and of operation by its servants within the scope of their employment, yet the presumption in this case vanished as a matter of law because of convincing and uncontradicted evidence to the contrary. Silent Automatic Sales Corp. v. Stayton, 8 Cir., 45 F.2d 471; Ebers v. Whitmore, supra. If proof of ownership and operation within the scope of defendant's business were dependent wholly upon presumption, which we think it was not, still it can not be said that such presumption was overcome by convincing and uncontradicted evidence to the contrary. Evidence that the driver was not in the employ of the one whose name appeared upon the truck, if such evidence were uncontradicted and undisputable, would dispel the presumption of ownership. Bainter v. Appel, supra; Ebers v. Whitmore, supra. But there is no such convincing uncontradicted testimony in this case. To be sure, each of defendant's drivers denied that he was driving the truck, and there was testimony that none of defendant's trucks were in this part of the city at the time of the accident. But the jury was not required to believe this testimony, especially in view of testimony definitely identifying the accused truck as that bearing the names identifying it as defendant's, and the further evidence that at about the time of the accident one of these trucks, in charge of the driver Collins, had in fact made a delivery of beer at Cole Creek Tavern. If the plaintiff's case rested wholly upon presumption, it could not be said that it was overcome, and hence, vanished from the case by reason of convincing and uncontradicted evidence. It is only when uncontradicted proof clearly and distinctly establishes a fact so that reasonable minds can draw but one inference, that the presumption disappears or is destroyed. We can not say that the testimony and the attending circumstances shown by the evidence in this case pointed with compelling certainty to the inference that the accused truck was not the property of the defendant, or that it was not being operated by its employee in its business. The evidence produced to rebut the presumption or to dispel the inference was not uncontradicted nor convincing. Department of Water and Power v. Anderson, 9 Cir., 95 F.2d 577. In such circumstances, the verdict of the jury is conclusive on appeal.

It is argued that the physical facts are inconsistent with plaintiff's claim as to the collision. According to the testimony of plaintiff and his witness Lane, plaintiff's car was in the vicinity of an ice cream shack located on the north side of Ames Avenue, and plaintiff was on the north side of that street. With the exception of a small drift of snow in front of the shack, which did not impede travel, the avenue was clear and the pavement a glare of ice. The inconsistency claimed is that the truck, traveling at a speed of from 35 to 45 miles per hour, hurtled over the pavement which was coated with ice, suddenly swerving to the north, struck the right side of plaintiff's car and went around it without getting off the pavement, and then turned to the south...

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