Ferguson v. Reynolds

• Decision Date: 16 November 1918
• Docket Number: 3205
• Citation: 52 Utah 583,176 P. 267
• Court: Utah Supreme Court
• Parties: FERGUSON v. REYNOLDS et al

176 P. 267

52 Utah 583

FERGUSON v. REYNOLDS et al

No. 3205

Supreme Court of Utah

November 16, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. D. H. Morris, Judge.

Action by John B. Ferguson against C. B. Reynolds and another.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

J. Wood and Bagley & Ashton for appellants.

Marioneaux & Beck for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff recovered judgment against the defendants for damages which, he alleged, he suffered by reason of having been injured through the negligence of the defendants' chauffeur in backing defendants' automobile against the plaintiff, knocking him down and running over him on a public street of Salt Lake City. The plaintiff alleged that he was a street sweeper in Salt Lake City and was engaged in that work at the time of the injury. The chauffeur was backing the automobile out of a garage and, in doing so, plaintiff alleges, operated the car negligently without giving any signal or warning, contrary to a certain ordinance of Salt Lake City which is pleaded, and that by reason of such negligence plaintiff was injured as aforesaid. The defendants admitted the ordinance and that the plaintiff was employed by the city as aforesaid, and denied every other allegation contained in the complaint.

The ordinance in question, so far as material here, provides:

"No person in charge of a vehicle shall back the same without ample warning having been given by him; and while backing unceasing vigilance must be exercised not to injure persons or property in the rear," etc.

There is no dispute respecting the chauffeur's failure to give the warning in backing the car out of the garage, nor with respect to striking and injuring the plaintiff. The controversy arises (1) over the ownership of the car and (2) respecting the relation of the chauffeur and the defendants, and as to whether he was at the time acting in the course of his employment.

The defendants insist that the plaintiff did not establish the ownership of the car, and that there is no evidence that the chauffeur at the time of the injury was engaged in the business of the defendants, or either of them.

The defendants, at the close of plaintiff's evidence, interposed separate motions for nonsuit. The court overruled both motions, and they now insist that the rulings of the court constituted prejudicial error for the reason that the evidence fails to establish ownership of the car and also fails to show that the defendants, or either of them, was responsible for the chauffeur's acts in operating the car at the time of the accident. At the close of all of the evidence, defendants also requested the court to direct a verdict in their favor, which was refused, and which refusal is also assigned as error. Both assignments will be considered together.

We have a statute, chapter 80, Laws Utah 1915, which was in force at the time of the accident, which requires every owner of a motor vehicle to register such vehicle in the office of the Secretary of State. The application for registry, for the purpose of identification, must be made on blanks provided by the Secretary of State, and must contain the name, place of residence and address of the applicant, together with a brief description of the vehicle to be registered by giving its name and the name of the manufacturer, together with certain numbers and "motive power." The application must be signed by the owner of the vehicle and must be "verified by oath or affirmation." Upon the application being made as aforesaid, the Secretary of State must assign to each vehicle a distinctive number and must record the same in his office. The number must be furnished to the owner of the vehicle on duplicate plates which must be conspicuously displayed on the vehicle. The plaintiff produced in evidence an application dated January 8, 1916, which was signed, "C. B. Reynolds, by C. L. Reynolds." In this application the car causing the injury was fully described, and upon it were displayed the plates with the number which the Secretary of State had issued for the car. The application also contained the statement that C. B. Reynolds, one of the defendants, was the owner of the car in question. A like application was made on January 9, 1917, which was signed and sworn to by C. B. Reynolds. The same car is described in the 1917 application which was described in the one of 1916. The first application covered the year 1916, while the second was for the year 1917; applications being required to be made and filed in each year. In addition to the foregoing evidence, plaintiff also proved that the defendants were often seen driving the car which was described in the applications aforesaid and on it were displayed the plates with the numbers issued by the Secretary of State for the two years aforesaid; that the plaintiff was injured on the 14th day of November, 1916; that at the time of the injury the car was driven by one Neff; that said Neff, while in charge of the car, had at different times purchased gasoline for the car in the name of C. B. Reynolds and had the same charged to Reynolds who each month had paid for it; that said Neff on various occasions was seen driving the car with Mrs. C. B. Reynolds, one of the defendants; and that he, while she was present in the car, had purchased gasoline and had the same charged as aforesaid. It was further shown that on the morning of the accident Neff had taken the car to the garage to have it repaired by having some mica or isinglass put in the rear of the top, and that on backing the car out of the garage the plaintiff was injured as before stated. The evidence further showed that Neff, on the very morning of the accident, had purchased gasoline for the car and had it charged to C. B. Reynolds, and that the latter had subsequently paid for it. There was also evidence to the effect that C. B. Reynolds had notified the gasoline dealer to let his chauffeur have gasoline and to charge it to Reynolds, and that he would pay for it, all of which was done both before and after the accident.

The foregoing, in substance, constitutes plaintiff's evidence, except that he called Mrs. C. B. Reynolds, one of the defendants, as a witness, who testified that her husband at the time of the accident was away from home; that she had neither authorized nor directed Neff to take out the car on the morning in question, and that she did not know that he had taken it out until after the accident had occurred; that Mr. Neff was staying with her and her husband at her request and with the consent of her husband at the time, and had from time to time taken her out in the car at her request.

Defendants' counsel insist that the evidence is insufficient to sustain the verdict. In this connection, counsel contend that the applications made to and filed with the Secretary of State are not sufficient to establish the ownership of the car. We are unable to conceive why our statute was adopted if it was not for the purpose of furnishing at least prima facie evidence of the ownership of motor vehicles. The applicant is required to make oath or affirmation to the statements contained in his application, one of which relates to the ownership of the vehicle. We think the courts generally hold that the applications and numbers or certificates issued under statutes like ours constitute prima facie evidence that the applicant is the owner of the vehicle which is identified in the application. Under our statute the number issued to one owner may not be transferred, nor, in case the vehicle is sold to another, can the number be transferred to the transferee. Nor can the number issued for one vehicle be transferred to another vehicle. If therefore the person making the application for registry is found using the vehicle described in the application and which bears the number issued by the Secretary of State for such vehicle, it certainly constitutes some substantial evidence that such person is the owner of the vehicle so described and which bears...