Fleishman v. Polar Wave Ice & Fuel Co.

• Decision Date: 06 February 1912
• Citation: 143 S.W. 881,163 Mo.App. 416
• Parties: SARAH FLEISHMAN, Respondent, v. POLAR WAVE ICE & FUEL CO., Appellant
• Court: Missouri Court of Appeals

143 S.W. 881

163 Mo.App. 416

SARAH FLEISHMAN, Respondent, v. POLAR WAVE ICE & FUEL CO., Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1912

Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Watts Gentry & Lee for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action against the defendant, in that it merely charges that the negligent act complained of was committed by one of the "defendant's agents, servants and employees" instead of charging that it was done by defendant or stating facts showing that the servant was at the time acting in the scope of his employment as defendant's servant. Briscoe v. Railroad, 130 Mo.App. 513; Drolshagen v. Transit Co., 186 Mo. 285; Snyder v. Railroad, 60 Mo. 413; 26 Cyc., pp. 1571 1572; 13 Ency. Pl. & Pr., p. 922; Davis v. Houghtelin (Neb.), 14 L.R.A. 737; McCann v. Tillinghast, 140 Mass. 327; Railroad v. Voght, 26 Ind.App. 665; Benton v. Mfg. Co., 26 R. I. 192; Railroad v. Palmer, 13 Ind.App. 161; Radke v. Schlundt, 30 Ind.App. 213; Fisher v. Jockey Club, 50 A.D. 446; Smith v. Railroad, 124 Ind. 394. This point may be raised for the first time in the appellate court. Epperson v. Postal Tel. Co., 155 Mo. 346; Davis v. Jacksonville S. E. Line, 126 Mo. 69; Ball v. Neosho, 109 Mo.App. 683; Cartwright v. Telephone Co., 205 Mo. 126. (2) The court erred in sustaining an objection to defendant's offer to prove that defendant's manager had made a thorough investigation to try to learn about the accident, had made inquiry of every driver, and had made every possible effort to ascertain the name of the driver in charge of the wagon which is alleged to have caused injury to plaintiff, but had been unable to learn the name of the driver or to learn anything about the accident and had received no report of the occurrence. Under these circumstances a presumption unfavorable to defendant arose because of not putting the driver on the stand. Wigmore on Ev., sec. 285; 16 Cyc. 1062; Nelson v. Hall, 104 Mo.App. 466; Bent v. Lewis, 88 Mo. 462; Johnson v. Railroad, 130 S.W. 413. Defendant had a right to offer any evidence which would explain its failure to produce the driver and thus rebut the unfavorable presumption. 1 Wigmore on Ev., sec. 286; Peetz v. Railroad, 42 La. Ann. 541; Bank v. Hyland, 53 Hun 108; Railroad v. Mason, 124 Ga. 776; Warth v. Lowenstein, 219 Ill. 222; Lichtenstein v. Case, 99 A.D. 570; Tel. Co. v. Waller, 37 Tex. Civ. App. 516; Hirsch v. Railroad, 96 N.Y.S. 333; Hope v. Railroad, 82 Ill.App. 311; Shadledsky v. Railroad, 88 N.Y.S. 1014.

Joseph F. Coyle, Robert Kelley and Charles E Morrow for respondent.

(1) The petition is good against an attack for the first time in this court, for the facts stated necessarily imply that the act was done about the master's business and within the scope of his employment. Travers v. Railroad, 63 Mo. 422; Voegeli v. Marble & Granite Co., 49 Mo.App. 643; Todd v. Havlin, 72 Mo.App. 565; Briscoe v. Railroad, 130 Mo.App. 513; Daugherty v. Lord, 28 N.Y.S. 720. (2) Under the circumstances in this case the defendant's failure to explain amounts to a confession. The failure of the defendant to call these witnesses raises the strongest presumption against it. Reyburn v. Railroad, 187 Mo. 575; Wigmore on Evidence, sec. 285; Nelson v. Hall, 104 Mo.App. 466; Bent v. Lewis, 88 Mo. 462; Johnson v. Railroad, 130 S.W. 413. What the drivers may have said to the defendant's manager on his investigation was the rankest hearsay and was clearly inadmissible. Defendant has cited no cases holding such evidence competent.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered in the amount of $ 4500, and defendant prosecutes the appeal.

Defendant is an incorporated company engaged in the ice and coal business in the city of St. Louis, and maintains a branch of its business at Eleventh and Wash streets, near the point where plaintiff received her injury. At this place defendant kept coal, wood, and ice in its yard and buildings, and horses and wagons in its stable. Plaintiff resided at 1006 North Eleventh street, which is located immediately across the street from defendant's branch establishment. At the time of her injury, she was walking north on the sidewalk on the east side of Eleventh street and in the act of passing the stable of the Moll Grocery Company, numbered 1020 on North Eleventh street. It was about noon, and a large wagon owned by the Moll Grocery Company, from which the team had been detached to be fed, was standing in the street with its tongue protruding toward the sidewalk where plaintiff was passing. The evidence for plaintiff tends to prove that immediately before her injury she heard a wagon and team drive out of defendant's place of business and travel northward on Eleventh street and collide with the wagon standing in front of the Moll Grocery Company's stable. The proof goes to show that as the wagon collided with the one standing in the street, plaintiff observed the words "Polar Wave" painted thereon, but thereafter became unconscious as a result of the collision. The wagon which collided with that of the Moll Grocery Company standing in the street is said to have been loaded with either cinders or manure and driven by a colored man. As a result of the collision of defendant's wagon with the one standing in the street, the stiff tongue of the latter was thrown around and against plaintiff, so as to inflict serious, painful and permanent injuries upon her. There are other circumstances in evidence tending to prove the wagon and team which occasioned plaintiff's injury were owned by defendant and in charge of its servant, but this matter is stoutly denied throughout the record.

The case was here on a former appeal and is reported. See Fleishman v. Polar Wave Ice & Fuel Co., 148 Mo.App. 117, 127 S.W. 660, to which reference is made for a further statement of facts. But it should be said that additional evidence was introduced for plaintiff in the more recent trial and there can be no doubt that a prima facie case is abundantly made for her on every proposition essential to a right of recovery. It is argued for defendant that the petition is wholly insufficient, for the reason that it omits to allege defendant's servant driving its wagon was at the time pursuing the master's business and within the scope of his employment. We are not impressed with this argument in the least; for the sufficiency of the petition is to be considered from the standpoint of after verdict, when all reasonable inferences and implications in its favor must be taken into account. Had the point been made by demurrer, it would no doubt possess more force than in the present posture of the case, but it was not so made. That portion of the petition involved in this attack is as follows: The allegation is, "One of defendant's agents, servants and employees, in charge of and driving one of defendant's wagons north on said North Eleventh street, whose name is to this plaintiff unknown, negligently and carelessly drove and ran the defendant's wagon so driven by him into and against the wagon so standing on said North Eleventh street, etc., etc." From this it appears the averment is, that one of defendant's servants in charge of and driving one of defendant's wagons drove and ran the defendant's wagon so carelessly as to occasion her injury. The averment that defendant's servant was in charge of its wagon implies that he was there by authority of defendant, for such is the meaning involved in the words "in charge of" in the sense here employed. No one disputes or denies so much of the proposition thus stated, but it is suggested, though such be true, the petition should aver more and say that such servant was at the time engaged either in the master's business or within the scope of the servant's employment. Upon allowing to the petition all that its words imply and considering all reasonable inferences arising therefrom, as we must, together with such presumptions as the law usually indulges in favor of correct conduct, it must be viewed as though the servant was acting within, and not in violation of, his duty at the time. Such is the presumption which the law universally indulges when nothing to the contrary appears. It appearing, then, that defendant's servant was driving its wagon by its authority, it is necessarily implied that he was acting within the scope of his duty in pursuance of the master's business. On this question we reaffirm the doctrine of Todd v. Havlin, 72 Mo.App. 565, which is directly in point, and cite, as well, in support thereof, Doherty v. Lord et al., 28 N.Y.S. 720; Briscoe v. C. B. & Q. R. Co., 130 Mo.App. 513, 109 S.W. 93. Though the petition may be regarded defective in respect of this matter, on demurrer thereto, it is abundantly sufficient after verdict and judgment.

There is no direct testimony tending to prove the wagon, which was so negligently driven and occasioned plaintiff's injury was either owned or controlled by defendant, or that the driver thereof was its servant. A few circumstances, together with the fact that the words "Polar Wave" were painted on the side of the wagon, alone are relied upon as to this all-important matter, and defendant stoutly denies that it either owned or controlled the wagon, or that the driver was its servant. Indeed, defendant denies having any knowledge with respect of the matter whatever, except through a complaint from plaintiff's father a few hours after the injury occurred. Plaintiff's...