Glassman v. Harry

• Decision Date: 05 October 1914
• Docket Number: No. 11140.,11140.
• Citation: 182 Mo. App. 304,170 S.W. 403
• Parties: GLASSMAN v. HARRY.
• Court: Missouri Court of Appeals

170 S.W. 403

182 Mo. A. 304

GLASSMAN v. HARRY.

No. 11140.

Kansas City Court of Appeals. Missouri.

October 5, 1914.

1. MASTER AND SERVANT (§ 330) — MASTER'S LIABILITY TO THIRD PERSONS — SCOPE OF SERVANT'S EMPLOYMENT — PRESUMPTION.

Proof that the automobile which inflicted the injuries belonged to defendant, and that the chauffeur who was driving it was in the defendant's employ, raises a presumption of fact, in the absence of affirmative evidence to the contrary, that the chauffeur was acting in the line of duty.

2. MASTER AND SERVANT (§ 302) — SCOPE OF SERVANT'S EMPLOYMENT — NEGLIGENCE OF SERVANT.

Where a chauffeur took his employer's automobile at night, in violation of express orders, to earn money for himself by bringing in a disabled car, he was not acting within the line of his duty, and the employer is not liable for his negligence while on such trip.

3. MASTER AND SERVANT (§ 330) — INJURIES TO THIRD PERSONS — ACTIONS — EVIDENCE.

Where affirmative, uncontradicted evidence of the defendant, from which reasonable men could not draw different conclusions, established that the defendant's chauffeur was acting outside the scope of his employment at the time of the accident, a verdict against the defendant cannot be sustained on the theory that, the plaintiff having established a prima facie case resting on the presumption that the servant was acting within the scope of his employment, it cannot be said as a matter of law that the defendant's evidence disproved the prima facie case, since the presumption ceased as soon as the positive evidence upon the point was introduced.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by Rosa Glassman against O. K. Harry. Judgment for plaintiff, and defendant appeals. Reversed.

G. W. Duvall and Cowherd, Ingraham, Durham & Morse, all of Kansas City, for appellant. John F. Cell, of Kansas City, for respondent.

TRIMBLE, J.

This is an action for damages by the widow of Isadore Glassman, deceased, for the negligent killing of her husband. Somewhere near 11 o'clock at night on October 14, 1910, he was struck and killed by defendant's automobile while the same was being driven by defendant's chauffeur along McGee street between Nineteenth and Twentieth streets. The only issue in the case is whether the chauffeur was in the line of his employment or acting within the scope of his service to defendant at the time of the injury. Defendant demurred to the evidence, but this was overruled, and the case submitted to the jury and a verdict of $3,250 obtained, upon which judgment was rendered. From this defendant has appealed.

Plaintiff proved that she was Isadore Glassman's widow; that he was killed by being run over by an automobile; that the automobile was owned by defendant; and that the chauffeur driving the automobile was in defendant's employ. There was no showing further than this; no facts presented from which it appeared or could be inferred that in making this particular trip the chauffeur was doing it in the service of defendant, or for his or his family's benefit. Neither defendant nor any member of his family was in the automobile at the time. Only the chauffeur and a friend of his, another chauffeur, were in the car. So that nothing was shown affecting defendant's liability for what happened, save that the car belonged to defendant and that the chauffeur was a man in defendant's employ. Such a showing raises a presumption of fact that the chauffeur was acting in the line of his employment. Long v. Nute, 123 Mo. App. 204, loc. cit. 209, 100 S. W. 511; Shamp v. Lambert, 142 Mo. App. 567, loc. cit. 574, 121 S. W. 770. And if nothing further is shown, such presumption served in the place of affirmative evidence that the chauffeur was in the line of his duty, and entitles the plaintiff to go to the jury and receive a verdict at their hands.

But in this case the presumption of fact that the chauffeur was at the time within the scope of his service and employment was displaced and set aside by evidence that he was not acting in the line of his employment. It was proved that the chauffeur had positive orders not to take the car out of the garage at night unless orders were given to him to do so; that the defendant refused to allow his car to go out at night; that when it was taken out by the chauffeur on this occasion, it was without the defendant's knowledge or consent. Moreover, the evidence showed that the automobile on the occasion in question was not...