Griffey v. Koehler

• Decision Date: 07 June 1932
• Docket Number: No. 21844.,21844.
• Parties: GRIFFEY v. KOEHLER et al.
• Court: Missouri Court of Appeals

50 S.W.2d 693

GRIFFEY v. KOEHLER et al.

No. 21844.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Action by Pink Griffey against Andrew Koehler and others, subsequently dismissed except as to defendant named. Verdict for plaintiff, and from an order granting defendant's motion for a new trial, plaintiff appeals.

Affirmed, and cause remanded.

George F. Heege, of Clayton, for appellant.

Walter Wehrle, of Clayton, for respondent.

BENNICK, C.

This is an appeal by the plaintiff from an order of the circuit court of St. Louis county, sustaining the defendant's motion for a new trial.

The action is one for damages for personal injuries which were sustained by plaintiff, Mrs. Pink Griffey, in an automobile collision which occurred on the Manchester road, in St. Louis county, on June 29, 1930. The collision was between a Nash coach owned and driven by H. E. Griffey, a son of the plaintiff, and a Ford sedan owned by defendant, Andrew Koehler, but being driven at the time by his nephew, A. G. Caffer. Plaintiff was an occupant of her son's automobile.

Originally both Griffey and Caffer were named as parties defendant along with Koehler, but at the beginning of the trial plaintiff dismissed as to both the former. In fact, no service had been obtained upon Caffer.

As the case comes to us on this appeal, the contents of the pleadings are of unimportance; nor, for that matter, is the evidence of any consequence either, save as it bears upon the disputed question of Caffer's agency for defendant Koehler.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,240. Defendant's motion for a new trial was thereupon filed, and, according to the record entry, was sustained by the court upon the fourth ground set up therein, namely, that the verdict was against the weight of the evidence. It is from the order sustaining the motion for a new trial that plaintiff has, in due course, perfected her appeal to this court.

Koehler was not present at the collision, and, if any liability exists on his part, it is purely by virtue of the doctrine of respondeat superior. He concedes, however, that he was the owner of the automobile which was driven by Caffer.

The only evidence in the record with respect to Caffer's relations with Koehler came from the latter's own side of the case. Caffer is Koehler's nephew by marriage, that is, his mother is Mrs. Koehler's sister. He is employed as a traveling salesman, is married, and lives at Fort Worth, Tex., but, when business brings him to the St. Louis offices of the company, he goes to Koehler's home at 751 Dover place.

At the time in question he had been visiting at Koehler's home for a couple of days. The accident occurred on a Sunday. Caffer was leaving that evening for Oklahoma City, but before departing from St. Louis, he desired to go out to Valley Park to inspect a clubhouse on the Meramec river, which his mother, who lived in Maplewood, had had under lease for several years. His plans were to return to St. Louis about the following August 10th at the commencement of his vacation, which he intended to spend at the clubhouse. Seemingly this was a sort of an annual custom, and Koehler, too, had been a visitor at the club on numerous occasions in the past.

With this in view, Caffer came to Koehler about noontime and requested the use of the latter's automobile. He did not tell Koehler where he intended to go, and Koehler did not ask, since he was not concerned with what Caffer's purpose was. Koehler gave his consent, and Caffer got the car out of the garage, and drove out to the club. Having completed his work around the club, he started back to the city, intending to pick up his mother on the way, and bring her in to the Koehlers to see him off that night. It was while on his way back, but before he had reached his mother's home, that the collision with Griffey's automobile occurred.

Koehler testified that the occasion in question was the first time that Caffer had ever used his car.

At the time of the entry of the order sustaining the motion for a new trial, the court filed a memorandum opinion, the material portion of which is as follows:

"Defendant makes the point on the motion for new trial that the verdict should be set aside and a new trial granted because the Court erred in refusing to give the instruction in the nature of a demurrer to the evidence at the close of the whole case, and that the verdict is against the weight of the evidence. It is contended in this regard that under the evidence it was conclusively shown that the driver of the defendant's car was not the agent of the defendant at the time, and was not acting for or on behalf of the defendant. Plaintiff relies upon the presumption of agency arising from the proof of the ownership in question. While it was not directly proved to be the defendant's car in plaintiff's case, it was, nevertheless, referred to as the defendant's car without objection, and it was admitted in the trial of the case that the car belonged to the defendant at the time of the accident. Upon this showing a prima facie case...