O'Hare v. Justin T. Flint Laundry & Dry Cleaning Co.

• Decision Date: 07 April 1943
• Docket Number: No. 26195.,26195.
• Citation: 170 S.W.2d 95
• Court: Missouri Court of Appeals
• Parties: O'HARE v. JUSTIN T. FLINT LAUNDRY & DRY CLEANING CO.

170 S.W.2d 95

O'HARE v. JUSTIN T. FLINT LAUNDRY & DRY CLEANING CO.

No. 26195.

St. Louis Court of Appeals. Missouri.

April 7, 1943.

Rehearing Denied April 23, 1943.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Robert O'Hare against Justin T. Flint Laundry & Dry Cleaning Company for injuries sustained by plaintiff in an automobile collision. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Chasnoff, Willson & Cunningham, John J. Nangle, George Gantner, Harry S. Rooks, and J. H. Cunningham, Jr., all of St. Louis, for appellant.

Paul H. Koenig, Walter W. Schiek, and W. E. Dietz, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is an action to recover damages sustained by plaintiff when the automobile he was driving was struck by a truck belonging to defendant and being operated by an employee of defendant.

The trial, with a jury, resulted in a verdict for plaintiff for $5,000, and judgment being given against defendant it appeals.

The accident occurred about 2:15 p.m., Saturday, July 22, 1939, at the intersection of Evans Avenue, an east and west street, and Cora Avenue, a north and south street, in the City of St. Louis. Both the truck, operated by Harry W. Hilton, and the automobile, operated by O'Hare, were proceeding west on Evans Avenue. After they had crossed Taylor Avenue, two city blocks to the east, and before reaching the intersection at Cora Avenue, O'Hare testified that he sounded the horn on his automobile three different times, desiring to pass the truck on the left side, but that the truck pulled over to the left so that the left wheels of the truck were south of a white line which marked the center of Evans Avenue, preventing him from passing on the left side, and that he proceeded forward on the right side of the truck until his automobile reached a point from seven to ten feet from the intersection corner, at which time his automobile was at a point about even with the middle of the truck, when the truck suddenly and abruptly turned or swerved to the right without warning, and the rear part of the truck struck the front part of the automobile, and drove or shoved the front part of the automobile up on to the curb which was about a foot higher than the gutter of the street; that the truck continued around the corner on to Cora Avenue and came to a stop about 50 feet from the corner. O'Hare further testified that the traveled portion of Evans Avenue is about 40 feet wide, with a white line along the center of the street, which would leave a width of 20 feet for westbound traffic, and that his automobile at the time of the collision was 6 to 7 feet from the north curb of Evans Avenue, and took up a space of 5 feet and 2 inches in width; that at the time of the collision he was not trying to pass the truck; that as the truck suddenly and abruptly turned or swerved towards the right, he swerved his automobile in an effort to avoid the impact. O'Hare further testified that after the truck stopped on Cora Avenue the driver Hilton came back and said that he (Hilton) was absolutely in the wrong; that Hilton volunteered to get him another tire to take the place of one that was "blown out" in the collision.

William E. Beuer testified that he was operating a used car lot on the northeast corner of Cora and Evans Avenues on July 22, 1939; that while working at this place he heard tires squeak and looked up and saw the truck turn and hit the side of the automobile, and push it up on the curbstone; that it "kind of clipped a fender and just pushed it back"; that the automobile went up on top of the sidewalk, and the tire was flat. Beuer further said that the truck went on around the corner and stopped on Cora Avenue from 35 to 50 feet from the corner; that the driver came back and O'Hare asked him why he had cut him off and the driver started cussing, and then he said, "I know it was my fault, but that is all I could do".

Clarence Leslie McGee, who was working for William E. Beuer, testified that he heard some tires squeal and looked up and saw the laundry truck, which was in the center of the street, come around and cut the automobile off and caught the front fender; that the truck stopped in 35 or 40 feet; that it knocked the automobile up on the curb and "blowed out" a tire; that he told the driver it was his fault.

William Henry Spath testified that he was standing at the northeast corner of Evans and Cora Avenues; that he saw a car coming down the street and a laundry truck was on the left-hand side, and as they came close to the intersection "the laundry truck was doing about twenty-five, I guess; it made a sharp, abrupt right turn, hitting the car, knocking it up on the curb. The front wheel was out of line and the left front fender was torn."

For the defendant Harry W. Hilton testified that he was an employee of the Flint Laundry as a driver of a truck; that on the occasion in question he was going west on Evans Avenue and when he got to Cora Avenue he put out his hand, and made a turn to go on Cora Avenue, and got at least 25 or 30 feet up the street on Cora Avenue when he heard a blow out, and thought it was a tire on the truck he was driving; that he stopped and then he looked down the street towards Evans Avenue, and saw a man walking up and down, nervous, wringing his hands; that he walked down there and O'Hare said to him, "You cut me off"; that he said, "I cut you off; how could I cut you off? You tried to pass me on the right side." Hilton further said that O'Hare told him his mother was a customer of Flint Laundry, and for that reason he took him to the office to get another tire. Hilton further said that the truck never struck plaintiff's car at all, and that he did not see plaintiff's car until after the accident; that from his position in the truck he could not have seen a car on the right as he made the right turn.

Witness Hilton further testified that at the time of the occurrence, he had completed his deliveries for the day and was going home; that it was his custom to take the truck home and keep it there; that he used the truck in his daily work in making deliveries; that on this occasion he left the laundry and was going home from the laundry; that it had been his custom for a long time to take the truck home with him and put it in his garage. That on Mondays he would start out on his route from his home before going to the laundry; that the accident happened on Saturday, and the following Monday he would go right from his home when making his pick-ups, and that he takes the truck home so that he doesn't have to go to the laundry but can start out right from his home, that he did that regularly; in that way it enables him to make his pick-ups and get his work done and not have to go from his home to the laundry and back; and that he can get to the place earlier and get the washing quicker and get the work sent quicker.

Except for impeaching witnesses called by defendant, and the medical testimony, and evidence as to the nature and extent of plaintiff's injuries, to which we will later refer, the foregoing is a summary of all the evidence in the case.

Defendant does not claim that it was not the owner of the truck involved in the accident in question, nor that the driver Hilton was not regularly in its employment, but it does contend that at the time and place of the accident Hilton had completed his day's work and was on his way home, and not being engaged in the service of the master at the time and place of the accident the rule of respondeat superior does not apply, and that the court erred in denying its demurrer to the evidence. The rule has often been stated to the effect that where defendant's ownership of the truck involved is proven or not disputed, and it is further established that at the time and place of the accident such truck was being operated by a regular employee of the defendant, the presumption arises that the employee was operating the truck in the service of the master. This is a presumption, and is rebuttable. Byrnes v. Poplar Bluff Printing Co., Mo.Sup., 74 S.W.2d 20. In this case the presumption is in no manner rebutted by the subsequent facts developed. The driver had not completed his day's work until he had taken the truck to the place where it was regularly and customarily kept, which was at his home. The truck not only served as a means of transportation for the employee, but it was also kept at the home of the employee in furtherance of the employer's business. Cases cited and relied upon by defendant are not applicable to the facts in this case. In the case of State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802, the facts were that the employee at the time of the accident was using the employer's automobile for the purpose of attending a party on a purely social mission. The case of Waters v. Hays, Mo.App., 118 S.W.2d 39, is the same case as State ex rel. Steinbruegge v. Hostetter, after the case reached this court, our first opinion having been quashed on certiorari. In the case of Halsey v. Metz, Mo.App., 93 S.W.2d 41, the truck involved in the accident was being used by the employee, who was a son of the defendant, to drive to his home about five miles out in the country, and after the son had completed his day's work. The truck was not ordinarily kept at the employee's home. It was not a part of the son's duty to take the truck to his home in furtherance of the employer's business. In the case of Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897, the employee was using his own truck which had upon it a gasoline tank belonging to the employer and which truck and tank was ordinarily used by the employee in performing services for the employer, but on the occasion of the accident, which was on a Sunday, the employee was using the truck as a means of transportation...