Hays v. Hogan
| Decision Date | 28 April 1914 |
| Parties | BERTIE A. HAYS, Appellant, v. R. S. HOGAN and J. E. HOGAN, Respondents |
| Court | Missouri Court of Appeals |
ON MOTION FOR REHEARING AND MOTION TO CERTIFY TO THE SUPREME COURT.
--I think the motions for rehearing and to certify the cause to the Supreme Court should be overruled because I believe the result reached in the opinion of the court already on file is the correct solution of the questions presented to us, not only for the reasons therein set forth, but the reasons herein given as well.
We do not disagree as to the proposition of law that one cannot be held as master and liability fastened upon him as such for the acts of a third person unless such third person can be said to be his agent or servant. If J. E. Hogan was not the servant of R. S. Hogan, acting within the real or apparent scope of his authority, of course R. S. Hogan could not be held; but as I view the evidence, under the authorities there was sufficient evidence to justify the jury in fastening this relationship upon these parties.
It is admitted that the automobile that caused the injury belonged to the defendant, R. S. Hogan; and the evidence was such as to amply justify the jury in finding that the automobile at the time and place in question was being negligently operated by defendant, J. E. Hogan, to the damage of the plaintiff. We have then the case before us upon the following facts which are either admitted or a prima-facie showing of the same made: R. S. Hogan was the owner of the automobile. It was being operated along a public road, and was therefore being used for the purpose for which an automobile was intended and every person in the car at the time of the injury was an employee of the institution of which R. S. Hogan was presiding officer. It was being negligently operated, and such negligence was the proximate cause of the injury in question. This, upon reason and authority, makes a prima-facie case of liability, against the owner, R. S. Hogan. It matters not, under the facts in this case, whether the person operating the automobile was the adult or minor son of R. S. Hogan, or an entire stranger to him so long as the jury was warranted in finding that he was not a trespasser and had sufficient evidence before it upon which to support the finding that he was the servant and agent of R. S. Hogan.
The principle which I think conclusively determines this case is well stated in Shearman & Redfield on the Law of Negligence (6 Ed.), Vol. 1, Sec. 158, as follows. With ownership of personal property goes possession and control, and the natural inference arises that wherever such property is found it is in the possession and under the direction and control of the owner either actually or constructively. The same doctrine is announced in Norris v. Kohler, 41 N.Y. 42; Seaman v. Koehler (N. Y.), 25 N.E. 353; Doherty v. Lord, 28 N.Y.S. 720; Thiry v. Taylor B. & M. Co., 56 N.Y.S. 85; Perlstein v. American Exp. Co. (Mass.), 59 N.E. 194.
This question was ably and thoroughly discussed in the case of Fleishman v. Polar Wave I. & F. Co., 148 Mo.App. 117, 127 S.W. 660, where Judge GOODE holds that perhaps proof of the name on the wagon alone would carry the case to the jury on the issue of defendant's liability, citing and discussing many authorities.
In our case, the facts are sufficient to justify the jury in finding that J. E. Hogan was operating the automobile as the servant of R. S. Hogan. It is true, the defendants' evidence tends to show a different conclusion, but the jury did not believe that the evidence offered by the defendants to the effect that the relation of master and servant did not exist was sufficient to overcome the plaintiff's prima-facie case. However, plaintiff has much more to rely upon than the bare prima-facie case made showing the ownership of the automobile to be in R. S. Hogan. The latter admitted that on a number of occasions he had given his son, J. E. Hogan, permission to run the car, and that he could not remember an occasion when a request was made and refused. That some one had to operate the car besides the owner is apparent because the owner admitted that he had never learned to run it; and he swore that he and his wife were the only ones who could give permission to the defendant, J. E. Hogan, to run the car. The automobile was left by R. S. Hogan's wife, on the day of the accident, in front of the place where the son, J. E. Hogan, worked, and it was at this place that he commenced to operate it.
This question has recently been passed on by our Supreme Court in the case of O'Malley v. Heman Construction Co. (not yet officially reported), 164 S.W. 565, where, in the course of the opinion, this language appears:
Unless the law of this State is to be completely overturned, the plaintiff in this case must be held to have introduced sufficient evidence to make a prima facie case against both defendants; and the jury disbelieved the evidence offered by the defendants and found in favor of the plaintiff. If there was sufficient evidence to take the case to the jury, there is sufficient evidence to sustain the verdict. It is true, the case was argued here along the lines discussed in the opinion already on file; but the issue presented by the plaintiff's principal instruction requiring the jury to find that the car was being operated by a servant or agent of R. S. Hogan was broad enough to cover the theory which I have advanced in this opinion, and there was sufficient evidence to sustain a finding upon this theory, and it therefore cannot be said that I am seeking to sustain the verdict on a theory not submitted to the jury simply because I believe the judgment was for the right party.
Speaking for myself, I differ with many of the courts which hold that an automobile is not a dangerous instrumentality. "A dangerous instrumentality" is ordinarily attached as a name to those agencies which are propelled by some powerful force, or in which some destructive force is stored up, which force is to be controlled by human hands, and which, when not kept under proper control, is calculated to deal death and destruction to those who come within the danger zone. It requires but a glance at the daily newspapers to convince one that death and destruction are constantly resulting from the operation of automobiles. And, recognizing this, I think our General Assembly has classified the automobile as a dangerous instrumentality by statutory enactment. [Laws 1911, p. 330 (9).] This was done, perhaps, because the Legislature thought it necessary to protect others of the traveling public against the use of a vehicle containing within itself such a power that by the mere shift of a few notches of the throttle it can be made to run from six to sixty miles an hour along the streets and highways which were laid out and designed to safely and conveniently take care of vehicles drawn by the ass and the ox. Wherever the Legislature or the courts have said that the care required to be used is greater than what is known as ordinary care and amounts to the highest degree of care, the reason given is that the instrumentality being used is a dangerous and subtle agency. Witness the decisions of the courts of this State in cases involving electricity dynamite, street cars, passenger trains, etc. The General Assembly has by the statute referred to placed the highest degree of care to be exercised upon one controlling and operating an automobile and I believe that by so doing the classification has been stamped upon these vehicles which the courts must adhere to. I believe that the decisions of the courts of other States that an automobile is not a dangerous instrumentality were perhaps influenced by the fact that those States do not have a statute similar to ours. And so I think that an additional reason why the result reached in the opinion already on file is correct is that this automobile was a dangerous instrumentality, and was left by one having the control of it at a place where another, who had repeatedly been given the right to operate it, did find it and use it to the damage of the plaintiff. And the burden placed upon the owner of this instrumentality of showing that the person who did operate it on this occasion was without authority was not in...
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