Keim v. Blackburn

Decision Date26 February 1926
Docket NumberNo. 25078.,25078.
Citation280 S.W. 1046
PartiesKEIM v. BLACKBURN et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Mary Keim against G. W. Blackburn and others. Judgment for plaintiff against defendant Charles F. Roach, and from an order overruling a motion to set aside a nonsuit as against defendants George W. and Mary Blackburn, plaintiff appeals. Affirmed.

Abbott, Fauntleroy, Cullen & Edwards and John C. Vogel, all of St. Louis, for appellant.

A. E. L. Gardner, of Clayton, for respondents.

WALKER, P. J.

This is a suit for damages for personal injuries brought by the plaintiff against George W. and Mary Blackburn, father and daughter, and Charles F. Roach. At the close of plaintiff's evidence, the court directed the jury that a recovery under the evidence could not be had against George W. and Mary Blackburn, and that the verdict must be for them. The plaintiff thereupon took a nonsuit as against these defendants with leave to move to set the same aside and filed a motion to that effect which was by the court overruled. Thereupon the plaintiff perfected her appeal to this court. The trial proceeded as to Charles F. Roach, resulting in a finding and judgment against him in favor of the plaintiff.

Plaintiff's injuries arose from having been struck by an automobile owned by George W. Blackburn, which, as plaintiff alleges, was, at the time, being driven by Charles F. Roach and Mary Blackburn. So far as can be determined from the testimony, Charles F. Roach was driving the automobile at the time of the accident. He was not called upon to testify. A police officer, named Coff, testified that he saw the automobile immediately after the accident and that he put Roach, who was driving it, under arrest; that Roach said he was at the time driving at the rate of 10 or 12 miles an hour. A newsboy who saw the accident was unable to state by whom the automobile was driven. George W. Blackburn, who owned the car, was away from home at the time of the accident and knew nothing of the use to which the car was put. The evidence as to Mary Blackburn's connection with the accident consists in what, among other things, is termed an admission by silence. Soon after the plaintiff was taken to the hospital, Mary Blackburn went there, evidently to make inquiry concerning the plaintiff's condition, and while in the presence of the latter, a doctor named Kolkins, addressing the plaintiff, said, referring to Mary Blackburn: "This is the lady that was operating the machine when you were injured. Do you remember her?" to which the plaintiff replied: "I don't remember nothing," during which conversation Mary Blackburn remained silent.

That Mary Blackburn was in the car at the time of the accident is not in controversy; but it is contended her relationship to the owner of the car, the fact that she had been permitted and was accustomed to operate it, and that she sat silently by and heard it stated that she was operating the car at the time of the accident, constituted sufficient facts to authorize the submission of her liability to the jury. The foregoing facts in the light of the evidence may be considered in their order.

I. As to George W. Blackburn's liability, there is no evidence that he had any knowledge of the use of the car, or that either his daughter or Roach were at the time of the accident his agents or servants. Under this state of the facts, the doctrine of respondeat superior does not apply. The reports are full of cases holding that even where a servant, with his master's consent, takes the latter's car and uses it for his own purpose, and thereby negligently injures another, the master is not liable. Bolman v. Bullene (Mo. Sup.) 200 S. W. 1068Guthrie v. Holmes, 198 S. W. 854, 272 Mo. 215, Ann. Cas. 1918D, 1123; Garretzen v. Duenckel, 50 Mo. loc. cit. 107, 11 Am. Rep. 405; Cunningham v. Castle, 111 N. Y. S. 1057, 127 App. Div. 580; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336; Maher v. Benedict, 108 N. Y. S. 228, 123 App. Div. 579, Riley v. Roach, 134 N. W. 14, 168 Mich. 294, 37 L. R. A. (N. S.) 834, and notes.

II. The fact that Mary Blackburn was the daughter of George W. Blackburn, and had theretofore operated the car for her father and...

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52 cases
  • Smith v. Fire Insurance Co.
    • United States
    • Missouri Supreme Court
    • 18 mai 1928
    ... ... It has been said implications and inferences alone will not sustain a finding (Keim v. Blackburn (Mo.), 280 S.W. 1046, 1048), but when accompanied by relevant testimony of a probative character the contrary is true. And when the ... ...
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    ... ... Clough v ... Allen, 1 P.2d 545; Mauchle v. Panama Pacific ... International Exhibition Co., 174 P. 400, 37 Cal.App ... 715; Keim v. Blackburn, 280 S.W. 1046; Guthrie v ... Holmes, 272 Mo. 215, 198 S.W. 854 ...           Jeffries, ... Simpson & Plummer for ... ...
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