Kilroy v. Charles L. Crane Agency Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15646.,15646.
• Citation: 218 S.W. 425,203 Mo. App. 302
• Parties: KILROY v. CHARLES L. CRANE AGENCY CO.
• Court: Missouri Court of Appeals

218 S.W. 425

203 Mo. App. 302

KILROY v. CHARLES L. CRANE AGENCY CO.

No. 15646.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

On Rehearing, February 24, 1920.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Maria Kilroy against the Charles L. Crane Agency Company. Judgment for plaintiff, and defendant appeals. Reversed.

Anderson, Gilbert & Hayden, of St. Louis, for appellant.

Henry A. Baker, of St. Louis, for respondent.

BIGGS, C.

At about 10 o'clock on the night of August 18, 1913, Martin Kilroy, a mounted police officer of the city of St. Louis, while crossing what is known as the Kingshighway viaduct, a public thoroughfare in said city, was run into by an automobile owned by the defendant and operated by its employé Paul J. McNamara. The horse was struck by the motorcar coming upon it from the rear, which caused it to be thrown forward, and Kilroy was on account thereof hurled from his saddle to the pavement and was so severely injured that as a result thereof he died the following day.

The plaintiff is the widow of Martin Kilroy and sues for his alleged wrongful death, specifying that McNamara was negligent in several respects, and on the occasion mentioned was employed by defendant and was operating the automobile owned by the defendant and at the time was acting within the scope of his authority as such employé.

The suit was filed against both McNamara and the Charles L. Crane Agency Company, but service was not obtained on McNamara, and pending the suit he died and no further action was taken against him.

After the verdict of a jury and a judgment in plaintiff's favor in the sum of $4,750, defendant duly perfected its appeal.

Whether at the time of the accident McNamara was upon his master's business is one of the vital questions in the case. The defendant contends that there was no case for the jury, for the reason that the evidence failed to establish that McNamara was acting for the defendant at the time, and that consequently its peremptory instruction to find in its favor should have been given.

In order to determine this question, it will be necessary to sift the evidence on the question of McNamara's authority and to determine whether or not there is substantial evidence in behalf of plaintiff which tends to show that McNamara at the time of the accident was, as a matter of fact, engaged in the performance of a duty for the defendant. It is necessary that there be some evidence of such fact, or at least facts must be established from which a reasonable inference can be drawn that McNamara was acting at the time within the actual or apparent scope of his employment in order to call into action the rule of repondeat superior.

Under the rule laid down in Guthrie v. Holmes, 272 Mo. 215, loc. cit. 236, 237, 198 S. W. 854, Ann. Cas. 1918D, 1123, the proof of the employment of McNamara by the defendant and proof that defendant owned the automobile raised a presumption that McNamara at the time was acting within the scope of his employment and makes a prima facie case, which, however, vanishes upon the appearance of evidence of real facts to the contrary, and, where these facts appear by defendant's evidence, the duty is then cast on plaintiff to produce some evidence of the fact that McNamara was actually engaged at the time of the accident upon the business of the defendant.

The facts disclosed by plaintiff's evidence on this question are these: The defendant is an insurance company, and McNamara was its employé and acted as inspector and also adjuster and solicitor of business for the company. He had no regular office hours and would sometimes work in the evening. Defendant furnished him with a Ford runabout in order to aid him in the performance of his duties. After McNamara left the employ of defendant, his deposition was taken at Chicago by defendant, and plaintiff offered in evidence the cross-examination of McNamara. His testimony as to his duties and movements on the evening of August 18th is as follows:

I was an employé of the defendant company on the 18th of August, 1913. After that I was taken off a salary and put to adjusting losses on a fee basis, and there was not enough in it for me, and in January, 1914, I resigned. After the accident I was arrested and had a criminal trial. Mr. Bennett, vice president of defendant company, Mr. Guthrie, and Mr. Scott, came to see me at the police station. At the station I turned over to them a package of papers, but before they left the station I was released on bond and they were returned to me. Mr. Bennett, I think, came up to see me to see what he could do for me. He knew about the accident, and I was not discharged immediately after that. I did nut, however, operate and run the automobile afterward.

The Crane Agency Company writes fire, tornado, accident, and health insurance. I acted as inspector and also as adjuster and solicited new business in all these different kinds of insurance in which the company is engaged. I had no regular office hours. Sometimes I would work in the day, and sometimes I would work in the evening. Whether day or night, I was looking out for some new customer or some new business. The machine that I was operating on the night of the 18th of August belonged to the Crane Agency Company. Nothing was said about my being limited to any particular time for running the automobile. I don't know whether Mr. Crane, the president, knew that I had never run an automobile before running this one. I don't think he said anything about it. Mr. Crane was president of the company. No other officer or director of the company asked me whether I had ever run an automobile before. The automobile was turned over to me without a thing being said as to whether or not I had the skill or ability or knowledge sufficient to run it. Mr. Crane asked me if I thought that I could learn to run it, and I told him that I thought I could. Besides doing my regular work, it was my business to learn to run the automobile and to run it during my work. It was my business at first to learn to run the machine. The company had discharged the manager's brother, and the automobile was purchased for me to use in making collections for the company and in making adjustments and inspections. Nothing was said about whether or not I should entertain prospects or prospective customers in the automobile. That was a part of my work before I had the automobile. Before the accident I had been running the automobile in the evenings, but I don't think the company knew about it until on the night of August 14th, when I had an accident which they afterwards knew about. After that accident, the company did not forbid me from running the automobile at nights. There was nothing said to me about it at all. Mr. Crane was out of town, and none of the other officers said anything about it.

When I started learning to run this machine, I was instructed by one of the Ford Company's demonstrators. He helped me four or five days. After that I ran it by myself. When I began to run the automobile by myself, I had the state license. I drove the automobile the whole time from whenever the license was delivered, until the 14th day of August. After that I did not run the automobile again until the" evening of August 18th. I had possibly ten days' practice in operating the machine. I was not still learning to run that automobile. I was not practicing up. I do not mean to say that I had become a skilled driver in those few days.

Q. Now, Mr. McNamara, on that evening of August 18, 1913, you had been out attending to some work for the company, had you not? A. No, I had been to the garage, I think. Q. Had you not before that been out at work for the company that evening? A. I had come from the office, that is all. Q. I mean later than that? A. No. Q. Haven't you prior to this made a statement that you were out on business for the company that night? A. The only business I was on was going towards home, and I stopped at a place and inquired about a risk of insurance. That was personal business though.

I also had Bernard O'Neil out that evening. I did not discuss any business of any kind with him. I did not go to see him that evening. I just met him. In the evening of August 14th, I had another accident. I ran into the gate or crossbar of the Frisco Railroad. I was going four or five miles an hour. The gate on the right-hand side of the street when I was going south was broken; the mechanism was broken, and it was down, and the gate on the left-hand side of the street was up, with a red light on it, but no light on the gate on the right-hand side of the street which was down. It being dark there, I could not see very well, and I judged from one gate being up that both of them were up, and I did not see it until we got right on top of it. After that accident on August 14th, I did not have the automobile out until the 18th of August, as it was laid up for repairs. On the evening of the accident, I had with me in the machine Columbus Hudson, but did not have business relations with him and had never solicited from him any insurance.

On redirect examination, Mr. McNamara testified:

After I left the office of the Crane Company the night of this accident, the first man on whom I called was T. E. Burns. I was not trying to get any insurance from him; he just spoke to me about his sister-in-law wanting some insurance, and I got her name. I did not make any arrangement with him or anything. He told me about his sister-in-law and said to go to see her, but I never saw her. It was no part of my duties as an employé of the Crane Agency Company to go to see Mr. Burns about this matter. I don't recall whether I discussed the subject of insurance of any kind with any of the parties whom I saw after I left Mr. Burns that night, but I hardly think so.

"Q. Were you engaged in any work or business after you spoke to Mr. Burns on the night of the 18th of August,...