Kilroy v. Charles L. Crane Agency Company

• Citation: 218 S.W. 425,203 Mo.App. 302
• Parties: MARIA KILROY, Respondent, v. CHARLES L. CRANE AGENCY COMPANY, a Corporation, Appellant
• Decision Date: 06 January 1920
• Court: Missouri Court of Appeals

218 S.W. 425

203 Mo.App. 302

MARIA KILROY, Respondent, v. CHARLES L. CRANE AGENCY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

January 6, 1920

Rehearing Denied February 24, 1920, Reported at: 203 Mo.App 302 at 322.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas L. Anderson, Judge.

REVERSED.

Judgment reversed.

Anderson Gilbert & Hayden and M. U. Hayden for appellant.

(1) The owner of an automobile who is not present at the time of an accident is not liable for damages caused by its alleged negligent operation by his employee unless, at the time, the employee is engaged in the performance of some duty pertaining to his employment and is acting within the scope of his employment. Slater v. Thresher Co., 107 N.W. 133, 5 L. R. A. (N. S.) 598; Lotz v. Hanlon, 66 A. 525, 10 L. R. A. (N. S.) 202; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93; Steffen v. McNaughton, 124 N.W. 1016, 26 L. R. A. (N. S.) 382; Hartly v. Miller, 165 Mich. 115, 33 L. R. A. (N. S.) 81; Tyler v. Stephan, 174 S.W. 790; Reilly v. Connable, 214 N.Y. 586, 108 N.E. 853, L. R. A. 1916A, 954; Symington v. Sipes, 88 A. 134, 47 L. R. A. (N. S.) 663; Healy v. Cockrill, 202 S.W. 229, L. R. A. 1918D, 155; Clark v. Buckmobile Co., 94 N.Y.S. 771; Reynolds v. Buck, 127 Iowa 60, 103 N.W. 946; Whimster v. Holmes, 177 Mo.App. 130, 164 S.W. 236; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Glassman v. Harry, 182 Mo.App. 304, 170 S.W. 403; Hayes v. Hogan, 273 Mo. 1, 200 S.W. 286; Whiteaker v. Railroad Company, 252 Mo. 438, 160 S.W. 1009; Bolman v. Bullene, 200 S.W. 1068. (2) In order to render the owner of an automobile liable for its negligent operation by his servant, it must appear that the latter was serving his employer at the time of the accident and in respect to the very transaction out of which it arose. Hartly v. Miller 165 Mich. 115, 33 L. R. A. (N. S.) 81; Symington v. Sipes, 88 A. 134, 47 L. R. A. (N. S.) 663; Healy v. Cockrill, 202, S. W., 229, L. R. A. 1918D, 155. (3) If a driver takes his employer's automobile without the knowledge or consent of the employer, and while using it for a purpose purely personal to himself, causes an injury to a third party, the employer is not liable. Slater v. Thresher Co., 107 N.W. 133, 5 L. R. A. (N. S.) 598; Lotz v. Hanlon, 66 A. 525, 10 L. R. A. (N. S.) 202; Steffen v. McNaughton, 124 N.W. 1016, 26 L. R. A. (N. S.) 382; Healy v. Cockrill, 202 S.W. 229, L. R. A. 1918D, 115; Clark v. Buckmobile Co., 94 N.Y.S. 771; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Glassman v. Harry, 182 Mo.App. 304. (4) If an employee while using the automobile of his employer temporarily abandons the service, or at the time of an accident is acting for himself pro tempore and is using the automobile for his own individual purposes or pleasure, the employer is not liable for any damage caused at that time. Lotz v. Hanlon, 66 A. 525, 10 L. R. A. (N. S.) 202; Tyler v. Stephan, 174 S.W. 790; Resilly v. Connable, 214 N.Y. 586, L. R. A. 1916A, 954; Symington v. Sipes, 88 A. 134, 47 L. R. A. (N. S.) 663; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Glassman v. Harry, 182 Mo.App. 304, 170 S.W. 403; Slater v. Thresher Co., 5 L. R. A. (N. S.) 598. (5) While proof of the ownership of an automobile and that the person driving it, at a certain time, is an employee of the owner are sufficient prima facie to establish that the driver was acting within the scope of his employment at the time, that presumption disappears in the face of substantial or undisputed testimony that such driver was not acting within the scope of his employment at such time. Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78; Cronecker v. Hall, 105 A. 213 (N. J.); Rose v. Balfe, 223 N.Y. 481; Lotz v. Hanlon, 5 L. R. A. (N. S.) 202; Guthrie v. Holmes, 272 Mo. 215; Glassman v. Harry, 182 Mo.App. 304. (6) An automobile is not an instrumentality so inherently dangerous as to render its owner liable in damages if he permits it to be used by his employee, even though the latter may be a reckless driver. Danforth v. Fisher, 75 N.H. 111, 21 L. R. A. (N. S.) 93; Jones v. Hoge, 92 P. 433, 14 L. R. A. (N. S.) 216; Cunningham v. Castle, 111 N.Y.S. 1057; Hall v. Compton, 130 Mo.App. 681; Daily v. Maxwell, 152 Mo.App. 415, 427-429; Lewis v. Amorous, 59 S.E. 338; Huddy on Automobile (2 Ed.), p. 33; 28 Cyc., p. 25. (7) The fact that McNamara may have taken appellant's automobile out after business hours on a prior occasion in violation of his instructions is not sufficient to charge appellant with the duty of assuming that he would again violate those orders and to exercise extratordinary precautions against his taking the machine out after night, and evidence that, on another occasion, McNamara had the automobile out after night was inadmissible to establish any negligence on the part of appellant. Labatt on Master & Servant, section 2222, pp. 6681-6690; Danforth v. Fisher, 75 N.H. 111, 21 L. R. A. (N. S.) 93; Clark v. Buckmobile Co., 94 N.Y.S. 771. (8) Evidence of statements or acts of the driver of an automobile, made or performed after an accident, is inadmissible for the reason that they do not form a part of the res gestae. It was prejudicial to the rights of appellant to admit evidence of anything done or said by McNamara at any time after his arrest following this accident. Stinger v. Metz Co., 171 P. 1032; Whitney v. Siouz City, 154 N.W. 497 Gouin v. Ryder, 94 A. 670; Railroad Co. v. O'Brier 119 U.S. 99; Adams v. Railroad Co., 74 Mo. 556; Pannell v. Allen, 160 Mo.App. 714, 142 S.W. 482; King v. Insurance Co., 105 Mo.App. 163, 172-3; Carson v. Stockyards Co., 167 Mo.App. 443, 151 S.W. 752. (9) It is error to give to the jury an instruction which is broader than the averments of the petition or than the evidence or which assumes that the defendant is negligent in any respect. Hall v. Coal & Coke Co., 260 Mo. 531, 168 S.W. 927; Greenstein v. Foundry Co., 178 S.W. 1179; Mulloy v. Painting Co., 214 S.W. 405; McDonnell v. Taxicab Co., 168 Mo.App. 351, 151 S.W. 767.,

Henry A. Baker for respondent.

(1) The employer is liable for the negligent acts of his employee performed in the course of his employment. Vanneman v. Walker Laundry Co., 166 Mo.App. 685; Fellhauer v. Railroad Co., 191 Mo.App. 137; Slothower v. Clark, 191 Mo.App. 105; Hellrigel v. Dunham & Harvey, Etc., 192 Mo.App. 43; Perkins v. Railroad Co., 55 Mo. 214. (2) McNamara, the employee of appellant company, was at the time of the accident, in evidence, acting within the scope of his authority. This is determined by an examination of the evidence, and no authorities are needed to establish that statement. (3) Both previous authorizations of the acts of an employee and subsequent ratification thereof may be shrown by the subsequent conduct of the parties. Oglesby v. Smith, 38 Mo.App. 67; Perkins v. Railroad Co., 55 Mo. 214; Title Guaranty & Surety Co. v. Drenon, 181 Mo.App. 198; Beagles v. Robertson, 135 Mo.App. 306; Plummer v. Knight, 156 Mo.App. 321. (4) An automobile in the hands of one who does not know how to run it, in the hands of one who is not a skillful driver, is a dangerous machine. No authorities are necessary to support this proposition. (5) "Persons using dangerous agencies are required to use the utmost care to prevent injuries and to adopt every known safeguard, and one who places in the hands of another or authorizes the use by another person of a dangerous instrument or article under such circumstances that he has reason to know it is likely to produce injury is liable for natural consequences." Cyc. of Law & Procedure, 460; Palm v. Ivorson, 117 Ill.App. 535; Eyermann, 7 Mo.App. 592. (6) The instructions for respondent were not too borad, as there was a good foundation in the evidence for every fact which was submitted to the jury to find. An examination of the evidence establishes this point. (7) Questions of negligence and of contributory negligence are primarily for the jury and only become questions of law where there is no dispute in the evidence, and but one inference can reasonably be drawn from them; but where the facts are disputed or the credibility of witnesses is in question or a material fact is left in doubt or there are inferences to be drawn from the facts proven, thme questions of negligence and of contributory negligence are for the jury. Murrel v. Smith, 152 Mo.App. 95; Vaughn v. Wm. J. Lemp Brewing Co., 152 Mo.App. 48; Oborn v. Nelson, 141 Mo.App. 428; Munro v. Railroad Co., 155 Mo.App. 710; Shamp v. Lambert, 142 Mo.App. 567; Turk v. Springfield Traction Co., 140 Mo.App. 335; Larrance v. Mo. Pac. Railroad Co., 141 Mo.App. 338. (8) Any person owning, operating or controlling an automobile running on, upon, along or cross public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a very careful person would use under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel, etc. Laws of Missouri, 1911, p. 330, sec. 9.

BIGGS, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

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 employee Paul J. McNamara. The horse was struck by the motor car 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...