Kramer v. Britt Printing & Publishing Co.

• Decision Date: 13 June 1924
• Docket Number: No. 18472.,18472.
• Parties: KRAMER v. BRITT PRINTING & PUBLISHING CO.
• Court: Missouri Court of Appeals

263 S.W. 866

KRAMER v. BRITT PRINTING & PUBLISHING CO.

No. 18472.

St. Louis Court of Appeals. Missouri.

June 13, 1924.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Clara Kramer against the Britt Printing & Publishing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kimmel & Britt, of St. Louis, for appellant.

Edward W. Foristel and O. J. Mudd, both of. St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries suffered by the plaintiff as a result of being struck by the defendant's automobile at the intersection of Ninth street and Geyer avenue in the city of St. Louis, on the 13th day of March, 1920. The cause was tried to a jury. There was a verdict for plaintiff in the sum of $9,500, and judgment was given accordingly. From this judgment the defendant appeals.

Plaintiff at the time of her injury was walking across Ninth street from the northwest corner to the northeast corner of the intersection, and was struck by the motor truck just as she arrived at the curb at the northeast corner of the intersection. At the time the plaintiff crossed the street there was a south-bound street car standing at the northwest corner of the intersection, and there was a north-bound street car standing at the southeast corner of the intersection, receiving passengers. The automobile truck, driven by one Joseph M. Phillips, was proceeding northward on the east side of Ninth street. It was driven past the standing street car at an excessive and negligent rate of speed. The horn was not sounded or other warning signal given. As a result the plaintiff was struck and seriously injured. The accident occurred about 7:30 o'clock in the morning. The plaintiff in chief proved that the defendant was the owner of the automobile truck which struck the plaintiff and that the chauffeur was in the general employment of the defendant, and this much was conceded by the defendant. Defendant's place of business was located at Ninth and Walnut streets in the city of St. Louis, and it was the chauffeur's duty to report with the automobile truck at defendant's place of business at 8 o'clock in the morning. On the night preceding the accident the car was garaged by the chauffeur at the garage of the Lrban Auto Supply Company at 5700 Grayois Road, in the neighborhood of the chauffeur's home, and at the time of the accident he was driving the truck from the garage to defendant's place of business. The garage was located several miles from the defendant's place of business. The chauffeur entered the defendant's employment on the 10th day of March, 1920, three days before the accident. It was his duty as such employee to drive the defendant's truck, delivering the defendant's wares to its customers throughout the city.

The defendant produced evidence tending to show that the chauffeur was instructed by defendant to garage the truck at Marshall Bros. Garage, located at Twelfth and Walnut streets, three blocks from the defendant's place of business, and that the truck was taken by the chauffeur to the garage of the Urban Auto Supply Company on Gravois Road, without the knowledge or consent of the defendant. In fact, the evidence on behalf of defendant was such, if believed, as to conclusively show that the chauffeur was not acting within the scope of his employment at the time he ran down and injured the plaintiff.

It is conceded that the evidence on behalf of the plaintiff was such as to afford a sufficient predicate of liability on the part of the defendant, for the plaintiff's injury, if the chauffeur was acting within the scope of his employment at the time of the accident.

The defendant insists that the case should be reversed outright on the ground that the presumption that the chauffeur in charge of defendant's automobile truck was acting within the scope of his employment at the time of the accident in question, which arose from proof of ownership of the truck and of the general employment of the chauffeur by defendant, was completely overcome and destroyed by the testimony produced on the part of defendant, conclusively showing that at the time of the accident the chauffeur in charge of the truck was not acting within the scope of his employment, but was driving the truck for his own pleasure and convenience.

It is broadly ruled in numerous cases in this state that when the plaintiff has made out a prima facie case, although the defendant may introduce evidence which entirely overthrows and disproves the prima facie case of the plaintiff, the trial court cannot say as a matter of law that it is so overthrown and direct a verdict for the defendant. It is so ruled on the ground that the credibility of the witnesses and the weight of the evidence are peculiarly matters for the jury, and that the plaintiff is entitled to have the judgment of the jury on the credibility of the witnesses produced by defendant, and the value of their testimony. And the rule seems to be applied regardless as to whether the prima facie case of the plaintiff rests upon a presumption of fact or upon direct proof. Gannon v. Laclede Gas Light Co., 145 Mo. 502, loc. cit. 515, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; Boone v. Wabash, St. Louis & Pacific Ry. Co., 20 Mo. App. 232, loc. cit. 235; Kenney v. Hannibal & St. Joseph It. Co., 80 Mo. 573, loc. cit. 578; Coates v. Missouri, Kansas & Texas Ry. Co., 61 Mo. 38, loc. cit. 45; Gibson v. Zimmerman, 27 Mo. App. 90, loc. cit. 96; Rinehart v. Kansas City Southern Ry. Co., 204 Mo. 269, loc. cit. 276, 102 S. W. 958; Vaulx v. Campbell, 8 Mo. 224, loc. cit. 227; Meyers v. Union Trust Co., 82 Mo. 237, loc. cit. 241; Hipsley v. Kansas City, St. Joseph & Council Bluffs R. Co., 88 Mo. 348, loc. cit. 353; Wood v. Metropolitan Street Railway Co., 181 Mo. 433, loc. cit. 442, 81 S. W. 152; Brown v. Louisiana & Missouri River R. Co., 256 Mo. 522, loc. cit. 534, 165 S. W. 1066; Brooks v. Roberts, 281 Mo. 551, loc. cit. 559, 220 S. W. 11; Quisenberry v. Stewart (Mo. Sup.) 219 S. W. 625; Mowry v. Norman, 204 Mo. 173, loc. cit. 193, 103 S. W. 15; Lafferty v. Kansas City Casualty Co., 287 Mo. 555, loc. cit. 563, 229 S. W. 750; St. Louis Union Trust Co. v. Hill, 283 Mo. 278, loc. cit. 281, 223 S. W. 434; Sharp v. Supreme Council of Royal Arcanum (Mo. App.) 251 S. W. 159.

On the other hand, it is held in numerous cases in this state and elsewhere that, where the plaintiff's prima facie case is not based upon direct proof, but upon a presumption of fact, then positive and direct evidence of the facts to the contrary, adduced by the defendant, completely destroys the presumption, and that unless the plaintiff offers countervailing testimony the defendant is entitled to a verdict, and the court must so declare as a matter of law. This rule has been adhered to by the courts with striking unanimity in that class of cases in which the plaintiff, seeking to hold defendant liable for injuries resulting from the negligent act of his servant in the operation of an automobile or other vehicle, relied upon the presumption of fact arising from proof of the ownership of the automobile or other vehicle, and of the general employment of the driver, by the defendant, to establish that the driver was acting within the scope of his employment at the time of the injuries complained of. Hurck v. Missouri Pacific Ry. Co., 252 Mo. 39, loc. cit. 48, 158 S. W. 581; Davis v. Wabash, St. Louis & Pacific Ry. Co., 89 Mo. 340, loc. cit. 350, 1 S. W. 327; Glassman v. Harry, 182 Mo. App. 304, loc. cit. 308, 170 S. W. 403; Vallery v. Hesse Building Material Co. (Mo. App.) 211 S. W. 95; Koprivica v. Standard Accident Ins. Co. (Mo. App.) 218 S. W. 689; Calhoon v. Mining Co., 202 Mo. App. 564, loc. cit. 569, 209 S. W. 318; Sowders v. St. Louis & San Francisco R. Co., 127 Mo. App. 119, loc. cit. 124, 104 S. W. 1122; Maupin v. Solomon, 41 Cal. App. 323, 183 Pac. 198.; Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N. W. 536; Rose v. Balfe, 223 N. Y. 481, loc. cit. 486, 119 N. E. 842, Ann. Cas. 1918D, 238; Martinelli v. Bond, 42 Cal. App. 209, 183 Pac. 461; Babbitt v. Seattle School District, 100 Wash. 392, loc. cit. 394, 170 Pac. 1020; Ursch v. Beier, 210 Mo. App. 129, 214 S. W. 439; Evans v. Dyke Automobile Co., 121 Mo. App. 266, 101 S. W. 1132; Kilroy v. Crane Agency Co., 203 Mo. App. 302, loc. cit. 310, 218 S. W. 425, loc. cit. 426; White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, loc. cit. 25, 102 N. E. 302, 40 R. A. (N. S.) 1001, Ann. Cas. 1014C, 1082; Ferris v. Sterling, 214 N. Y. 249, loc. cit. 253, 108 N. E. 406; Moon v. Matthews, 227 Pa. 488, 78 Att. 219, 20 L. R. A. (N. S.) 856, 136 Am. St. Rep. 002; Lots v. Hanlon, 217 Pa. 330, loc. cit. 342, 38 Atl. 525, 10 H. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; KaZee v. Kansas City Life Ins. Co. (Mo. App.) 217 S. W. 339. loc. cit. 340; Ex parte Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 130, loc. cit. 149, 229 S. W. 1059; Downs v. Horton, 287 Mo. 414, loc. cit. 434, 230 S. W. 103; Latham v. Hoseh, 207 Mo. App. 381, loc. cit.:356, 233 S. W. 84; Rockwell v. Standard Stamping Co., 210 Mo. App. 168, loc. cit. 177, 241 S. W. 979; Crain v. McKinley (Mo. App.) 222 S. W. 495, loc. cit. 406; Clay & Funkhouser Banking Co. v. Dobyns (Mo. App.) 255 S. W. 946, loc. cit. 347; Karguth v. Donk Bros. Coal & Coke Co. (Mo. Sup.) 253 S. W. 367, loc. cit. 371.

Defendant relies upon Guthrie v. Holmes, 272 Mo. 215, loc. cit. 233, 198 S. W. 854, Ann. Cas. 1918D, 1123, as the leading case in this state announcing this rule. The plaintiff contends, however, that in that case the facts relied upon to supplant or overthrow the pre: sumption arising from proof of ownership of the automobile which caused the injury complained of, and of the general employment of the chauffeur, by the defendant, came in as part of the plaintiff's case in chief, and that the rule there announced has no application in this case,...