O'Malley v. Heman Const. Co.

• Citation: 164 S.W. 565,255 Mo. 386
• Parties: O'MALLEY v. HEMAN CONST. CO.
• Decision Date: 03 March 1914
• Court: United States State Supreme Court of Missouri

164 S.W. 565

255 Mo. 386

O'MALLEY v. HEMAN CONST. CO.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. MASTER AND SERVANT (§ 332)—INJURIES TO THIRD PERSONS—ACTION—SUFFICIENCY OF EVIDENCE.

In an action for injuries by being struck by a wagon negligently driven by defendant's servants, evidence held to make it a jury question whether defendant owned the wagon which struck plaintiff.

2. PROPERTY (§ 9)—PRESUMPTIONS—OWNERSHIP.

Possession justifies an inference of ownership.

3. PROPERTY (§ 9)—PRESUMPTIONS—OWNERSHIP.

The ownership of property, once established, is presumed to continue in the same person until a change is affirmatively shown.

4. MASTER AND SERVANT (§ 330)—INJURIES TO THIRD PERSONS—EVIDENCE—RELATIONSHIP.

Where the evidence, in an action for injuries by being struck by defendant's wagon, warranted a finding that defendant owned the wagon, plaintiff need not affirmatively show that the driver was defendant's servant.

5. APPEAL AND ERROR (§ 907)—PRESUMPTIONS.

The presumption that the trial court ruled correctly, as in ruling that actionable negligence existed, is conclusive, where all of the evidence on the question is not in the record.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Anna O'Malley, an infant, by John O'Malley, next friend, against the Heman Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rodgers & Koerner, of St. Louis, for appellant. Charles P. Comer and John A. Dowdall, both of St. Louis, and Jesse L. England, of Windsor, for respondent.

BLAIR, C.

This is an appeal from an order of the circuit court of the city of St. Louis setting aside involuntary nonsuit. The action was for damages for injuries to plaintiff (eight years of age when injured) occasioned by being struck by a wagon plaintiff claimed defendant's servant negligently drove upon her.

Defendant assigns for error the ruling setting aside the nonsuit, and contends the evidence does not tend to show (1) that the driver was in defendant's employ; (2) or, even if so, that he was acting within the scope of his employment; (3) or that plaintiff's injuries were due to the driver's negligence, or that he could have avoided the injury.

The driver testified he got the wagon he was driving when plaintiff was injured from "Heman's" at "Heman's barn," at the corner of Ashland avenue and Market street, but did not know whether it was the property of the Heman Construction Company; that Mr. John Heman employed him, he thought, but he did not know whether John Heman was connected with the Heman Construction Company. Another witness testified positively that he was acquainted with the driver, and saw him and the wagon he was driving which struck plaintiff, and he personally knew that the team and wagon belonged to the Heman Construction Company. This witness was cross-examined on this phase of the case as follows: "Q. Now, how do you know what wagon belonged to the Heman Construction Company, and what wagon does not belong to that company? A. Well, I worked right there next to his quarry for about a year, and I used to see the teams go in that stable at night. Q. You worked next to whose quarry? A. Heman's. Q. Who did you work for? A. Mike Hanneck. Q. When? A. It has been about a year and a half ago. Q. You mean in 1908? A. Yes, sir. Q. What time did you quit work there? A. I don't know just when it was I quit. Q. Did you quit there in 1907; wasn't it? A. 1907; I don't know. Q. You were not working there in 1909, were you? A. I don't know that. Q. You were not working there at the time when your sister [plaintiff] got hurt, were you? A. No, sir. Q. It was before that some time, wasn't it? A. I don't know just exactly when it was. Q. Well, it was before that when you worked there, wasn't it? A. It was before that; yes. Q. Is that the only way you know; is that the only way you know of your own knowledge about the teams of the Heman Construction Company? A. Seeing them there at the stable. Q. That is all you know about those teams, and who owned them, isn't it? A. Yes, sir."

In the same connection there was a friendly colloquy between the court and counsel relative to the admissibility of certain testimony of Officer Cousins, who arrested the driver of the wagon. This witness testified the driver told him the wagon was the property of the Heman Construction Company, the defendant here. On objection the court ruled the driver's declaration was not competent to prove his agency for defendant, and added: "I am simply permitting him [the witness] to say that he [the driver] was driving a wagon, and state that he was driving a wagon of defendant. That is what I understood him to say." The witness: "Yes, sir."

There was evidence tending to...