Mann v. Stewart Sand Company

• Decision Date: 12 June 1922
• Citation: 243 S.W. 406,211 Mo.App. 256
• Parties: GEORGE MANN, Respondent, v. STEWART SAND COMPANY, Appellant
• Court: Kansas Court of Appeals

243 S.W. 406

211 Mo.App. 256

GEORGE MANN, Respondent, v. STEWART SAND COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1922

Appeal from the Circuit Court of Jackson County.--Hon. Samuel A Dew, Judge.

REVERSED AND REMANDED.

Judgment reserved and cause remanded.

Rogers & Yates for respondent.

Wilkinson Wilkinson & Dabbs, and Homer A. Cope for appellant.

OPINION

BLAND, J.

This is an action to recover damages to plaintiff's automobile alleged to have been negligently run into in Kansas City, Missouri, by a truck belonging to the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $ 250 and defendant has appealed.

Defendant offered no evidence, standing upon its demurrer to the evidence and now insists that there is no evidence that the person who was operating the truck was an agent or servant of the defendant and acting within the scope of his employment at the time of the collision. Plaintiff on direct examination testified that his car was run into by "a Stewart Sand truck;" upon cross examination he was asked "Did the truck have the words Stewart-Peck Sand Company on its side?" He then answered, "Stewart Sand Company so far as I can remember." Upon being further pressed he stated. "I think Stewart Sand Company was printed on the side. I don't know whether Peck's name was there on the side or not. I don't know." The truck had a Missouri license.

Plaintiff's witness, Maupin, without objection, testified that it was a Stewart Sand Company's truck. No attempt was made on cross examination to elecit how the witness knew that it was a truck of the defendant. Plaintiff's witness Carroll on direct examination testified that it was a Stewart Sand Company's truck and on cross examination he stated that the driver of the truck said that it belonged to the Stewart Sand Company. After the witness answered the question, defendant's counsel asked him, "Q. It said that on the side? A. I asked him and he said that was--Q. (interrupting) I object to that--don't tell me what you found out by asking. What did you see on the side of the truck? A. I don't remember whether it had a sign on it or not." Defendant at no time moved to strike out the testimony of the witness Carroll that the driver had said the truck belonged to the Stewart Sand Company. In fact defendant made no objection to the statement at the time it was being testified to. He said, "I object to that." This has been held to be no objection whatever. [Green v. Strother, 201 Mo.App. 418, 427, 428, 212 S.W. 399.] We think there is no question but that this evidence is sufficient to show that the truck belonged to the defendant. [Fleishman v. Ice & Fuel Co., 148 Mo.App. 117, 128, 127 S.W. 660.] The witness Maupin stated definitely that the truck was that of the Stewart Sand Company. No effort was made on cross examination to show that the witness was giving his conclusion. [Brubaker v. Electric Light Co., 130 Mo.App. 439, 446, 110 S.W. 12.] It is true that in the Fleishman case there was some other slight testimony aside from the fact that the name of the defendant in that case was upon the wagon, but the court said, "While perhaps proof of that fact (the name of the wagon) alone would carry to the jury the issue of defendant's liability, yet other facts were in proof and relevant to the issue." (Italics ours.) And in that opinion numerous cases from other States are cited where the only evidence of ownership and agency was the owner's name found upon the vehicle. In that case the court quotes from Birnbaum v. Lord, 7 Misc. 493, as follows:

"'As to the proof of ownership of the wagon, the defendants' name was on the wagon and there was no pretense of evidence on the trial that it did not belong to them. No witness was called by them on that point, although the proof of the fact, if it existed, must be deemed to be in defendants' possession; all presumptions on that point were therefore against them. [Wennerstrom v. Kelly, 7 Misc. 173, 27 N.Y.S. 326.] The ownership of the wagon and the agency of the driver were, therefore, questions for the jury.'" [Fleishman v. Ice & Fuel Co., supra, l. c. 128.] As before stated, in the case at bar defendant did not put on any testimony whatever.

However, defendant contends that the mere proof of ownership was not sufficient to show that the driver was the servant of the defendant acting within the scope of his employment, and to presume from the proof of ownership that the driver was defendant's servant and then again infer that he was acting within the scope of his employment is building inference upon inference or presumption upon presumption, which is improper. We think there is no merit in this contention. In fact such a contention has been ruled adversely by the Supreme Court. [O'Malley v. Const. Co., 255 Mo. 386, 391, 164 S.W. 565.] In this case there is no inference based upon an inference but both inferences are based upon the fact that the truck was owned by the defendant and evidence that it was at the time of the collision used in the business in which defendant was engaged. The evidence shows that the truck was a large one and filled with sand. The name of the defendant would indicate that it was in the sand business.

In support of its contention that liability cannot be fixed upon the defendant by a mere showing of ownership of the truck defendant cites the cases of...