Martin v. Sloan

Citation377 S.W.2d 252
Decision Date13 April 1964
Docket NumberNo. 2,No. 49995,49995,2
PartiesConnie MARTIN, Respondent, v. Nora Belle SLOAN, Administratrix of the Estate of Rolla Alexander Sloan, deceased, Appellant
CourtUnited States State Supreme Court of Missouri

William H. Bruce, Jr., Centerville, Robert T. Smith, William L. Mason, Jr., St. Louis, for appellant.

Jackson, Thomasson & Dickerson, Cape Girardeau, Schnapp, Cooper & Graham, Fredericktown, for respondent.

STOCKARD, Commissioner.

In this action for wrongful death the jury awarded damages in the amount of $25,000 to the surviving widow, and the defendant has appealed from the ensuing judgment.

On January 24, 1961, a 1 1/2-ton Ford flat-bed truck which was being driven by Farrell Lee Martin, the husband of plaintiff-respondent, collided head-on with a Chevrolet automobile in which Rolla Sloan and Virgil Voyles were riding. All three persons died as the result of the collision without making any statement concerning the cause or circumstances of the collision, and there were no other witnesses to the accident. The defendant-appellant is the administratrix of the estate of Rolla Sloan, alleged by respondent and apparently found by the jury, to have been the operator of the Chevrolet automobile. Appellant first contends that the trial court erred in overruling her motion for a directed verdict because the evidence was not sufficient to present a jury question on the issue of (1) whether Rolla Sloan was the driver of the Chevrolet automobile, and (2) whether the driver of the Chevrolet automobile was negligent. Appellant presented no evidence. We shall set forth respondent's evidence, and in the determination of the above issues we shall consider the evidence in the light most favorable to respondent and give her the benefit of all favorable inferences which reasonably may be drawn therefrom. Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665, 668; Probst v. Seyer, Mo., 353 S.W.2d 798, 91 A.L.R.2d 1252.

At an indefinite time, but stated to have been 'sometime a little after noon' of January 24, 1961, Rolla Sloan and Virgil Voyles were, for thirty minutes to an hour, at the Amsden Garage located a short distance west of the intersection of Highways 21 and 49 in Reynolds County. 'Around 2:00 o'clock' Sloan and Voyles went to Barber's Store, which was located at the above intersection. Sloan went into the store, 'talked just a very few minutes' with Jim Cozine, and purchased six cans of beer. He then 'took off' in a 1958 Chevrolet automobile and headed south toward Centerville with Voyles sitting in the passenger side of the front seat. The automobile belonged to Thomas Voyles, who was not otherwise identified. The collision with the Martin Ford truck occurred between Barber's Store and Centerville on Highway 21 about 2.6 miles south of the intersection.

Highway 21, where the collision occurred, runs approximately north and south. It was of 'blacktop' construction with a white center stripe. The day was extremely cold, the weather was partly cloudy but with good visibility for driving, and the highway was dry. After the collision the Ford truck was found on the east side of the highway headed north with the right rear dual wheels off the blacktop portion of the highway and on the shoulder of the highway. To the south of the truck, which was the direction from which it was traveling, and in the right hand side of the northbound traffic lane for a distance of fifty feet were 'intermittent skid marks' leading to the left rear dual wheels of the truck. On the east shoulder of the highway there were 'dashes' in the gravel leading to the right rear dual wheels of the truck. There were no skid marks north of the place of the collision. Immediately west of the truck, but in the east lane of the highway, there were gouge marks in the pavement, described by the sheriff of Reynolds County as being 'like chicken tracks' extending to within six inches of the centerline of the highway. Debris was scattered all over the highway, but the 'main center' of the debris was four feet east of the centerline of the highway. The Chevrolet automobile was found in the ditch off the west side of the highway with the back wheels and the trunk shoved into the embankment. Extending from the area described as the 'main center' of the debris there were some marks, identified by the sheriff as skid marks, leading west to the Chevrolet automobile. Photographs of the Ford truck and Chevrolet indicate that they, particularly the Chevrolet, were virtually demolished. The speedometer of the Chevrolet after the collision 'showed 68 miles an hour.' The lumber which had been on the truck was scattered along the highway, mostly on the east side, for a distance of 75 feet north of the truck. When found, both Sloan and Voyles were dead and lying on the highway immediately south of the Chevrolet, and it can fairly be said that from their positions no inference is reasonably permissible as to who had been driving. Martin was 'under the driver's seat' in the cab of his truck and was fatally injured. The only evidence as to the time of the collision was the testimony of the sheriff that after being advised of its occurrence he drove 'about two and one-half miles' to the scene and arrived there 'probably between 1:30 and 2:00 o'clock, as I recall. I had just been back from lunch a short time.'

Respondent's case was submitted to the jury on the theory that Sloan was the operator of the Chevrolet, and the question for decision is whether there was sufficient evidence from which a jury reasonably could find that fact. Proof as to who was driving the Chevrolet automobile must necessarily depend upon the principle, if applicable, that proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference or rebuttable presumption that the fact exists at a subsequent time. We must first determine what facts, most favorable to respondent, the jury could find existed, and then determine whether those facts authorize the application of the above principle.

Sloan and Voyles were at Barber's Store only a 'few minutes' and left 'around 2:00 o'clock' headed toward Centerville. The collision occurred 2.6 miles distant at a time so that the sheriff, after being notified of it, could drive to the scene from Centerville and arrive 'between 1:30 and 2:00 o'clock.' These statements of time are necessarily estimates. But, since Sloan and Voyles stayed at the Amsden garage for thirty minutes to an hour, they could not have gone there after leaving Barber's Store and arrived at the scene of the collision within the time limitations shown by the evidence. The jury reasonably could find that Sloan and Voyles first went to the garage, and then to Barber's Store; that they then started toward Centerville, with Sloan doing the driving, and that at the time they were last seen they were 2.6 miles from the scene of the accident and driving toward it.

The general rule is stated in Suarez v. Thompson, Mo., 283 S.W.2d 584, 587, as follows: "Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. * * * In other words, it will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist so long as such facts usually do exist. The inference is extremely paint in connection with matters of intrinsic impermanency; and where a fact or condition is not reasonably continuous in its nature, there is no presumption of its continuance. * * *." See also 31A C.J.S. Evidence Sec. 124. The contention of appellant is that the fact that one is operating an automobile at a given time or place is not a fact of a continuous nature which would authorize an inference, absent evidence to the contrary, that such fact continued to exist.

'The limits of time within which the inference of continuance possesses sufficient probative force to be relevant vary with each case. Always strongest in the beginning the inference steadily diminishes in force with lapse of time, at a rate proportionate to the quality of permanence belonging to the fact in question, until it ceases or perhaps is supplanted by a directly opposite inference. In other word, it will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist as long as such facts usually do exist.' 31A C.J.S. Evidence Sec. 124(1), pp. 223-224. It thus appears that whether, as a matter of law, an inference of continuance may be drawn depends upon the particular facts and circumstances of each case, and particularly with reference to time and distance between the established fact and the continued fact to be inferred.

It may be admitted that the fact that a person is operating an automobile is a fact of the nature to have a limited 'quality of permanence,' but it does not mean that at no time subsequent to the established fact may there be an inference of continuance. The courts have recognized that upon proof that a particular person was driving an automobile shortly prior to an accident, an inference that he continued as the driver, absent evidence to the contrary, may be permissible. Flick v. Shimer, 340 Pa. 481, 17 A.2d 332; Morgan v. Peters, 148 Pa.Super. 88, 24 A.2d 644; Claussen v. Johnson's Estate, 224 Iowa 990, 278 N.W. 297; Ohio Bell Tel. Co. v. Lung, 129 Ohio St. 505, 196 N.E. 371; Renner v. Pennsylvania R. Co., Ohio App., 103 N.E.2d 832; Huestis v. Lapham's Estate, 113 Vt. 191, 32 A.2d 115; and the annotation in 32 A.L.R.2d 988 at pp. 992-993 where the above cases are cited and discussed. See also, Sparks v. Southeastern Greyhound Lines, D.C.Miss., 173 F.Supp. 896, reversed on other grounds, 5 Cir., 283 F.2d 44; Sutton v. Tanger, 115 Cal.App. 267, 1 P.2d 521; Sigel v. Gordon, 117 Conn. 271, 167 A. 719; Weidlich v. New York, N. H. &...

To continue reading

Request your trial
29 cases
  • Duckworth v. U.S. Fidelity & Guaranty Co.
    • United States
    • Missouri Court of Appeals
    • February 24, 1970
    ... ... things continues to exist, until circumstantial or direct evidence shows to the contrary. Martin v. Sloan, Mo., 377 S.W.2d 252, 256(2, 3); Hogue v. Wurdack, Mo., 316 S.W.2d 523, 527(1). We cannot indulge in any presumption of unlawful activity ... ...
  • Duke v. Gulf & Western Mfg. Co.
    • United States
    • Missouri Court of Appeals
    • October 18, 1983
    ...court with one exception took all the remedial action defendant requested, we can find no prejudice in those rulings. Martin v. Sloan, 377 S.W.2d 252, 261 (Mo.1964). Moreover, because on the sole occasion when defendant did not receive the relief requested, plaintiffs' counsel refrained fro......
  • Wolfe v. Harms
    • United States
    • Missouri Supreme Court
    • March 13, 1967
    ...Court's.' Role of the Trial Judge, MAI, p. XXXV. Under these circumstances the court is not guilty of improper comment, Martin v. Sloan, Mo., 377 S.W.2d 252, 260(13); and the accuracy of the remark is inconsistent with any abuse of the considerable discretion allowed the court in controllin......
  • Hines v. Sweet, 10098
    • United States
    • Missouri Court of Appeals
    • May 12, 1978
    ...v. Smith, 480 S.W.2d 519, 520 (Mo.App.1972); Anderson v. Robertson, 402 S.W.2d 589 (Mo.App.1966). See generally Martin v. Sloan, 377 S.W.2d 252, 265(20) (Mo.1964); Patison v. Campbell, 337 S.W.2d 72, 75(2) (Mo.1960); Lynch v. St. Louis Public Service Co., 261 S.W.2d 521, 524(9) (Mo.App.1953......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT