Murphy v. Tumbrink, 20976.

• Decision Date: 04 March 1930
• Docket Number: No. 20976.,20976.
• Citation: 25 S.W.2d 133
• Court: Missouri Court of Appeals
• Parties: MURPHY v. TUMBRINK.

25 S.W.2d 133

MURPHY v. TUMBRINK.

No. 20976.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Rehearing Denied March 18, 1930.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Marie M. Murphy against William H. Tumbrink. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

George F. Heege, of Clayton, for appellant.

Dubinsky, Duggan & Stein, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for injuries received by plaintiff in a collision between a Chevrolet car which she was driving and a Chrysler car belonging to the defendant. The collision occurred at the intersection of Forsythe Boulevard and Skinker Road, in the city of St. Louis, on August 29, 1927.

The cause was tried to a jury. There was a verdict and judgment for plaintiff for $3,000, and defendant appeals.

Forsythe Boulevard runs east and west, and Skinker Road runs north and south. At the time of the accident, plaintiff was driving south on Skinker Road. She was accompanied by her sister. Defendant's car was also going south on Skinker Road. It was driven by a man, accompanied by two ladies. When the plaintiff's car had gone a few feet into the intersection, the defendant's car, going eighteen to twenty miles per hour, passed plaintiff's car on the left, and turned to the right, into Forsythe Boulevard, across the path of plaintiff's car. In so doing, the right rear fender or wheel of defendant's car collided with the left front fender or wheel of plaintiff's car, and dragged it a distance of about twenty feet into Forsythe Boulevard.

Plaintiff testified that by force of the impact, her head was thrown against the framework of her car to the left side; that she felt a severe shock and pain in her left side, shoulder, and arm; that her shoulder and arm were cut and bruised; that after the collision she drove her sister to her home at 6400 San Bonita avenue, which is about seven blocks from the scene of the accident; that about three days after the accident, she went to the office of Dr. R. C. Harris, where she received treatment; that she continued to visit Dr. Harris's office for treatment at intervals down to the time of the trial, which was had on December 10, 1928; that she suffered from sleeplessness, headaches, and nervousness; that her sleep was disturbed for about six months; that her headaches continued for about six months; that she still suffered from headaches occasionally; that she suffered from severe pains in her back for about seven months; that she had lost weight; that she had crying spells; that there had been considerable improvement in her condition at the time of the trial.

Dr. Harris testified that plaintiff came to his office on September 1, 1927; that she complained of headache, sleeplessness, backache, and nervousness; that he found a slight contusion on the back of her head, which was the only objective symptom; that he made a thorough examination, using the fluoroscope, for possible fractures and dislocations, and did not detect anything in the way of fractures or dislocations, though she complained of tenderness up and down the spine, especially near the sacroiliac joint; that he found that she had a functional disturbance of the nervous system, manifested by exaggerated reflexes; that he found no organic injury; that she was suffering from neurasthenia or neurosis; that he did not regard her condition as permanent, though he thought possibly she would always have a nervous tendency; that, in his opinion, her condition could have been caused by the shock received in the accident in question; that her condition had improved at the time of the trial. It appears that shortly after the accident plaintiff received a severe shock in the sudden death of her brother, which the doctor thought may have aggravated her nervous condition.

The evidence does not show who was driving defendant's car at the time of the accident. Defendant did not testify, or offer any testimony in his behalf. It was admitted, however, that he was the owner of the car which caused the plaintiff's injury.

Defendant assigns error here for the refusal of his instruction in the nature of a demurrer to the evidence. This assignment is based on the ground that the evidence does not show that the car was driven by the defendant, or by his servant acting within the scope of his employment. This view is out of accord with the settled law of this state. In the absence of any showing as to who was driving the car, there is a presumption that it was being driven by the owner, or by his servant acting within the scope of his employment. Edwards v. Rubin, 221 Mo. App. 246, 2 S.W.(2d) 205; McCarter v. Burger (Mo. App.) 6 S.W.(2d) 979; Rockwell v. Standard Stamping Co., 210 Mo. App. 168, 241 S. W. 979; Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S. W. 361. Such presumption does not rest on an inference of fact. The fact of ownership from which the presumption arises is not regarded as any evidence of the fact presumed, but the presumption is a mere rule of procedure, and is put to flight by an unequivocal showing on the part of the owner that the car was not driven by him, nor by his servant acting within the scope of his employment. Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S. W. 777.

Defendant assigns error upon the giving of plaintiff's instruction No. 1. The instruction tells the jury that if the defendant was the owner of the Chrysler Car, there was a presumption that the person operating the car was operating it for the defendant, and by the authority and with the consent of defendant, and it then devolves upon the defendant to show that the car was being operated by such person without the knowledge or consent of defendant. The instruction is clearly erroneous, in that it requires the...