Myers v. McMaken
| Decision Date | 12 November 1937 |
| Docket Number | 30077. |
| Citation | 276 N.W. 167,133 Neb. 524 |
| Parties | MYERS v. MCMAKEN ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In an action for damages growing out of a collision between an automobile and a truck, evidence that the name of defendant was on the sides of the truck raises a presumption that the truck belonged to defendant.
2. Such presumption vanishes, however, when rebutted by uncontradicted proof that the defendant is not the owner of the truck.
3. Evidence of acts or declarations of an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent even though it may properly be designated as a part of the res gestae.
4. Evidence of an offer or desire to compromise, consisting of a direct offer to buy peace, or settle a controversy without respect to legal liability, is not admissible against the person making it.
Appeal from District Court, Douglas County; Day, Judge.
Action by Sylvia Sweeten Myers against Ray McMaken, impleaded with the Watson Brothers Transfer Company, Incorporated. From an adverse judgment, plaintiff appeals.
Affirmed.
L. Q Hills and Gaines, McLaughlin & Gaines, all of Omaha, for appellant.
Fradenburg, Webb, Beber, Klutznick & Kelley, of Omaha, for appellees.
Heard before GOSS, C. J., and ROSE, EBERLY, DAY, PAINE, CARTER, and MESSMORE, JJ.
Plaintiff commenced this action against the defendants to recover damages for injuries sustained in an automobile collision. The trial court directed a verdict against plaintiff as to the defendant Watson Brothers Transfer Company. From the overruling of her motion for a new trial plaintiff appeals.
The evidence discloses that on July 28, 1935, at about 3 a. m., a truck bearing the name of Watson Brothers Transfer Company collided with the automobile in which plaintiff was riding, causing the injuries of which she complains. Defendant in its answer pleaded that Ray McMaken, the truck driver, was the owner of the truck, which allegation was not denied in the pleadings or evidence. It further appears that McMaken was a foreman for defendant at its warehouse, working regularly from 1 p. m. to 10 p. m. of each day. The record further shows that, after colliding with the car in which the plaintiff was riding, McMaken attempted to escape from the scene of the accident but was caught by a policeman a block or two away. Plaintiff attempted to prove by the officer that at the time McMaken was apprehended he informed the officer " that he was in a hurry and he was going to make a pick-up for Watson Brothers Company by whom he was employed." This evidence of the officer was excluded by the trial court and plaintiff contends that this ruling was prejudicially erroneous. Plaintiff also offered evidence to the effect that the owner of the car in which plaintiff was riding negotiated a settlement with the Watson Brothers Transfer Company at which time Ray Watson, an officer of the company, stated that he desired to negotiate a settlement of damages with the plaintiff. This evidence was also excluded by the trial court and is alleged by plaintiff to constitute prejudicial error.
It cannot be successfully disputed that plaintiff had the burden of proving that Watson Brothers Transfer Company was the owner of the truck, that McMaken was an employee of the owner, and that McMaken was, at the time of the accident engaged in the business of his employer. Plaintiff contends that evidence showing that the name of the defendant Watson Brothers Transfer Com pany was painted on the outside of the truck is sufficient to take the issue of ownership to the jury. The better rule is that such evidence raises a presumption of ownership. Tieman v. Red Top Cab. Co., 117 Cal.App. 40, 3 P.2d 381; Robeson v. Greyhound Lines, Inc., 257 Ill.App. 278; Rockwell v. Standard Stamping Co., 210 Mo.App. 168, 241 S.W. 979; Weber v. Thompson-Belden & Co., 105 Neb. 606, 181 N.W. 649.This presumption vanishes, however, when rebutted by uncontradicted proof. Silent Automatic Sales Corporation v. Stayton (C.C.A.) 45 F.(2d) 471.In the case at bar it is not disputed that McMaken was the owner of the car. Any presumption that Watson Brothers Transfer Company was the owner because of the fact that its name was written on the truck must necessarily fall where the record establishes that the driver of the truck was in fact the owner. There being insufficient proof in the record that Watson Brothers Transfer Company was the owner of the truck, there can be no presumption that the driver of the truck was its employee engaged within the scope of his employer's business at the time of the accident. The record further shows that McMaken was a warehouse foreman for Watson Brothers Transfer Company, working from 1 p. m. to 10 p. m. each day. The evidence shows that the accident...
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