Silent Automatic Sales Corporation v. Stayton

• Decision Date: 10 January 1931
• Docket Number: No. 8750.,8750.
• Citation: 45 F.2d 471
• Parties: SILENT AUTOMATIC SALES CORPORATION v. STAYTON.
• Court: U.S. Court of Appeals — Eighth Circuit

45 F.2d 471 (1930)

SILENT AUTOMATIC SALES CORPORATION v. STAYTON.

No. 8750.

Circuit Court of Appeals, Eighth Circuit.

November 28, 1930.

Rehearing Denied January 10, 1931.

George T. Priest, of St. Louis, Mo. (Boyle & Priest, of St. Louis, Mo., on the brief), for appellant.

Richmond C. Coburn, of St. Louis, Mo. (Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., on the brief), for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

VAN VALKENBURGH, Circuit Judge.

This is an action for personal injuries against appellant, a Delaware corporation, engaged in the business of selling oil burners in the city of St. Louis, Mo. April 27, 1928, a Ford automobile truck, driven by an employee of appellant, collided with an automobile, driven by the husband of appellee, in which appellee was riding, and the injuries sued for resulted. The accident occurred at the intersection of Oakland and Clayton avenues in said city. The trial resulted in a judgment for appellee. The truck in question was the property of one Clyde Smith, who was installation and service manager of appellant. The truck was used in the business of appellant. On its side panels were painted the words "Silent Automatic, 3546 Washington Avenue." On each side of the driver's cab were painted certain insignia, embodying a torch and flame, in the nature of a trade-mark, with the words "Silent Automatic" above and "Noiseless Oil Burner" below this mark. Similar signs were at one time displayed in front of appellant's place of business at 3546 Washington avenue.

Smith, in his testimony, described the status of the truck thus: "Well, I received a salary of $250.00 a month; that included the use of the truck." On the day in question Smith, as installation manager, had sent a crew out to install a burner at an apartment house in St. Louis. This crew consisted of Eugene Bill, Walter Dittmar, Marvin Sutterfield, and Harry Dittmar. Having completed the installation, they were on their way home when the collision occurred. This was in accordance with customary practice. This practice was that after completing an installation the men would, with the company's consent, be driven home in the truck, which was kept overnight in Dittmar's back yard. The following morning it would be driven from Dittmar's house to the office of appellant for the work of the day. The truck carried a tool box; and whatever material was left over, after the completion of an installation, was cared for by the men and returned to the company the following morning. There were tools and material of appellant in the truck at the time of the collision with appellee's car. It was driven by Harry Dittmar.

The assigned errors relied upon are:

1. Refusal to sustain at the close of the evidence appellant's demurrer based upon the claim that no showing had been made that, at the time of the collision, the driver of the truck was engaged in the line of his duty and within the scope of his employment.

2. Certain portions of the charge to the jury.

3. The action of the court in sustaining objections of appellee to certain arguments of counsel for appellant.

1. We consider first the action of the court in overruling the demurrer interposed at the close of the evidence in the case. The reason assigned by appellant, as the basis of its demurrer, was that no showing had been made that the driver of the truck was engaged in the line of his duty and within the scope of his employment. Much argument is devoted to the proposition that the presumption of liability, arising from the fact that the truck carried upon its panels and sides the name and address of the defendant company and insignia suggestive of its business, was a vanishing one in the face of uncontradicted proof to the contrary. In this connection an examination of some of the cases cited and considered may be instructive.

Starting with Missouri, in which state this controversy arose, the Supreme Court, in Barz v. Fleischmann Yeast Co., 308 Mo. 288, 300, 271 S. W. 361, 364, points out that when plaintiff makes a prima facie case the respondent then takes the laboring oar, and the jury is not bound to believe respondent's evidence even if it has not been contradicted a proposition of wide spread and authoritative acceptance. Reiss v. Reardon (this court) 18 F.(2d) 200, and D'Aleria v. Shirey (C. C. A. 9) 286 F. 523, and quotes approvingly from Peterson v. Railroad, 265 Mo. 462, 479, 178 S. W. 182, that "after a prima facie case has once been made out, the case can never be taken from the jury." It was there held that the facts that the truck causing the injury was used by the defendant yeast company in its business, and was driven by an employee of that company, together with the further fact that, emblazoned upon it, was defendant's company name, made a prima facie case against defendant which placed upon it the burden of proving that the driver was not using the truck in his master's business and within the scope of his employment.

In Burgess v. Garvin, 219 Mo. App. 162, 272 S. W. 108, it was held that where a canvasser, in soliciting business, used his own automobile with his company's consent, and, when finishing his day's work, would take the automobile with the company's goods to a private garage, where they would be stored for the night, and was on his way to the garage at the time of plaintiff's injury, such person was then and there acting within the scope of his employment.

In Mann v. Stewart Sand Co., 211 Mo. App. 256, 243 S. W. 406, the name of the defendant was printed on the side of the truck. Defendant offered no evidence, but stood on its demurrer. It was held that the name on the truck raised a presumption that the truck was owned by it and operated by it or by its servant acting within the scope of his employment. In Fleishman v. Polar Wave Ice & Fuel Co., 148 Mo. App. 117, 127 S. W. 660, the holding was the same.

In Murphy v. Tumbrink (Mo. App.) 25 S.W.(2d) 133, 134, the evidence did not show who was driving the car. The defendant offered no testimony, but demurred to the evidence. Held, in the absence of any showing as to who was driving the car, that the presumption was that it was being driven by the owner, or by his servant acting within the scope of his employment. Held further that this "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."

The Supreme Court of Missouri, in Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S. W. 777, says that this presumption is a mere rule of procedure shifting the burden of evidence to defendant.

Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534, recognizes the presumption, but holds that it may be overcome by uncontradicted proof to the contrary; that, in such case, the question is one for the court and not for the jury.

It is felt to be unnecessary to multiply cases that may be adduced upon the lines indicated in the foregoing citations. The obvious rule deducible therefrom is that the presumption created vanishes, if at all, only when rebutted by uncontradicted proofs. That, in such case, the question is one for the court, and it would follow, we think, that the court would take the matter from the jury only upon the well known principle that the evidence in a given case is so clear that reasonable men cannot differ as to the verdict which ought to be rendered.

In the case at bar the status of the truck does not rest solely upon the words and insignia painted upon its sides. There is no dispute as to the ownership of the car, nor that it was used in the business of appellant. The fact that ownership was in Smith, an employee, instead of in appellant, cannot avail the latter. Yellowway v. Hawkins (C. C. A. 8) 38 F.(2d) 731. The crucial question upon this phase of the controversy is whether the employee-driver was then and there engaged in the line of his duty, and within the scope of his employment. Upon this point there is no categorical contradiction. The issue must be resolved upon the undisputed facts as outlined above.

The great weight of reason and authority is to the effect that where an employee is returning from work, with the consent and by authority of the employer, in a vehicle owned or used in the business of the employer, he is acting within the scope of his employment.

"Where a master places at the disposal of his servant an automobile to be used by the servant in going to and from his work, the transportation is beneficial to both, and the relation of master and servant continues while the automobile is used for such purpose." Dunbaden v. Castles Ice Cream Co., 103 N. J. Law, 427, 135 A. 886; Auer v. Sinclair Refining Co., 103 N. J. Law, 372, 137 A. 555, 54 A. L. R. 623; Ackerson v. Jennings Co., 107 Conn. 393,...