State ex rel. Automobile Co. v. Daues

• Decision Date: 30 July 1929
• Docket Number: No. 29132.,29132.
• Citation: 19 S.W.2d 700
• Parties: THE STATE EX REL. VESPER-BUICK AUTOMOBILE COMPANY v. CHARLES H. DAUES ET AL., Judges of St. Louis Court of Appeals.
• Court: Missouri Supreme Court

19 S.W.2d 700

THE STATE EX REL. VESPER-BUICK AUTOMOBILE COMPANY v. CHARLES H. DAUES ET AL., Judges of St. Louis Court of Appeals.

No. 29132.

Supreme Court of Missouri, Division One.

July 30, 1929.

Certiorari.

RECORD QUASHED (in part).

W.E. Moser and Hensley, Allen & Marsalek for relator.

(1) The respondents, in holding that the evidence (aside from the testimony of Officer Hayhurst), was sufficient prima-facie to show that Bulan, in driving the Buick coupe referred to, was acting as the agent of relator, conflicts with the controlling decisions of this court in: Guthrie v. Holmes, 272 Mo. 215; Walker v. Railroad, 121 Mo. 575; Bolman v. Bullene (Mo. Sup.), 200 S.W. 1068; Hays v. Hogan, 273 Mo. 1. (2) The fact that the automobile driven by Bulan at the time of the accident bore license plates which had been left with relator by the owner, before the accident, and were afterward returned by relator to the owner, cannot be availed of as evidence that the automobile in question was owned by, or under the control of respondent, or that Bulan was relator's agent in driving the car, because there was no showing that the relator knew of or consented to such illegal use of the license plates. In view of the fact that Bulan's use of these plates constituted a misdemeanor, no presumption that relator was guilty of such act can be indulged, in the absense of evidence. The holding of respondents to the contrary conflicts with the following controlling decisions of this court: Long v. McDow, 87 Mo. 197; Maysville v. Truex, 235 Mo. 619; Nelson v. Jones, 245 Mo. 579; Hendricks v. Calloway, 211 Mo. 536. In this connection see also; Laws 1921, 1st, Ex. Sess., p. 86, sec. 13(c), as amended, Laws 1925, p. 294; Laws 1921, p. 105, sec. 29(d). (3) The statements of the defendant Bulan, made at the police station when under examination by the police, more than an hour after the accident, were not admissible in evidence against relator. Agency cannot be proven by the mere statements or declarations of the agent. They can be received in evidence only after the fact of the agency has been otherwise established, and then the agent's statements will be held binding on the principal only if made by the agent while transacting business for his principal, within the scope of his agency, or if the statements of the agent constitute part of the res gestae. The opinion of respondents, in holding the evidence in question admissible, is directly in conflict with the ruling of this court, in numerous cases, upon substantially the same state of facts. Atkinson v. School of Osteopathy, 240 Mo. 355; Redmon v. Railroad, 185 Mo. 11; Leahey v. Railroad, 97 Mo. 165; Barker v. Railroad, 126 Mo. 143; Ruschenberg v. Railroad, 161 Mo. 70; Koenig v. Railroad, 173 Mo. 698; Frye v. Railroad, 200 Mo. 377; Gray v. Earls, 298 Mo. 116.

Eugene J. McMahon and Charles E. Morrow for respondents.

(1) The evidence made a prima-facie case that the driver of the automobile was acting as the agent of relator at the time of the accident. The relator has cited no decisions of this court on the same or a similar state of facts, with which the opinion and the decision of the Court of Appeals on that question is in conflict, and we have found no such decisions. (2) The declaration of the driver of the automobile at the police station, about an hour after the accident, relative to the business contemplated by his agency, were admissible against relator as corroborative of and cumulative to the prima-facie case of agency, otherwise made by the evidence. Peck v. Ritchey, 66 Mo. 114; Barz v. Fleischmann Yeast Co., 308 Mo. 288; Smith v. Ins. Co., 6 S.W. (2d) 920; Mechanics Bank v. Rowell, 182 S.W. 991. The relator has cited no decision of this court on this question with which the opinion and decision of the Court of Appeals conflicts, and we have found none.

SEDDON C.

This is an original proceeding in certiorari wherein the relator seeks to have quashed the record and judgment of the St. Louis Court of Appeals in a certain cause lately pending in said court entitled. Charles Lanham and Anna Lanham, his wife, respondents, v. Vesper-Buick Automobile Company, a corporation, appellant, wherein said Court of Appeals affirmed the judgment of the Circuit Court of the City of St. Louis entered upon a verdict of a jury in favor of the plaintiffs and respondents. Before the submission of the certiorari proceeding in this court, the Hon. Charles H. Daues resigned his office as Judge of the St. Louis Court of Appeals, and his successor in said office, the Hon. George F. Haid, has been substituted as a party respondent herein in the place and stead of Judge Daues, and the substituted party has duly entered his appearance as party respondent in this court.

The opinion of the respondents in the appealed cause, insofar as such opinion involves the question of conflict with the last previous rulings of this court upon the subject discussed and ruled by respondents in such opinion, thus states and recites the applicable facts, and the conclusions of law reached and announced by the respondents, and applied to the recited state of facts:

"This is an action for damages for the wrongful death of plaintiff's minor child. Eugene Lanham, who was killed on October 10, 1925, when he was struck by an automobile, driven by defendant, John J. Bulan, a mechanic in the general employ of defendant, The Vesper-Buick Automobile Company. A third defendant, John U. Wanner, was joined in the action, inasmuch as the automobile in question had borne license plates that were shown by the official records to have been issued to him. At the close of plaintiffs' case, plaintiffs dismissed as to defendants Bulan and Wanner, whereupon the trial proceeded as to defendant, The Vesper-Buick Automobile Company alone, resulting in the return of a verdict in favor of plaintiffs, and against such defendant, for the sum of $3,000. Judgment was duly rendered, and the motion for a new trial of defendant, The Vesper-Buick Automobile Company, filed and overruled, after which an appeal was taken to this court.

"So far as concerns the respective pleadings, it will suffice to say that plaintiffs, in their petition, and in the submission of the case to the jury, relied upon negligence under the humanitarian doctrine; and that the separate answer of each of the three defendants was a general denial.

"The casualty herein involved occurred about three o'clock, on a Saturday afternoon, in front of 2117 Olive Street, in the city of St. Louis, where plaintiffs at the time resided. The deceased was a small child, five years of age, and had been playing on the sidewalk in front of his home with some other children of the neighborhood. A larger child ran out into the street towards the south, followed by the deceased, who went as far as the middle of the car tracks, when he turned to go back to the north. As he did so, he took one step forward, and was instantly struck by a Buick coupe, driven westwardly by defendant Bulan, and hearing Missouri license No. 118,765 for 1925, and was dragged twenty-five or thirty feet before the automobile was brought to a stop. The child was then placed in the automobile, and taken to the City Hospital, where it was found that life was extinct, after which the body was taken to the morgue by Bulan and those parties accompanying him... .

"It appeared from the testimony that the license plates upon the car that struck the deceased had originally been issued to defendant Wanner, for use upon a Buick sedan owned by him. However, on August 12, 1925, Wanner's sedan had been damaged beyond repair in a collision, and had been taken on the same day to the maintenance department of defendant. The Vesper-Buick Automobile Company, in the city of St. Louis. On September 2nd following, Wanner gave his order for a new car to such company, and was allowed a credit of $150 on the salvage from the old car in part payment for the new one. At the same time, he directed the company to retain his license plates until the new car was delivered, and on October 15th he received the new car with the original license plates thereon.

"It was also shown by Officer Hayhurst of the police force, who had accompanied Bulan to the City Hospital, and then to the morgue, that, after leaving the morgue, he and Bulan went to the station, where Bulan was `booked' and his `pedigree taken.' Over the strenuous objections of counsel for defendant, The Vesper-Buick Automobile Company, the witness was permitted to testify that Bulan had stated to him at the station that he was employed by the corporate defendant as a mechanic; that he received a commission on cars sold by such company; and that he had had the car in question out for demonstration, and was on his way back to the company's place of business when the accident happened. It further appeared that Bulan called defendant. The Vesper-Buick Automobile Company, over the telephone from the station, and requested that someone be sent to get the car.

"A second police officer, Hartwig, by name, testified that, after he had completed his investigation at the scene of the accident, he waited at the station for the return of Hayhurst and Bulan from the hospital, after which he and Hayhurst jointly propounded certain questions to Bulan; and that a period of at least one hour had clapsed between the time of the accident, and the time when the questions were asked.

"At the conclusion of plaintiffs' case, it was admitted by counsel for defendant, The Vesper-Buick Automobile Company, that Bulan was employed by such company as a mechanic, and that he had worked for it in such capacity both before and after the accident.

"The point on which defendant. The Vesper-Buick Automobile Company (hereinafter to be called the appellant), seems to place its chief reliance, as it asks for a reversal of the judgment, is the action of the court in permitting plaintiffs, over the objection of counsel, to prove,...