State ex rel. Baumann v. Doder

• Decision Date: 08 November 1938
• Docket Number: 24743
• Citation: 121 S.W.2d 263
• Parties: STATE OF MISSOURI ex rel WILLIAM F. BAUMANN, Collector of Revenue of the City of St. Louis, Appellant, v. DAN DODER and ZORKA DODER, Respondents
• Court: Missouri Court of Appeals

121 S.W.2d 263

STATE OF MISSOURI ex rel WILLIAM F. BAUMANN, Collector of Revenue of the City of St. Louis, Appellant, v. DAN DODER and ZORKA DODER, Respondents

No. 24743

Court of Appeals of Missouri, Eastern District

November 8, 1938

Appeal from Circuit Court, City of St. Louis. Hon. Joseph J. Ward Judge.

AFFIRMED.

Becker and McCullen, JJ., concur; Hostetter, P.J., absent.

OPINION

This is an action on two delinquent tax bills, one for $ 190.25 for the year 1926, and the other for $ 190.99 for the year 1927, against the real estate of defendants in the City of St. Louis.

The action was originally brought by Edmond Koeln, collector of said city as relator, and his successor in office, William F. Baumann, was afterwards substituted as relator by leave of court.

The petition is conventional. The defense is payment.

The trial with a jury resulted in a verdict for defendants. Judgment was given accordingly. Relator appeals.

Relator assigns error here upon the refusal of his peremptory instruction directing a verdict in his favor. This assignment is put on the ground that there is no substantial evidence to show agency between the collector and one Roy Cunningham to whom defendants paid the taxes in suit.

The evidence for the defendants shows that they made payment of the original tax bills for the years 1926 and 1927 to Cunningham, who came to their place of business with the original tax bills stamped "paid" by the genuine "paid" stamp of the collector. Cunningham had been in the collector's office on previous occasions when the defendants were there and was working behind the counter assisting in waiting on patrons of the office including the defendants. He worked behind the counter and handled tax bills. He was in the office daily. He had collected other tax bills and turned the money into the collector's office. Upon receiving payment from defendants of the original tax bills he delivered the bills to defendants stamped "paid," as before stated. The records of the collector's office showed these taxes marked "paid." This marking was later changed when an audit showed a shortage in the office. When the shortage was discovered the collector called upon the defendants to pay again the taxes they had paid to Cunningham. Defendants declined to do this. They then contacted Cunningham, and took him to the collector's office, where he was confronted by Collector Koeln and his chief clerk. He told the collector that he had paid the money into the collector's office to an employee named John Ball. Collector Koeln did not at the time deny that Cunningham was an employee of his office authorized to collect these taxes. Nor did he deny that John Ball was an employee in his office authorized to receive taxes. Nor did his chief clerk make any such denial. Nor was there any satisfactory explanation as to how it happened that these taxes were marked "paid" in the records of the office. Collector Koeln did not testify. Neither did his chief clerk, nor John Ball. The receipted tax bills paid by defendants were turned over by them to the circuit attorney Howard Sidener, who gave a receipt to them for the bills. The bills were turned over to the circuit attorney upon the persistent request of Collector Koeln. Defendants were never able afterwards to get the bills from the circuit attorney's office.

The cashier under Collector Koeln testified on behalf of relator that "Cunningham never worked for Mr. Koeln"; that he was a title investigator, and that this accounted for his daily presence in the collector's office. He admitted, however, that the records in his office showed that the taxes here in suit had been paid. He further testified that there was a record kept in the office showing a roll of the employees of the office. This record was not produced.

We regard the evidence as amply sufficient to warrant the finding that Cunningham, who collected the taxes evidenced by the receipted bills and delivered the bills to defendants when he made the collection, was the duly authorized agent of the collector.

Agency need not be shown by direct evidence, but it may be presumed or inferred from the facts and circumstances. Phillips v. Geiser Mfg. Co., 129 Mo.App. 396, l.c. 401, 107 S.W. 471; American Ry. Express Co. v. Scanlon (Mo. App.), 247 S.W. 254; Johnson v. Hurley, 115 Mo. 513, l.c. 520, 22 S.W. 492; Koons v. St. Louis-San Francisco Ry. Co. (Mo. App.), 229 S.W. 232; Boggess v. Kansas City Rys. Co. (Mo. App.), 229 S.W. 404; Noren v. American School of Osteopathy (Mo. App.), 2 S.W.2d 215, l.c. 220; Kaden v. Moon Motor Car Co. (Mo. App.), 26 S.W.2d 812.

But relator here insists that if a presumption of agency could fairly be drawn from the facts and circumstances in evidence, such presumption was completely destroyed or put to flight by positive and unequivocal testimony to the contrary introduced on his behalf. Relator relies, of course, on Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, and cases like it.

Since it was said in the Guthrie case that the presumption arising in that sort of case is a frail thing, which is put to flight when opposed by positive evidence to the contrary, it seems that some of the learned members of the bar have insisted that all presumptions are frail things, of little or no importance, which disappear upon the first appearance of positive evidence to the contrary, though introduced on behalf of the parties against whom the presumptions operate. But this is not so. Just the contrary is so. Most presumptions are robust, virile things that remain in the case to the end, to be reckoned with by the jury as against whatever evidence...