State ex rel. Kurz v. Bland, 32413.

Citation64 S.W.2d 638
Decision Date19 October 1933
Docket NumberNo. 32413.,32413.
PartiesSTATE OF MISSOURI at the Relation of LEONA KURZ, Relator, v. EWING C. BLAND, HENRY L. ARNOLD and FRANCIS H. TRIMBLE, Judges of the Kansas City Court of Appeals.
CourtUnited States State Supreme Court of Missouri
64 S.W.2d 638
STATE OF MISSOURI at the Relation of LEONA KURZ, Relator,
v.
EWING C. BLAND, HENRY L. ARNOLD and FRANCIS H. TRIMBLE, Judges of the Kansas City Court of Appeals.
No. 32413.
Supreme Court of Missouri, Division 1.
October 19, 1933.*

[64 S.W.2d 639]

Certiorari.

WRIT QUASHED.

Joseph H. Glass and Chas. N. Sadler for relator.

(1) Proof of ownership of an automobile makes prima facie case of agency of driver and liability of owner for negligence of driver, which entitles plaintiff to have case submitted to jury on that issue. Barz v. Fleischmann Yeast Co., 271 S.W. 364; O'Malley v. Herman Const. Co., 164 S.W. 566, 255 Mo. 386; Brucher v. Gambarno, 9 S.W. (2d) 921; Karguth v. Donk Bros. Coal & Coke Co., 253 S.W. 371. Applied in the following cases by Courts of Appeals: Fleischmann v. Ice & Fuel Co., 127 S.W. 660, 128 Mo. App. 117; Hampe v. Versen, 32 S.W. (2d) 793; Benson v. Smith, 38 S.W. (2d) 747; Rockwell v. Standard Stamping Co., 241 S.W. 981; Mattocks v. Emerson Drug Co., 33 S.W. (2d) 147. (2) A prima facie case once made by plaintiff cannot be destroyed by parol testimony offered by defendant. Peterson v. Railroad, 265 Mo. 479, 178 S.W. 197; Barz v. Fleischmann Yeast Co., 271 S.W. 364, 308 Mo. 300; Diehl v. Fire Brick Co., 299 Mo. 641, 253 S.W. 990; Gannon v. Laclede Gaslight Co., 46 S.W. 972. Applied by Courts of Appeals in following cases: Linton v. St. Louis Lightning Rod Co., 285 S.W. 186; Ward v. Scott County Milling Co., 47 S.W. (2d) 253; Yarber v. Connecticut Fire Ins. Co., 10 S.W. (2d) 961. (3) Proof of statements made by driver immediately after collision as to ownership of automobile are admissible in evidence. Also statements concerning agency are admissible. Barz v. Fleischmann Yeast Co., 271 S.W. 363; Harriman v. Stowe, 57 Mo. 95; Brownell v. Railroad Co., 47 Mo. 239; Peck v. Ritchey, 66 Mo. 118; 18 R.C.L., sec. 244, p. 784.

Horace Guffin and Edmund B. Smith for respondents.

(1) Mere admitted ownership of an automobile in the absence of competent evidence of a relationship of agency, whether general or specific, is not sufficient to supply necessary proof of agency of driver or that alleged agent was engaged in the business of his supposed master or principal. (a) If admitted ownership of an automobile alone raises a presumption of agency, then the undisputed proof of the facts removes that presumption. Murphy v. Loeffier, 39 S.W. (2d) 550; Bond v. St. L.-S.F. Ry. Co., 288 S.W. 782; Hays v. Hogan, 200 S.W. 286; Guthrie v. Holmes, 198 S.W. 855; Horn v. Rhodes, 296 S.W. 389; Griffey v. Koehler, 50 S.W. (2d) 693. (2) Neither the agency nor the extent of the alleged agent's authority can be established by the mere declarations or acts of the alleged agent. State ex rel. Vesper Buick Auto Co. v. Daues, 196 S.W. (2d) 700; Fry v. Railroad, 200 Mo. 406; Waverly, etc., Co. v. St. L. Cooperage Co., 112 Mo. 389; Mitchum v. Dunlap, 98 Mo. 421.

HAYS, J.


On certiorari to the respondents, judges of the Kansas City Court of Appeals, by which it is sought to quash the record of said Court of Appeals made in the case of Leona Kurz, plaintiff, v. Greenlease Motor Car Company, a corporation, and others, defendants. The decision of the Court of Appeals will be found in 52 S.W. (2d) at page 498.

It appears from the opinion rendered by the respondents that the plaintiff, while riding as a passenger in a taxicab, was injured when, at a street intersection in Kansas City, a collision occurred between the taxicab and an automobile owned by defendant, Greenlease Motor Car Company, a corporation, engaged in the purchase and sale of automobiles. She sued said motor car company and the owner of the taxicab and recovered a verdict and judgment for her injuries against the copartners owning the taxicab and against the Greenlease Motor Car Company, and the latter appealed from that judgment to said Court of Appeals, wherein said judgment was as against said Greenlease Motor Car Company, reversed.

At the time of the collision one Ben Millstein was driving defendant's automobile, a sedan. After the collision occurred the drivers got out of their respective cars and talked together. The plaintiff thus detailed the conversation: "Our driver of our car asked the boy, `Who belongs to that car?' and he said, `The Greenlease Motor Car Company;' and our driver asked him `How did you get that car?' and he said `I am working for them.' That's what I heard." She further testified as to being taken home in the sedan by the driver thereof and as to this statement being made by him en route: "He told me that he took that car out for a demonstration because his father would buy that car." The lady who was at the time riding with the plaintiff testified: "I heard him say that he was working for the Greenlease Motor Car Company and that his father was considering buying a car and that he was demonstrating this car for his father." The recital in the opinion concludes: "This was the whole of the testimony in plaintiff's behalf relied upon as tending to show that Millstein, the driver of the sedan, was the agent of the defendant motor car company. All of said testimony was objected to by this defendant and after its admission this defendant unsuccessfully moved to strike it out as being wholly incompetent and inadmissible to prove agency by the declaration of the alleged or supposed-to-be agent."

At the close of plaintiff's case in chief this defendant tendered it demurrer to the evidence and the same was by the court denied.

Thereupon evidence on behalf of the defendant was introduced which tended to show the following: Phillip Millstein, father of the driver of the sedan, had been negotiating with said Motor Car Company for the purchase of a...

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10 cases
  • State ex rel. Kurz v. Bland
    • United States
    • Missouri Supreme Court
    • October 19, 1933
  • Wells v. Asher, 7448
    • United States
    • Missouri Court of Appeals
    • December 29, 1955
    ... ...         On this state of facts, it would seem that plaintiff clearly would be ... 711, 98 S.W.2d 969, 974(11); State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638, 641; Duncker v ... ...
  • Chandler v. New Moon Homes, Inc.
    • United States
    • Missouri Supreme Court
    • September 11, 1967
    ... ... Page 134 ... 315 Mo. 987, 288 S.W. 777, 782; State ex rel. Kurz v. Bland (banc), 333 Mo. 941, 64 S.W.2d 638, ... ...
  • Hill v. St. Louis Public Service Co.
    • United States
    • Missouri Supreme Court
    • October 19, 1933
    ... ... Such ... is the prevailing rule in our own state and jurisdiction ... [Missouri cases cited.] And such is ... approved in State ex rel. Wells v. Haid, 324 Mo ... 759, 761, 25 S.W.2d 92, though ... ...
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