State ex rel. Kurz v. Bland

• Citation: 64 S.W.2d 638,333 Mo. 941
• Decision Date: 19 October 1933
• Docket Number: 32413
• Parties: 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
• Court: United States State Supreme Court of Missouri

64 S.W.2d 638

333 Mo. 941

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

October 19, 1933

Motion for Rehearing Overruled August 24, 1933.

Motion to Transfer to Banc Overruled October 19, 1933.

Opinion filed at May Term, 1933, August 3, 1933; motion for rehearing filed; motion overruled August 24, 1933; motion to transfer to Court en Banc filed; motion overruled at September Term October 19, 1933.

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. Loeffler, 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.

OPINION

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 its 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 car such as the sedan involved in the collision and had driven this car that afternoon between four and five o'clock and had left it at his own place of business awaiting the arrival there of a Mr. Boult, defendant's sales manager who was to come for it. Boult came in his own car. There being two cars and only Boult to drive them, Ben Millstein, at his father's suggestion and with Boult's acquiescence, drove the sedan to defendant's place of business. After arriving there, desiring to visit a boy friend then confined in Research Hospital, he asked and obtained Mr. Boult's permission to use the car in calling upon his sick friend there. Ben Millstein was not in the employ of the defendant Motor Car Company but worked at his father's place of business. Arriving at the hospital, Millstein found at the bedside of his friend the latter's mother and a young lady. Upon leaving the hospital, the ladies accepted Ben Millstein's offer to take them in the sedan to their respective homes. And they proceeded and were en route when the collision occurred. This, as stated in the opinion, was all the evidence in the entire case bearing upon the question of Ben Millstein's alleged agency for defendant Motor Car Company. And being all the evidence recited in the opinion, it is all the evidence before us, since in proceedings such as this, we cannot go beyond the opinion for the facts.

The Greenlease Motor Car Company's demurrer offered at the close of all the evidence in the case was denied. The case was ruled by the Court of Appeals upon the error in the denial of the last demurrer, and the decision was based on the lack of substantial evidence of Millstein's agency. This ruling is claimed by the relator to be in conflict with controlling decisions of our court.

There are but three propositions of law before us. The first is upon the relator's contention that -- "Proof of ownership of an automobile makes a prima facie case of agency of the driver and liability of the owner for the negligence of the driver which entitles plaintiff to have her case submitted to the jury on that issue." Relator cites in support of the proposition the cases of O'Malley v. Herman Construction Co., 255 Mo. 386, 164 S.W. 565; Brucker v. Gambarno, 9 S.W.2d 918; Karguth v. Donk Bros. Coal & Coke Co., 299 Mo. 580, 253 S.W. 367, and Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361.

Before entering upon the examination of these authorities it should be noted that the decision of the Court of Appeals which we are to review, does not, as relator seems to be of impression it does, involve the question of the sufficiency of plaintiff's prima facie case to surmount the demurrer offered at the close of plaintiff's case in chief, and it is not upon the state of the record at that juncture of the case that the respondents predicated their opinion; but the case was on appeal determined upon the question of the substantiality of plaintiff's prima facie case as finally submitted to the jury upon the facts then in this record.

The cited case of O'Malley v. Construction Co., supra, was ruled on demurrer offered at the close of plaintiff's case in chief. The defendant offered no evidence in rebuttal but stood on his demurrer. It is thus apparent the case is without application to the situation here.

In Brucker v. Gambarno, supra, there was evidence for plaintiff that the defendant, himself an occupant of the car at the time of the casualty, stated at the scene thereof that he was the owner of the car which struck and injured plaintiff. In that case we held that plaintiff was entitled to go to the jury because of absence of countervailing evidence on behalf of the defendant. The proof of the ownership of the car at the time of the casualty, and the absence in the case of any...