State ex rel. Steinbruegge v. Hostetter

• Court: Missouri Supreme Court
• Writing for the Court: GANTT
• Citation: State ex rel. Steinbruegge v. Hostetter, 115 S.W.2d 802, 342 Mo. 341 (Mo. 1938)
• Decision Date: 21 April 1938
• Docket Number: 35658
• Parties: State of Missouri at the relation of William Steinbruegge, Doing Business as West Florissant Motor Sales, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

115 S.W.2d 802

342 Mo. 341

State of Missouri at the relation of William Steinbruegge, Doing Business as West Florissant Motor Sales, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 35658

Supreme Court of Missouri

April 21, 1938

Record of The Court of Appeals Quashed.

A A. Alexander and T. J. Crowder for relator.

The opinion and decision of the Court of Appeals holds that when plaintiff proved appellant's ownership of the automobile in question, and that it was being driven by a regular employee of the appellant, a presumption arose that said employee was driving said car in the service of the appellant, and that the presumption having arisen, it remained in the case to the end unless it was destroyed by positive, unequivocal and unimpeached testimony adduced by the appellant showing that the driver was not driving the automobile in the service of appellant. The Court of Appeals in its opinion further ruled and held that the testimony adduced by appellant was not of such a character as to destroy the presumption, and in so holding the opinion and decision of said court is contrary to, and in conflict with the controlling decisions of this court, wherein this court has held and decided that equivalent or similar testimony was sufficient to destroy the presumption mentioned, and that the trial court should have sustained defendant's demurrer to the evidence. Guthrie v. Holmes, 272 Mo. 215; Ross v. St. Louis Dairy Co., 98 S.W.2d 717; State ex rel. Kurz v. Bland, 64 S.W.2d 638; Chiles v. Met. Life Ins. Co., 91 S.W.2d 164.

Eagleton Waechter, Yost, Elam & Clark for respondents.

(1) In ruling that the evidence adduced at the trial was not of such character to conclusively rebut or destroy the presumption arising from relator's ownership of the automobile and its operation by a general employee of the relator at the time of plaintiff's injury, the opinion and decision of the respondent judges of the St. Louis Court of Appeals was not in conflict with any controlling decision of this court. Sec. 7764, 7786 (d), R. S. 1929; King v. Rieth, 108 S.W.2d 1; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Yerger v. Smith, 89 S.W.2d 66. In any event, the evidence adduced by relator for the purpose of establishing that Hays was using the relator's automobile, which carried relator's dealer's license plates, solely for Hays' own uses and purposes, was not of such positive unequivocal, uncontradicted and undisputed character as to conclusively rebut or destroy the presumption of Hays' agency for relator. Schwartzman v. London & Lancashire Fire Ins. Co., 318 Mo. 109, 2 S.W.2d 593.

Gantt, J. All concur, except Hays, C. J., absent.

OPINION

GANTT

Relator seeks to have quashed the opinion of the St. Louis Court of Appeals in Waters v. Joseph Hays, and Wm. Steinbruegge, doing business as the West Florissant Motor Sales Co., 103 S.W.2d 498. In that case plaintiff sought recovery for personal injuries sustained when struck by Steinbruegge's automobile in the city of St. Louis. At the time of the collision defendant Hays was riding in the automobile and was in the general employ of Steinbruegge as an automobile salesman. Judgment for $ 3,000 against both defendants. Steinbruegge appealed.

In the Court of Appeals, error was assigned on the refusal of the trial court, at the close of the evidence, to direct a verdict for Steinbruegge. It was contended that there was no evidence tending to show that at the time plaintiff was injured, Hays was acting within the scope of his employment as a salesman for Steinbruegge. The assignment was overruled and the judgment affirmed. For a full statement of the facts, refer to Waters v. Hays et al., supra.

It is here contended that said ruling is in conflict with Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, a decision of this court en banc.

The rule is stated in the Guthrie case as follows:

"'Proof that the automobile belonged to defendant, and was being operated by defendant's regularly employed chauffeur, was prima-facie sufficient showing that the chauffeur was acting within the scope of his employment, and the burden of evidence shifted to the defendant to show the contrary.'

"We are inclined to the view that this does not too broadly state the presumption of fact (which arises from the proof of ownership of the car and proof of the general employment of the chauffeur) to the effect that such chauffeur was within the scope of his employment. To state it differently, if it be proved (as here) that the car owned by defendant, and if it be further proved (as here) that the chauffeur was in the general employment of defendant, then the presumption arises that such chauffeur was within the scope of his employment when the accident occurred. This, however, is as broad as the rule goes. From such a showing the plaintiff has a prima-facie case resting upon this presumption. Presumptions of this character (like all presumptions as to a fact in a case) take flight upon the appearance in evidence of the real facts. In Berry on Law of Automobiles, (2 Ed.), section 615, page 694, the doctrine is well stated:

"'This presumption cannot stand in the face of positive proof of facts to the contrary; and where the plaintiff has relied upon such presumption and it has been opposed by positive evidence to the contrary, he must then produce evidence tending to disprove the defendant's positive testimony or his prima-facie case will fall. The presumption in question is rather a frail thing. It is unlike an inference that arises upon the proof of certain facts, and which is necessarily true if the facts are true. It rests upon the facts that the automobile was...