State ex rel. Waters v. Hostetter

• Decision Date: 04 April 1939
• Docket Number: 36240
• Citation: 126 S.W.2d 1164,344 Mo. 443
• Parties: State of Missouri at the relation of Raymond G. Waters, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

126 S.W.2d 1164

344 Mo. 443

State of Missouri at the relation of Raymond G. Waters, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 36240

Supreme Court of Missouri

April 4, 1939

Record quashed.

Eagleton Waechter, Elam & Clark for relator.

The opinion and decision of the respondent Judges of the St Louis Court of Appeals now under review; Waters v Hays, 118 S.W.2d 39, in holding that this court, in the certiorari proceeding to review the first or earlier opinion of said St. Louis Court of Appeals, State ex rel Steinbruegge v. Hostetter, 115 S.W.2d 802, had passed upon the defendant Steinbruegge's demurrer to the evidence, and had ruled all the evidence to be insufficient to make a submissible case for this relator (plaintiff below) against Steinbruegge under the doctrine of respondeat superior, is in direct conflict with the prior controlling decision of this court in State ex rel. Steinbruegge v. Hostetter, supra, for the reason that the opinion and decision of this court in State ex rel. Steinbruegge v. Hostetter, supra, did not rule, nor undertake to rule either upon the sufficiency of the evidence to make a submissible case against said Steinbruegge or upon the demurrer to the evidence filed by said Steinbruegge. State ex rel. Steinbruegge v. Hostetter, 115 S.W.2d 802.

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

(1) Relator seeks to quash the opinion and record of the St. Louis Court of Appeals in the case of Waters v. Hays et al., 118 S.W.2d 39, on account of conflict allegedly existing between said opinion of the Court of Appeals and the opinion and decision of the Supreme Court in the case of State ex rel. Steinbruegge v. Hostetter et al., 115 S.W.2d 802. The burden is upon relator to point out the previous decisions of the Supreme Court which he claims are contravened or impugned by the opinion of the Court of Appeals; and also to point out the conflicts which exist. State ex rel. Silberforb v. Smith, 43 S.W.2d 1054; State ex rel. Tunget v. Shain, 101 S.W.2d 1; State ex rel. Quercus Lbr. Co. v. Robertson, 197 S.W. 79; State ex rel. Kansas City v. Trimble, 20 S.W.2d 17. (2) The Supreme Court in ruling certiorari to quash the opinion and record of the Court of Appeals is concerned only with conflict and the actual rulings of the Court of Appeals. State ex rel. Silberforb v. Smith, 43 S.W.2d 1054; State ex rel. Heuring v. Allen, 112 S.W.2d 843; State ex rel. Pub. Serv. Co. v. Shane, 119 S.W.2d 220.

OPINION

Ellison, J.

Certiorari bringing up the record in Waters v. Hays et al., 118 S.W.2d 39, from the St. Louis Court of Appeals. Our writ has been issued to the judges of that court twice in the cause, first at the instance of one of the defendants and this time at the relation of the plaintiff Waters. He sued Joseph Hays and William Steinbruegge in the Circuit Court of St. Louis for damages for personal injuries suffered when he was struck by an automobile driven by Hays and owned by Steinbruegge. He recovered a judgment against both defendants for $ 3000, from which Steinbruegge appealed, and the Court of Appeals affirmed it, Waters v. Hays, 103 S.W.2d 498. This court en banc in State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802, quashed the opinion of the Court of Appeals. The respondent judges thereupon wrote the opinion here under review, reversing the cause on the theory that our decision in the case made it incumbent on them to do so.

The plaintiff-relator, Waters, denies that our decision called for any such result. In the present certiorari proceeding he assails the second opinion of the Court of Appeals contending that instead of conforming to it conflicts with our aforesaid decision, in this: (1) it holds our opinion ruled the plaintiff's evidence was insufficient to take the case to the jury, when in fact we made no such ruling; (2) it holds our opinion ruled proof showing automobile dealer's license plates were displayed on the car at the time of the collision did not constitute substantial evidence that the car was then being used by Hays in the service of Steinbruegge, when in fact we made no such ruling.

Respondents' opinion under review (118 S.W.2d 39) refers to and quotes from their former opinion (103 S.W.2d 498) and our opinion (342 Mo. 341, 115 S.W.2d 802), and in part makes them the basis for its ruling. The undisputed evidence is that Steinbruegge was engaged in business as a dealer in new and old motor vehicles; that he was the owner of the car which struck Waters; that it was a used car and was for sale; that the car with Steinbruegge's knowledge carried his dealer's license plates, issued under Section 7764, Revised Statutes 1929 (Mo. Stat. Ann., p. 5186); and that the defendant Hays was in the general employ of Steinbruegge as a salesman of such cars. There was further (but controverted) evidence for plaintiff that Hays was driving the car at the time of the collision. The crucial question in the case was whether the foregoing evidence was sufficient to show he was then acting within the scope of his employment. The evidence for the defense was that he was not driving the car but was merely riding in it while one of his friends drove for his own accommodation; that he had spent the evening at a social gathering, and was not acting within the scope of his employment as a salesman for Steinbruegge.

The respondents held in their first opinion (103 S.W.2d l. c. 503) that the proof of Steinbruegge's ownership of the car plus the fact that Hays, the driver, was his regular employee, raised a presumption that Hays was acting in the scope of his employment; that that presumption remained in the case to the end unless it was destroyed by positive, unequivocal and unimpeached testimony to the contrary; and that no such countervailing evidence had been introduced. On this theory respondents sustained the action of the trial court in refusing defendants' instruction in the nature of a demurrer to the evidence, and affirmed the judgment for plaintiff.

When the case was brought here on certiorari the then relator, Steinbruegge, contended respondents' opinion was in conflict with Guthrie v. Holmes, 272 Mo. 215, 233, 198 S.W. 854, 858, Ann. Cas. 1918D, 1123. Our opinion in this Steinbruegge case (342 Mo. 341, 115 S.W.2d l. c. 803-4) quoted at length from the Guthrie case including a part thereof taken from Berry on Law of Automobiles (2 Ed.), section 615, page 644, which did say that the presumption raised in the instances mentioned in the preceding paragraph is "a frail thing" and cannot stand in the face of positive proof of facts to the contrary. This language standing alone possibly might be thought to justify the strong words "positive," "unequivocal" and "unimpeached" used by the respondent judges of the Court of Appeals in their opinion, which we have italicised above.

But we also quoted other parts of the Guthrie case, including one taken from Daily v. Maxwell, 152 Mo.App. 415, 426 133 S.W. 351, 354, which said that such presumptions "take flight upon the appearance in evidence of the facts themselves." It will be noticed these parts of the Guthrie opinion do not say positive evidence is required to overcome the presumption; on the contrary they declare the presumption takes flight on the appearance of the facts, thus treating it as a mere procedural presumption -- as more recent cases specifically have done. [Bond v. St. L.-S. F. Ry. Co., 315 Mo. 987, 1000, 288 S.W. 777, 782; State ex rel. Kurz v. Bland, 333 Mo. 941, 946, 64 S.W.2d 638, 641.] Our holding in the Steinbruegge case was that these parts of the Guthrie case announced the controlling rule. We said: "Of course, the...