Waters v. Hays

• Decision Date: 06 April 1937
• Docket Number: No. 23944.,23944.
• Citation: 103 S.W.2d 498
• Court: Missouri Court of Appeals
• Parties: WATERS v. HAYS et al.<SMALL><SUP>*</SUP></SMALL>

103 S.W.2d 498

WATERS v. HAYS et al.^*

No. 23944.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Rehearing Denied April 20, 1937.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be published in State Reports."

Action by Raymond G. Waters against Joseph Hays and William Steinbruegge, doing business as the West Florissant Motor Sales. From a judgment for plaintiff, last-named defendant appeals.

Affirmed.

A. A. Alexander and T. J. Crowder, both of St. Louis, for appellant.

Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff when struck by an automobile at the intersection of Grand boulevard and Laclede avenue, in the city of St. Louis.

The trial, with a jury, resulted in a verdict for plaintiff against both defendants for $3,000, and judgment was given accordingly. Defendant Steinbruegge appeals.

The evidence shows that on the morning of December 2, 1933, at about one o'clock, plaintiff was struck by defendant Steinbruegge's Chevrolet sedan. Defendant Hays, who was at the time in the general employ of defendant Steinbruegge as an automobile salesman, was riding in the sedan which struck plaintiff. The sedan was proceeding south on Grand boulevard. Plaintiff, just prior to the time he was struck had alighted from a southbound street car, and according to his testimony, was standing in a safety zone just north of the intersection of Grand and Laclede.

Error is assigned by appellant here for the refusal of his instruction in the nature of a demurrer to the evidence.

The assignment is put on the ground that there is no proof in the record that defendant Hays, the driver of the sedan, was at the time of the accident in the discharge of any duty pertaining to his employment, and that the presumption that defendant Hays was on the business of the appellant, which arose upon proof of the ownership of the sedan and the general employment of defendant Hays, was put to flight by testimony which was positive, unequivocal, and unimpeached, introduced by defendant showing that defendant Hays was on a mission of his own.

In view of this assignment the evidence relevant to the issue as to whether or not defendant Hays was on the business of appellant will have to be set out in some detail.

It is not disputed that defendant Hays was in the general employ of appellant as an automobile salesman. Nor is it disputed that appellant was the owner of the sedan involved in the accident. Nor is it disputed that appellant was engaged in the business of selling both new and used automobiles, having his place of business at 6514 West Florissant avenue, in the city of St. Louis.

Plaintiff testified as follows:

"The first thing I knew after I was struck I was in the drug store at the northeast corner of the intersection. There was a crowd of people in the store and I was sitting in a chair. Joseph Hays, the man who said he was the driver of the sedan, was there. There was a police officer there. I was taken to the City Hospital where I received emergency treatment. Mr. Hays took me home from the hospital. He said he was driving the sedan that struck me. He told me he was salesman for an automobile company. He came back in the morning and took me out to see Dr. Sparhawk. He took me in his car. He took me out there at least four times."

Christopher A. McDonald testified, for plaintiff, as follows:

"I am a police officer of the City of St. Louis. On December 2, 1933, about one o'clock in the morning, I was called to the drug store located at the northeast corner of Grand and Laclede. I ascertained that Mr. Waters had been injured as a result of being hit by an automobile and investigated to ascertain who was the driver of the automobile that struck him. I talked to Joseph Hays. He told me he was driving south on Grand Avenue and that he had struck Mr. Waters as he was walking south. He said he was driving the automobile at the time, and that it was the property of the Florissant Motor Company. The automobile carried dealer's license plates."

Clifford William Young testified, for defendants, as follows:

"On December 2, 1933, the day of this accident, I lived at 4630 Delmar. I was a single man at that time. On the night of December 1st, I called Joseph Hays at the place where he worked about 8:30. I told him we were going to have a party and asked him to come over. The party was going on at 4630 Delmar, where I lived. There were six people there. He came there about 9:30. About 11 or 11:30 one of the couples wanted to go home, and I asked Mr. Hays if I could borrow his machine, and I did, and took them home, and came back. This couple lived in North St. Louis, on Amelia, right off of North Kingshighway. The car I used to take them home was this Chevrolet sedan, which was involved in this accident. Amelia Street, where this couple lived, is two or three miles northwest from where I lived. After I took this couple home, I got back to where I lived about 12 or 12:45. When I got back I asked Mr. Hays if I could use his car to take Miss McCleary home. That was the girl I was with. She lived in South St. Louis, three or four miles southeast from where I lived. Mr. Hays permitted me to use his car to take her home. I drove and Miss McCleary sat next to me, and Mr. Hays in the back seat. After I struck Mr. Waters I got out of the machine to see if he was hurt. Mr. Hays and I helped him up on the sidewalk. We went over to the drug store. We went from the drug store to the City Hospital in Mr. Hays' machine. Mr. Waters and Mr. Hays and Miss McCleary and I were in the machine. At that time Mr. Hays began to drive. We then got in the machine and went to the police station, and then we took Mr. Waters home. On the night in question when I called Mr. Hays, I did not have any business engagement of any kind with him. I had not been talking about purchasing an automobile or anything like that. I did not talk business with him that night at all. There were at the party that night Miss McCleary and myself, Burt Mertell and Jane Benkosky, and another couple, whose names I do not remember. There were three couples there when I called up Mr. Hays at his place of work. I did not tell the policeman that night anything about driving the automobile. The policeman asked who was driving that automobile that night. I don't know why I did not tell him I was driving it. Mr. Hays told the police that night right in the drug store that he was driving the automobile at the time it hit plaintiff."

Roxie McCleary testified, for defendants, as follows:

"I attended the party at Mr. Young's home. I arrived at about 7:30 or 8 o'clock. When I got there there were two couples already there. Jane Benkosky, Burt Mertell and Jane's boy friend were there. Mr. Hays arrived about 9:30. We danced and had some beer. About 11 o'clock Jane announced that she had to go home and Cliff asked Mr. Hays to drive Jane and her boy friend home. I saw them leave. When he returned Burt and his lady friend and Mr. Hays and I were there. Burt and his girl friend left and I asked to be taken home. Cliff drove the car and Mr. Hays sat in the back seat. I was not solicited on the occasion in question to buy an automobile, and I did not hear Mr. Hays solicit any one else to buy an automobile or talk business of any kind. I heard of Mr. Steinbruegge through Burt. He had worked for Steinbruegge at one time. After the accident we took Mr. Waters over to the drug store and from there to the hospital. Mr. Young was driving at the time of the accident, and Mr. Hays drove after that."

Defendant William Steinbruegge testified for defendants, as follows:

"On December 2, 1933, my place of business was at 6514 West Florissant. I was the distributor for the Dodge and Plymouth automobiles. I was not distributor for the Chevrolet. At that time I had in my general employ several salesmen. One of them was Joseph Hays. In conducting my automobile business I had a salesroom. There were certain nights in the week when Mr. Hays would take the floor of the salesroom. He was there to take care of customers while the rest of the men were not there. The salesroom was open from 8 in the morning until 9 at night. On Saturday evening, December 1, 1933, Mr. Hays was on the floor. I was in the salesroom until seven o'clock. I gave Mr. Hays no instructions whatever as to what he should do after nine o'clock. He was not after nine o'clock sent out by me on any mission, errand, or business of any kind. About two weeks before December 1st, I provided Mr. Hays with a machine, a 1932 Chevrolet sedan. I got that machine in some trade. He used that car. He was instructed to use it to go back and forth to his home and for no other reason. On the night of December 1st, I did not send Mr. Hays out to the home of Mr. Young at 4630 Delmar. I did not tell him to go there for the purpose of interviewing any one connected with an automobile deal or otherwise. I have been operating the West Florissant Motor Sales for eighteen years. In making sales of Dodge and Plymouth automobiles I took in trades as part payments on the new cars, old cars of various types, and this Chevrolet that was involved in this accident was one of those automobiles that had been traded in under those circumstances, and that automobile in conjunction with other automobiles I have taken in trade I have tried to dispose of. Whenever I or any of my salesmen get any kind of a prospect with respect to new automobiles only, we go out and make contacts and take people out in the automobile. As to the old car, the customer wants to see whether that old car runs before he buys it. On the traded in cars, customers want to take rides in them and see how they ride before they buy them. It is just according to the way you run your business. We don't demonstrate traded in cars by going out and looking for prospective buyers....