Waters v. Hays

• Decision Date: 28 June 1939
• Docket Number: No. 23944.,23944.
• Citation: 130 S.W.2d 220
• Parties: WATERS v. HAYS et al.
• Court: Missouri Court of Appeals

130 S.W.2d 220

WATERS v. HAYS et al.

No. 23944.

St. Louis Court of Appeals. Missouri.

June 28, 1939.

As Modified on Denial of Rehearing July 11, 1939.

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

"Not to be reported in State Reports."

Action by Raymond G. Waters against Joseph Hays and William Steinbruegge, doing business as the West Florissant Motor Sales for injuries sustained by the plaintiff when struck by an automobile driven by Joseph Hays and owned by William Steinbruegge. From a judgment for the plaintiff, the defendant Steinbruegge appeals. A decision of the St. Louis Court of Appeals for appealing defendant, 118 S.W.2d 39, was quashed by the Supreme Court, 126 S.W.2d 164.

Judgment of the Circuit Court affirmed in conformity with mandate of the Supreme Court.

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 a Chevrolet sedan 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 three thousand dollars, and judgment was given accordingly. Defendant Steinbruegge appeals.

The evidence shows that on the morning of December 2, 1933, 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 driving 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 was standing in a safety zone just north of the intersection of Grand and Laclede.

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.

This case is now under its third submission here. Upon the first submission error was assigned by appellant for the refusal of his instruction in the nature of a demurrer to the evidence. The assignment was put on the ground that there was 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. See Waters v. Hays, Mo.App., 103 S.W.2d 498.

Upon the first submission we stated what we erroneously supposed was the law, as follows: "It is the law that when plaintiff proved appellant's ownership of this Chevrolet sedan, and that it was being driven by a regular employee of the appellant, the presumption arose that said employee was driving it in the service of the appellant. This 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 car in the service of the appellant." See Waters v. Hays, Mo.App., 103 S.W.2d 498, l.c. 503.

And we then said: "We do not think the testimony adduced by the appellant was of such a character as to destroy such presumption."

After discussing the testimony at some length we ruled as follows: "Under all the facts and circumstances in this case, we think the issue, as to whether or not Hays at the time of the accident was about his master's business, was for the jury."

We accordingly affirmed the judgment of the court below.

Our Supreme Court, in State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802, 804, on certiorari, held our opinion in conflict with Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, Ann.Cas.1918D, 1123, and quashed our record and judgment, as follows:

"The rule announced in the Guthrie Case on the question is set forth in the preceding paragraph. Of course, the words `upon the appearance in evidence of the facts themselves' mean that the presumption would take flight upon the appearance of substantial evidence tending to show the facts. Furthermore, in so ruling, we construed the words `positive proof of facts to the contrary' and `positive evidence to the contrary,' as used in the quotation from Berry on Law of Automobiles, to mean substantial evidence tending to show facts to the contrary.

"In the instant case plaintiff introduced substantial evidence tending to show that Steinbruegge was the owner of the automobile that struck plaintiff; that defendant Hays was in the general employ of Steinbruegge; and that at the time the automobile struck plaintiff, Hays was driving the same. From this testimony, a presumption arose that at said time Hays was acting within the scope of his employment.

"Defendant then introduced substantial evidence tending to show that Hays was not at said time acting within the scope of his employment. Thereupon, the presumption disappeared. Of course, the evidence introduced by plaintiff, from which the presumption arose, did not disappear. On the contrary, the fixed rule with reference to the evidence for consideration on demurrer must be followed.

"In ruling the assignment on the demurrer, the Court of Appeals incorrectly stated the rule as follows:

"`It is the law that when plaintiff proved appellant's ownership of this Chevrolet sedan, and that it was being driven by a regular employee of the appellant, the presumption arose that said employee was driving it in the service of the appellant. This 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 car in the service of the appellant.'

"After thus stating the rule, said court incorrectly ruled that the evidence introduced by defendant did not destroy the presumption which arose on the evidence introduced by plaintiff.

"In the Guthrie Case we did not rule that `unequivocal' and `unimpeached' testimony on the part of defendant was necessary to destroy the presumption. We ruled that upon the appearance of substantial evidence tending to show the facts, the presumption disappeared. In said case defendant's evidence destroyed the presumption. Plaintiff introduced no evidence in rebuttal contrary to defendant's evidence. In ruling the demurrer at the close of the evidence, we followed the fixed rule with reference to the evidence for consideration on demurrer, and found no substantial evidence tending to show that the employee, at the time of the injury to plaintiff in said case, was acting within the scope of his employment.

"The above-stated rule announced by the Court of Appeals and its ruling that the presumption did not disappear on the introduction of defendant's evidence is in conflict with the ruling of this court in the Guthrie Case. It follows that its record and judgment in the instant case should be quashed. It is so ordered."

The case was accordingly again argued and submitted here. Upon such submission we ruled as follows: "Respondent now contends that appellant's instruction in the nature of a demurrer to the evidence was properly refused because there was substantial evidence, as distinguished from a presumption, that Hays was driving appellant's automobile in the service of appellant at the time it struck and injured respondent. In support of this contention respondent particularly stresses and relies on the fact that the automobile carried and displayed dealer's license plates issued to appellan...