Waters v. Hays

• Decision Date: 20 June 1938
• Docket Number: No. 23944.,23944.
• Citation: 118 S.W.2d 39
• Court: Missouri Court of Appeals
• Parties: WATERS v. HAYS et al.<SMALL><SUP>*</SUP></SMALL>

118 S.W.2d 39

WATERS v. HAYS et al.^*

No. 23944.

St. Louis Court of Appeals. Missouri.

June 20, 1938.

As Modified on Denial of Rehearing July 1, 1938.

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

"Not to be published in State Reports."

Action by Raymond C. Waters against Joseph Hays and William Steinbruegge, doing business as the West Florissant Motor Sales, for injuries sustained in an automobile collision. From an adverse judgment, the defendant Steinbruegge appeals. A decision of the St. Louis Court of Appeals affirming the judgment for the plaintiff, 103 S.W.2d 498, was quashed by the Supreme Court, 115 S.W.2d 802.

Judgment for appealing defendant in conformance with Supreme Court's opinion.

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 was at the time in the general employ of defendant Steinbruegge as an automobile salesman. 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.

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.

Upon a former submission this court affirmed the judgment of the circuit court. Waters v. Hays, 103 S.W.2d 498. Thereupon, our Supreme Court, in State ex rel. Steinbruegge v. Hostetter, 115 S.W.2d 802, on certiorari, quashed the record and judgment of this court as in conflict with Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, Ann.Cas.1918D, 1123.

In affirming the judgment of the circuit court this court, after setting out the testimony in detail, said (page 503):

"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. Byrnes v. Poplar Bluff Printing Co., Mo.Sup., 74 S.W. 2d 20; Staley v. Lawler, 224 Mo.App. 884, 27 S.W.2d 1039; Halsey v. Metz, Mo.App., 93 S.W.2d 41. We do not think the testimony adduced by the appellant was of such a character as to destroy such presumption. It is true that defendant Hays testified that he was not engaged in the appellant's business in driving the sedan at the time of the accident, but his testimony was impeached by the testimony of Frank Jones. It is true also that defendant Hays testified that he was not driving the car at the time of the accident, but the plaintiff, the police officer, and Mr. Young testified, without objection, that he stated to the police officer immediately after the accident that he was driving the car. The undisputed testimony is that the car he was driving was a used car which was for sale. He testified that, while he had not taken this car out to demonstrate it, he had taken out other used cars for that purpose, and his testimony clearly shows that it was a part of his duties to sell and demonstrate used cars as well as new cars. It is true, too, that appellant testified that he did not send Hays out after 9 o'clock on the night of the accident on any mission or business of the appellant, and that he did not tell Hays to go out to Young's home for the purpose of interviewing any one in connection with the sale of an automobile or otherwise, but he did not testify that Hays had no authority to go out on appellant's business of selling automobiles if he desired to do so. Appellant also testified that Hays had authority to use the automobile only for the purpose of going back and forth to and from his home, and that his salesmen did not take used automobiles out to demonstrate them to prospective customers. But this testimony of the appellant is directly contradicted by that of defendant Hays to the effect that he had authority to take, and had in fact taken, used cars out to demonstrate them to prospective purchasers. Mr. Young also testified that he was driving the car at the time of the accident, but he did not know why he did not tell the officer after the accident that he was driving the car though he heard Hays tell the officer that he was driving the car.

"It is significant that the car was at the time of the accident carrying dealer's license plates issued to appellant, which was unlawful unless the car was being used at the time in appellant's business. See section 7764, R.S.1929 (Mo.St.Ann. § 7764, p. 5186). * * *

"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."

Our Supreme Court in quashing the record and judgment of this court held that the ruling of this court was in conflict with the ruling in the Guthrie Case in that this court ruled that the presumption arising from proof that appellant owned the Chevrolet sedan and that it was being driven by a regular employee of appellant 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.

The court quoted at some length from the opinion in the Guthrie Case, including the familiar passage from Berry on the Law of Automobiles, 2d Ed., § 615, p. 694, as follows (115 S.W.2d page 803):

"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...