*1 302 203 MISSOURI APPEAL REPORTS,

Kilroy Agency v. Crane Co. (section contract was within the statute of frauds 1909). 2784, Revised Statutes As. we find contract necessary it is all, to determine this. But if the again goes say case trial, well to that as de is pleaded objec fendant neither made nor statute testimony tion the introduction of offered and supposed change, to relate to the do think we before us, is even material. if counsel Learned respondent offering claims that demurrer close of case he court that stated grounds one of the for that statute was involved. The abstract that he did frauds shows way proper this. But we do not think that is the raise the issue of the statute. It should be raised objection pleading proper by by either or when the relating [Schmidt the contract offered. evidence is App. Rozier, 306, 791; v. 121 98 W. Gifford v. Mo. S. App. 53.] Mo. l. Williams, 34, c. 173 S. W. way caution in the event We notice this had. trial new judgment affirmed and the circuit court proceedings as further cause remanded for such opinion. Allen, proper may in accordance (cid:127) concurs; in result. J., Becker, J., Respondent, MARIA KILROY, CHARLES L. Corporation, CRANE AGENCY COMPANY, Appellant. Appeals. Opinion January Rehearng Court Filed Louis 1920.

St. February 24, Denied 1920. Negligence: 1. MASTER AND SERVANT: Automobile: Lia- Owner’s bility Negligence: Acting for Chauffeur’s Chauffeur Must be With- against Scope Employment. an In action the owner negligence etc., chauffeur, there based must be some evidence of the fact the chauffeur duty performance aof the accident was owner, which a must at least facts he established for the *2 acting that the chauffeur was inference can be reasonable drawn employ- apparent scope his time the at the within actual or of. superior. respondeat into action the rule of ment in order to call - of Proof. Proof -: : -: -: Rule as to Burden 2. proof by employment of the chauffeur defendant the presumption the a defendant owned the automobile raised employ- scope acting the time within the of his chauffeur at upon prima-facie which, case, ment a however vanishes and makes contrary, and, appearance the evidence real facts to the duty appear by evidence, these facts the is then cast defendant’s plaintiff produce the fact that the to some evidence of chauffeur actually engaged upon of the accident the business of the defendant. Inferences: One Inference Cannot on An- 3. EVIDENCE: be Based other. An be inference must facts and be drawn from cannot based on another inference. Presumptions: Presumption One Cannot on An- --: be Based 4. presumption Likewise, presumption, other. a cannot based on a but must arise from facts. Negligence: MASTER AND SERVANT: Not 5. Automobiles: Owner Negligence Engaged for Liable oil Chauffeur Personal Errand. an automobile Where accident occurred the chauffeur driving upon time was not the automobile business of his engaged upon personal purely master but was a errand pleasure, negligence own the master cannot be liable for the held of the servant. -: -: 6. -: Owner’s Acts Insufficient to Constitute

Ratification of Chauffeur’s Unauthorized an Act. The failure of immediately discharge causing owner its chauffeur operation injury negligent of the automobile at a time driving upon when was not master, the automobile the business of his suggestion a the chauffeur consult etc., regarded attorneys, any .being owner’s cannot be evidence the fact owner ratified the conduct of the chauffeur indulging joy-ride. Rehearing.

On -: -: -: Evidence: Chauffeur’s Unauthorized Use goes of Automobile: Owner Not Liable. Where the evidence having chauffeur, further than show that the after the automo- taught by bile turned over to him after he been demon- it, evenings practicing strator to run take it out-in the or learning it, etc., appears to run and it nowhere the owner REPORTS, 203 MISSOURI APPEAL Kilroy v. duty fact, knew or that it of such chauffeur evenings employer’s take machine out in when not learning purpose run business for it other cannot be said that chauffeur on the occasion

^purpose, engaged of the accident was in his master’s when the plain pleasure evidence that he was then in his own taking city. ride about Support Charge 8. -: -: -: -: Evidence Fails to Employed Owner Unskilled Chauffeur. An auaomobile owner who employed accompany days a demonstrator for five chauffeur operate discharge so as to teach him to the automobile in of his duties, guilty negligence placing the automobile inexperienced in the hands its who was and unskilled. Appeal City Circuit Court of the of St. Louis. Judge.

—Hon. Thomas L. Anderson, *3 Reversed. Hayden Hayden &

Anderson, Gilbert and M. U. appellant. for

(1) pres- of an automobile owner who is damages ent at the time an accident not liable for is alleged negligent by operation by caused its his em- ployee employee unless, time, is performance duty pertaining of some to his acting employment scope within is of his employment. Thresher Slater v. N. Co., 107 133, W. y. S.) (N. 598; R. 5 L. A. Lotz 66 Hanlon, 525, Atl. (N. 10 L. R. A. Danforth S.) v. 75 N. 202; Fisher, (N. S.) 21 L. R. A. Ill, 535, 71 Atl. H. 93; Steffen McNaughton, (N. S.) 124 L. v. 26 R. A. 1016, N. W. Hartly Miller, v. 165 Mich. 382; 33 L. A. 115, R. Tyler (N. S.) Stephan, Reilly 790; 81; v. 174 S. W. 586, 214 N. 108 E. L. R. A. Connable, 853, v. Y. N. Symington Sipes, 1916A, 954; 134, v. 88 Atl. 47 R. A. L. (cid:127) Healy S.) (N. Cockrill, 202 S. R. 663; 229, v. W. L. 19181), 155; Buckmobile 94 N. Co., A. Clark Y. v. Reynolds Supp. Iowa, v. 127 103 771; Buck, N. 60, App. Mo. 946; 164 Holmes, Whimster v. 177 130, W. 1918. 305 OCTOBER TERM, v. 236; S. W. Guthrie Holmes, v. 272 198 215, Mo. S. App. W. Harry, Glassman 854; v. 304, 182 Mo. 170 Hayes Hogan, 403; S. v. W. 273 Mo. 200 1, S. W. Company, 286; v. 438, Whiteaker 252 160 Railroad Mo. (2) 1009; W. S. 1068. Bullene,.200 Bolman v. S. W. In order to render the owner of automobile an liable negligent operation its his it must servant, appear serving employer latter was respect very time of the accident and trans- Hartly action out of it arose. which Miller 165 v. S.) (N. Symington Sipes, R. Mich. 115, 33 L. A. 81; v. S.) (N. Heály Atl. L. 134, 663; 88 R. A. 47 v. Cockrill, (3) A. 202, W., 229, S. R. 155. If driver 1918D, L. employer’s knowledge takes without using employer, and while it for consent purpose personal purely injury causes himself, an employer party, liable. Slater v. to a third (N. S.) 598; (N. S.) 202; L. R. A. Thresher N. 5 107 W. Co., 133, Hanlon, Atl. 10 R. A. 525, Lotz v. 66 L. McNaughton, L. R. 124 26 A. N. W. 1016,

Steffen v. (N. S.) Healy R. S. L. 382; Cockrill, v. W. 202 94 N. Y. v. Buckmobile 115; Co., 1918D, A. Clark Supp. Mo. S. 771; Holmes, Guthrie v. (4) App. Harry, 182 Mo. 854; Glassman W. using em- automobile of his an while If ployer or at temporarily service, abandons tempore pro acting himself *4 individual using own his the automobile is employer liable for pleasure, is not purposes or Hanlon, 66 damage Lotz any time. v. caused Tyler Stephan, S.) (N. 202; v. L. R. Atl. 10 A. 525, Y. Resilly Connable, 586, 214 N. 790; v. W. 174 S. Symington Sipes, 88 v. Atl. 954; 1916A, R. A. L. S.) Holmes, v. (N. Guthrie 663; A. R. 47 L. 134, Harry, v. 854; Glassman W. 198 S. 215, 272 Mo. 304, 403; Slater v. Thresher App. S. W. 170 182 Mo. proof (5) of S.) (N. 598. While 5 L. R. A. Co., person driv- ownership an automobile of of owner ing an is time, certain it, at a 306 203 MISSOURI APPEAL REPORTS,

Kilroy v. Crane prima are sufficient to establish that the driver facie acting scope employment within the his presumption disappears time, face sub- undisputed testimony or stantial driver such scope acting employment within the at such his v. time. 220 N. Y. 116 N. E. Pardee, 431, 78; Potts (N. J.); Hall, Cronecker 105 213 v. Atl. v. Balfe, Rose (N. S.) 481; 223 5 N. Y. Lotz v. L. R. A. Hanlon, 215; 202; Holmes, Guthrie 272 v. Mo. Glassman v. App. (6) Harry, An 182 Mo. 304. automobile dangerous instrumentality inherently so render damages permits owner liable in if he its by be used employee, though may even the latter reck- Danforth 75 driver. v. N. H. 21 Fisher, Ill, less L. (N. S.) Hoge, A. 93; Jones v. 92 14 R. Pac. (N. S.) Cunningham A. v. 216; R. 111 L. Castle, Supp. App. Compton, 1057; N. Hall Mo. 130 Y. v. App. Daily 681; Maxwell, v. 152 Mo.' 415, 427-429: Huddy on Amorous, v. S. E. Lewis 59 Automobile 338; p. (2 (7) Ed.), p. Cyc., 33; 28 25. fact' that appellant’s may have taken McNamara out prior after business occasion in hours on violation of appellant charge is not sufficient to his instructions again duty assuming that he would violate with the extratordinary precau- exercise those orders night, against taking out after machine tions occasion, another McNamara had on that, and evidence night out after inadmissible to the automobile part appellant. negligence establish pp. 6681- Servant, & on Master section Labatt A. Ill, v. N. H. 21 L. R. Fisher, 6690; Danforth Supp. (N. S.) 94 N. Y. Co., Buckmobile 93; v. Clark the driver (8) statements acts Evidence of performed accident, after an made or automobile, of an they do not form the reason gestae. inadmissible prejudicial to the It was part the res anything appellant evidence admit rights of any time arrest after his or said done Stinger Metz Co., following accident. *5 1918. 307 Whitney City, 1032; Pac. v. Siouz 154 497' N. W. Ryder, Gouin v. 94 Atl. Railroad Co. 0’Brier 670; v. 556; 119 ,v. U. S. 99; Railroad Mo. Adams 74 Co., 482; App. Pannell v. 160 Mo. 142 Allen, 714, S. W. (cid:127) King App. v. Insurance Co., 163, 172-3; 105 Mo. Stockyards App. Carson v. Mo. 151 Co., 167 443, (9) give jury S. It W. 752. error is instruction which than the is broader averments petition or than the evidence assumes that or which negligent respect. the defendant is v. Hall Coal & Coke 260 Co., 927; 168 Mo. S. Green- W. Foundry Mulloy stein 1179; v. 178 W. v. Co., S. Painting 214 S. McDonnell Taxicab Co., 405; W. v. App. Co., 168 Mo. 151 767., S. W. respondent.

Henry A. Baker for employer (1) negligent is liable for acts employee performed employ- of his in the course of his Laundry ment. Walker 166 Vanneman v. Mo. Co., App. App. 685; Co., Fellhauer v. Railroad 191 Mo. App. 137; rigel v. Heli- 105; Slothower 191 Mo. Clark, Harvey, App. v. Dunham & Etc., 192 Mo. (2) Mc- '43; Co., Railroad 55 214. v. Mo. Perkins employee appellant company, Namara, acting within the accident, evidence, by scope authority. an ex- This determined of his are amination of the and no authorities evidence, previous (3) Both establish needed statement. subse- of an authorizations of the acts may quent shrown subse- ratification thereof Oglesby parties. quent v. Mo. Smith, 38 conduct of App. Mo. Title 214; 55 Co., Railroad 67; v. Perkins App. Surety Drenon, 198; Mo. Guaranty 181 & Co. v. App. Beagles 306; Plummer 135 Mo. Robertson, v. (4) App. Knight, An automobile 156 Mo. run know does not how one who hands skillful driver, who of one hands it, necessary dangerous are machine. No authorities ais REPORTS, MISSOURI APPEAL *6 Kilroy Agency Co. support using proposition. (5)

to “Persons dangerous agencies required are to use the utmost care prevent injuries adopt every to and to known safe- guard, places and one who another or hands person dangerous by authorizes use aof another instrument or article under that he circumstances such produce likely injury reason has is know is consequences.” Cyc. liable for & natural Pro- of Law App. 460; 535; Palm 111. v. 117 cedure, Ivorson, Eyermann, App. (6) 7 592. The instructions Mo. respondent for there were not too was a borad, as every good foundation in the evidence for fact which jury submitted to find. examination An point. (7) Questions evidence establishes this negligence negligence primarily contributory are and of jury only questions (cid:127)for the of law where become dispute there is one inference and but evidence, reasonably facts them; can drawn where the be ques- disputed credibility or are is in of witnesses doubt are in- or fact left in or there tion material proven, ques- thme from the drawn facts ferences tions contributory negligence negligence are and of App. jury. Mo. 95; 152 Smith, for Murrel v. App. Brewing Vaughn Lemp 48; Mo. Co., 152 v. ¥m. J. App. Railroad Munro v. Oborn v. 141 Nelson, Mo. 428; Shamp App. Mo. 142 710; Lambert, 155 Co., Mo. Springfield App. Co., Traction Turk v. 567; App. 335; Co., Mo. Railroad Larrance v. Pac. Mo. operating person owning, (8) Any App. 141 Mo. 338. running along upon, controlling on, automobile an or high- alleys, public streets, avenues, roads, or cross ways shall use places travel, much used or person very would highest degree careful that a care prevent circumstances, similar like or use under injury persons traveling over, or on, to public death or alleys, avenues, roads, streets, such or across etc. places Laws travel, used highways much p. sec. 9. 330, Missouri, 1911, Kilroy v. Crane night

BIGGS, C. At on the about 10 o’clock August Kilroy, police Martin mounted City crossing officer of the of St. Louis, while what Kingshighway through- known as public Viaduct city, by in said fare by was run owned into operated by the defendant and Paul its McNamara. The J. horse the motor was struck coming upon car it from it to which caused rear, be thrown account thereof forward pavement hurled from his saddle to the so and was injured severely thereof that as a result died day. following

The plaintiff the widow of Martin and Kilroy alleged Avrongful death, specifying sues in the negligent respects McNamara and on was several defendant and employed occasion mentioned by was operating the automobile owned the defendant by was the time within and of acting scope Avas the as employee. such authority against McNamara and suit filed both Company, Agency but service was

Charles L. Crane pending the suit McNamara, not obtained on and against him.- no further action taken died and jury judgment in a and a After the verdict of plaintiff’s defendant the sum of $4750, favor in appeal. perfected duly its the time -the accident

Whether at of questions upon the vital one his master’s business that there was contends in case. The defendant jury, that the evidence failed the reason case for acting de- for the McNamara was to establish peremtory consequently its and time, fendant at given. have been in favor should to find its instruction question neces- be will to determine In order question of McNamara’s sary evidence on to sift the there is authority whether or determine and plaintiff tends which behalf evidence in substantial of the accident time at the that McNamara to show performance in a matter of fact, as was, REPORTS, 203 MISSOURI APPEAL duty necessary for the defendant. It is that there be evidence such or at least fact, some must be facts established from which reasonable inference can acting drawn that McNamara was at the time within apparent scope the actual employment of his respondeat superior. order to call into action the rule of the rule Under down laid Guthrie v. Holmes, proof Mo. c. 236-237,198 S. l. W. employment by of McNamara the defendant and proof owned defendant the automobile raised presumption acting that McNamara at time scope employment prima of his within and makes a upon appear facie which case, however, vanishes contrary, ance evidence of real facts and appear by duty these facts evidence the defendant’s plaintiff produce is then cast some evidence actually engaged the fact that McNamara was business of the defendant. plaintiff’s The facts disclosed evidence on this question are these: The defendant is an insurance company, McNamara was acted its inspector adjuster and also solicitor company. regular He for the had no office hours evening. would sometimes work Defendant him a Ford runabout furnished order to aid *8 performance After him in his duties. deposition employ defendant, left was taken plaintiff Chicago and offered evi- defendant, McNamara. the cross-examination of testi- dence His evening mony on the duties as to and movements August as follows: 18th, company of the defendant on was an

I August, that I 1913, After taken off 18th, was adjusting salary put a on fee basis, losses' a and enough January, in it me, was not for and and there resigned. After the accident I arrested was I Vice-president Bennett, trial. Mr. a criminal and had company, and Scott Mr. Guthrie Mr. of defendant police At the station. station at .the me came to see Agency Kilroy v. Crane package I over to turned them papers, before they left the they I station released on was bond and up were returned to me. Bennett think Mr. I came to see me to see he what could do me. for He knew about discharged immediately and accident, I was not afte operate that. I not, and'run the automobile however, afterward.

The Agency Company Crane tornado, fire, writes accident and inspector health insurance. I acted as adjuster also as and solicited all new business in these different engaged. company of insurance in which kinds regular

I had office Sometimes hours. day I would work and sometimes would I work evening. night day looking Whether or I out was new some customer or some business. The new night operating machine that was I 18th August belonged Company. to the Crane Nothing my being any par was about limited said running ticular time for automobile. don’t know I whether Crane, Mr. knew that I had President, running never run an automobile before this one. anything I don’t think president said about it. Mr. Crane company. of the No other officer or director company me whether ever asked I bad run an automobile before. automobile was turned over thing being to me to whether without or not I said knowledge ability run it. or sufficient to or had skill thought me if I learn to I could Mr. asked doing thought run told Besides and I him I I could. it, my my regular run the work it was business learn during my run it work. automobile and to It was my at first to learn run machine. The discharged manager’s company brother purchased making me to use in adjustments company making for the collections inspections. Nothing about whether or not said prospects prospective customers should I in entertain part my work That before the automobile. *9 I the accident had been I the automobile. Before had REPORTS, MISSOURI APPEAL Kilroy v. Crane running evenings, automobile the I don’t night company it think the on of about until knew August they had an after- 14th, I when which company that accident did wards knew about. After nights. running forbid me from not automobile at nothing1 There was said me about it at all. Mr. Crane out none other officers said town, was (cid:127) anything about it. learning to started run this machine I I

When by Company’s instructed one of demon- Ford helped days. After He me five that strators. four began myself. run I automobile I ran When myself I I State license. drove had delivered whenever the license was the whole August. day that not run After I did until 14th evening again August 18th. I the automobile until operating days practice possibly'ten the machine. had learning that to run automobile. I was was not still I up. say practicing that I do not mean had I not days. skilled driver those few become a August evening Mr. Q. McNamara, Now, you attending to some had work been out 1913,, you company to the A. had been not? INo, you garage, that been not out think. Had before Q. I evening? company A. had I come work for mean than Q. is all. later that? office, I from the prior- you made a to this, Haven’t statement Q. No. A. that company you out on business only going I night? The on was A. business inquired stopped place at a I home, towards personal That business insurance. about risk though. evening. out that I Bernard O’Neil did

I also had any him. kind with I discuss him, just evening, go met I him. to see evening August another accident. I had 14th In gate of the Frisco or cross-bar Railroad. ran into I gate on the an hour. going miles four or five I right going when I was the street side south hand *10 OCTOBER TERM, Kilroy Crane broken; the

was mechanism and it down broken gate np, on the and left side the street was of hand light right light with gate a red on it, bnt no on the on the being hand side of the street down. It dark which was very judged there conld I not see well and from one I gate being up up of did both them were not I got right top see it until we on of it. After that accident n August automobile out until 14th did not have the I repairs. August, up for On the 18th of it was laid as evening me in the the accident I had with of n not business machine did have Hudson, Columbus him from him never relations had with solicited any insurance. testified:

On Re-direct Mr. Examination night Company the After left the office the Crane of I I called man on whom of this the first accident any get insurance trying Burns. to I T. E. spoke just to me about sister-in-law from him; got name. did wanting her I some and I insurance, anything. He arrangement any him or not make go her, see to to and said me about his sister-in-law- told neyer my part as duties her. It was but I saw go Agency Company see to to of the I recall whether I don’t matter. about this Mr. Burns any any subject kind with of insurance discussed Burns that parties left after I Mr. whom I saw night, hardly so. think Ibut n any after you work Q. Were night 18th spoke you Burns on Mr. to happened con- accident August, until this 1913, and your performance duties any way with the nected Company? agent employed the Crane special as any performance you in the Q. No. A. Were agent special of that employment your duties happened? A. No. company ago that earlier you a while believe stated Q. I taking machine where evening you intended kept? A. 1579 the machine kept you it. Where was changed you itwas When Q. avenue. Grove Tower REPORTS, 203 MISSOURI APPEAL Agency Co. plan your put in? the machine concluded suppose plans. said, A. don’t As I Well I I had one of those asked me take him out for fellows nothing little Q. I did not have to do— When ride, you you Mr. O’Neil take home so? asked him did you you A. Yes. ride Q. him before And took for a thing you? him took A. the same Q. Yes. And home, you occurred when take him Mr. Hudson asked *11 a ride? Louis Q. Yes. Crane A. Mr. in St. Charles Was night August 1913? A. No. company

None that I officers knew at the time accident. had machine out special performance your

Q. as In the duties you agent employ Company i nthe of the Crane or did you inspecting adjusting any not in connection do with their accident insurance? A. No. Q. or health yon any if accident or health insurance And you solicited paid that? A. were commission for A an extra you yes. required by the terms of Q. commission Were place any policies you employment your ob- that Agency by your soliciting with Crane tained Company, own place anywhere? you it free to or were nothing although there was understood, A. It was yet understood we it would about was it, said place you that at the time were Q. there. You stated days you had some afterwards or a arrested few they you if were papers; Baker Mr. asked I believe company papers that were turned insurance of the not got you them back. and later on one over some They papers? memoranda were A. those were What They inspect, go Q. and losses. where I was you papers, obtained from the words, in Avere other yes. my Company? Agency work, A. For Crane company? A. No, insurance from Q. And might policy there. have had recall. I don’t I over to Ime was turned machine was After that apart my work putting all of the time I could learning learning it while I it. to run I through working working. and when I was IWhile Kilroy v. Crane kept my up. only practiced work I I evenings.

I looked it over further Mr. testified that Bennett came to he him when he arrested was attorney see told employ him that he to look should Thompson, after his interests referred him to Mr. represented Ryan Thompson, of the firm of & who Ryan Thompson attorneys him. also for the Agency Company, they and that never sent him a bill.

Columbus automobile with Hudson, who was plain- McNamara at the time of the accident, testified case in tiff’s chief follows: v I reside at 1532 Tower Grove Avenue. On day August, 18th lived at I 1608 Tower Grove neighborhood. occupation Avenue in the My same tending the time was bar. Paul I McNamara. knew J. place working quite He came into the where I day August, possession often. theOn he 18th kept yards of an automobile ain shed at which Company. day Robinson Coal On *12 happened to McNamara saw Paul I evening. about him in o’clock in the went out I guess the automobile after that. it was about when I 7:30 place. passenger we left automo- a It was two Ford bile. Tower We started from and Blaine Avenue. Grove We North on Tower and then over to the went Grove Bridge park Natural then back and and Road park through Kingshighway and back over Kingshighway. operated Mr. McNamara the car all stopped place way. way. on He we The first stopped Clayton Tower I was at Grove road believe and place That was a saloon. hadWe a drink there and got again. went on out and in machine He did anything do else that of. I don’t know I whether know anybody. we see went there to stopped Bridge at next Natural We and Vande- ventér. There a saloon and there something went in believe I drink he took I had REPORTS, 203 MISSOURI APPEAL Kilroy v. Crane just or other. don’t he had. I remember what now anything didn’t of. don’t do else that I know I He anybody. know whether he went there see "We stopped next aat saloon V'andeventer and We Olive. just got again. He went came drink and ont in, We stopped Kingshighway next and V’andeventer. We got a party. drink he asked for some don’t know I he Q. who just was. And what else did lie A. do? He party, gentleman

asked for this behind evening bar told him not been .in that he had and did whether or not. Q. know he would Now, party asking anything for that did he do else? A. papers Well, he some in his hand; I don’t know they get papers? he Q. what were. those Where did pocket. Q. A. G-ot them out his coat Took inside pocket? them inside out of A. Yes, Q. coat sir. Yes, for a man? A. sir. Q. And asked Then what Kingshigh- he do that? A. Oh, did over after we went way we— THE and there is where viaduct, onto anything say he there? COURT: Was man Did he the man asked for. the man? A. didn’t see he No, you going after A. I that? where were Q. State say any place. heard him Never didn’t— certain know he place going; don’t where he I certain place. leaving last But where going Q. after Kingshigh- actually go? he over went Well, A. way he hit the viaduct there Mr. onto Kilroy’s horse. this witness testified: Q.

On cross-examination evening you your finished duties, when And this you take ride in you Mr. McNamara wanted A. And Q. Yes. while and he did so? taking you ride accident occurred? for this he you not connected At that Q. sir. Yes, A. *13 Agency way the Charles Crane Com- any L. in pany employed you? Not for Q. No, A. sir. you company? know that Q. And No, sir. A. that company? Why knew that he I a A. there such yes Q. all. You knew working that sir, for them, you that is sir, A. Yes, he told before? from what that Kilroy v. Crane you.

all. any Q. Did have That Q. insurance? A. sir. No, through through agency, written defend- company? ant sir. No, A. plaintiff

This was all the evidence offered question. carefully have read the evidence We by defendant submitted any to determine whether order strengthens plaintiff’s contrary of it case. theOn clearly it seems to establish the defense. president company,

Mr. Crane, the of defendant purchased caused the automobile to McNamara, for gave and him instructions. conversation with In purchase McNamara at the time to he said him: purchased you “Now this machine for Mac, busi- purposes. you using any If hear of ness I at any any purpose, joyriding, you other be dis- will charged. going distinctly want am I understood. I you away using now I don’t machine for want you any purpose you other that. If after than want, your have to run take it, to wife out learned you Sunday I afternoon can do outside so, you don’t use it under other want to circum- stances.”

McNamara testified for defendant that he obtained the automobile on the afternoon of the accident from repair shop, down and went town the office purpose Company about 5:30 o’clock for following to do the finding out what work he was company day; office he remained saying a half an hour left the automobile, about having anyone nothing machine; about that he Course avenue to see Mr. first out 4207 Race went years; he known-for several that he whom had Burns, then went to there about remained minutes and five get some that be- Tower avenue tools 1553 longed Grove which was at residence of automobile, possibly Medley, there that he remained Mathew leaving three there little after 7 minutes, two or Medley’s o’clock; that he left Mr. he went when house to a saloon at Tower Grove avenues, Blaine Medley; he found remained the saloon Mr. *14 APPEAL 203 MISSOUEI EEPOETS, Agency

Kilroy Crane v. Co. about 10 or 15 minutes then and he was left, and as leaving he met friend Bernard his O’Neil, who he invited into the and machine took towards home on Blaine up avenue. O’Neil him Mr. asked take him to Grand which he then avenue, and him did, home; took back he again Medley that he then went back to Mr. see and stopped in saloon at Tower and Blaine same Grove purpose; that that he avenues remained at this sa- loon about two or three minutes on the second visit and leaving and then he met left, as Hudson, Columbus bartender; whom known and that he had who was give him a "hedid; Hudson asked him to which that ride, north to the the two of them drove Fair Park Grounds they city; stopped north end of that at Natural get Bridge gasoline; avenue to Vandeventer some gasoline they arrived at station about 9:15; that gasoline they getting the went that after on south Grand Washington, west avenue or Vendeventer; to Delmar to Tower south on Vandeventer Grove thence avenue, Tower Tower south on Grove avenue to Grove Park part city; through thence west in the southern park Kingshighway boulevard then turned Kingshighway and over the on went viaduct north happened. further testified Mr. The witness Crane had gotten told him that the reason he did small car fact there account of on was to so was any joy-riding; joy-riding, want he called it. nowhere testified while

McNamara the to the got any papers pertaining day he officeon company’s pa- It shown nowhere business. what pocket from pers saloon took McNamara Kingshighway avenue, and it is not and Vandeventer inquired anywhere was he the man about who shown about business of whether was saloon, at the appear day that the next company. It does the police turned over Mr. Bennett McNamara station shortly papers, thereafter returned which certain says these were memo- McNamara, and slips paper randa on showing where he make was to inspections, may papers among there been have policy.

Respondent contends this incident papers by the as shown can inference evidence, *15 be drawn that at' the time the went into McNamara Kingshighway saloon at inquired and and Yandeventer for pocket a man papers, and took from his certain engaged upon that McNamara was then his master’s pro- and that business, McNamara inasmuch as then ceeded Kingshighway north the over viaduct the where happened, upon that he then still an errand appear for the master. It the evidence doesn’t that actually any papers McNamara office took from the pertained company which to the the business company. papers We must that infer McNamara had pocket defendant pertaining his the to master’s papers business, and must we next infer that the he pocket removed from in the saloon referred and to inquired papers pertaining for a man were to inquired master’s business, and man further that may for was some man who business relations have had company. with defendant The incident oc- which police day where Mc- curred Namara next station "papers, package over to turned Mr. Bennett a plaintiff, appear cannot aid the does papers papers they these were the or that were same pertained the defendant other business of they than that memoranda that McNamara places inspections. about he An make and be inference must from facts cannot be drawn presumption a based on Likewise another inference. presumption but must arise cannot based from facts. can be reason- inferences these

But assume ably re- evidence, drawn from and papers pertaining defendant’s business ceived that when he arrived at the officein afternoon and Kingshighway about 9:30 the saloon on south night at the same took asked and for man 203 MISSOUBI APPEAL BEPOBTS, papers

same pocket, from his and assume that papers pertained to that the and business, defendant’s inquired man he for had relations still defendant, it does not that thereafter follow when proceeding Kingshighway northward over where the accident occurred that McNamara still upon assumptions his master’s business. all After these speculations are made from the evidence con- clusion pro- is irresistible that thereafter McNamara purely personal, ceeded that was mission attempt even if he did at the saloon transact some business for his master, he thereafter resumed the entertainment of his friend Hudson. It is uncontra- inquired failing that after dicted heman find replaced pocket papers at the saloon he nothing about the that he further was matter, said proceeded upon and Hudson then left saloon and Kingshighway pleasure trip their over the northward *16 possibly It could not be said that viaduct. McNamara having master the for his thereafter finished business upon way home. was paper the to the saloon where

After this last- visit place, not Hudson did McNamara and incident took proceed block home which was the 1500 towards in practically in the went Tower but avenue, on Grove the opposite The home McNamara and direction. the south side on are both the referred to saloon Valley. Kingshighway Creek crosses Mill which Viaduct he would homeward bound was thereafter If McNamara eastwardly Vande- on proceeded short distance have then south avenue, to Tower Grove venter avenue over the garage. north that he went’ Instead clearly he indicates that Kingshighway which Viaduct, pleasure trip Hudson. proceeding with on was plain that the saloon incident is Prior to this indulging simply in a Hudson were McNamara city, stopping at various trip pleasure personal over They the south first in for refreshment. saloons north they’went to the city, end part ' n 321 v. end and city, and the south again then returned Groye Tower Park proceeded Kingshighway, through At over Kingshighway. then came hack north the defendant no time he for business upon any o’clock —the between the 9:50' hours of o’clock and 7 time of the accident. that under

Under must hold such circumstances we not law of the time State McNamara this driving the automobile his master, for his personal errand engaged upon purely own Mo. 198 S. 272 pleasure. v. Holmes, [Guthrie 170 S. 854; App. 307, W. v. 182 Harry, Glassman Mo. 164 403; Holmes, Whimster Mo. App. W. (not Bullene, 200 S. W. 236; S. Bolman v. W. reported).] officially yet defendant company" that

Respondent argues not dis- immediately McNamara’s conduct by ratified n that Mc- shows while evidence him. charging .a employment defendant’s Namara remained again per- the accident time after short never further' It con- the automobile. operate mitted suggested Bennett fact Mr.- tended consult that he McNamara after had done business who of attorneys firm evidence of ratification appellant company, do these two regard of McNamara’s conduct. We of the fact defendant evidence being any (cid:127)facts indulging conduct of ratified ‘- August. the 18th of joy-ride evening the time of foregoing We conclude employee McNamara was the accident *17 automobile, driving upon master’s journey exclusively contrary upon n authorities such circumstances own. Under his cannot be held the master liable agree uniformly servant. of the for the negligence should have to the evidence- been demurrer The ¡therefore recommends The Commissioner sustained. " ' reversed.: judgment is 203 M. a. — si 203 MISSOURI APPEAL REPORTS, foregoing opinion PER CURIAM: The Biggs, adopted opinion judg-

0., is of the The as court. accordingly ment the circuit court is reversed. Reynolds, J,. Allen P. and Beclcer, JJ., concur.

ON REHEARING. plaintiff’s rehearing motion for In a BIGGS, urge that counsel overlooked have certain we features of gave the case. He as we this, errs full consideration angle every to evidence order to determine judgment upheld. whether the could he

I. It contended that an inference can he drawn from evidence McNamara the time of the accident learning to was part run and that awas duty his his master, therefore the case jury. agree was for the We cannot with counsel’s place, goes contention. the first In no evidence show, having further than to that McNamara after the automobile turned over to him and after he had taught by been a demonstrator run take it it, evenings, says practicing” out in “was learning appears it. It run duty of such fact it defendant or that knew was the evening take McNamara to the machine out upon employer’s purpose his when business for the learning purpose. run it or for other purpose, furnished teacher master who rode days, with five McNamara thereafter days. himself ran machine for about ten It seems beyond going pale that would of reason say under the facts of this that McNamara on the case engaged of the accident occasion on his master’s plain the evidence that he business, when was then taking pleasure own a ride about city Hudson. friend *18 323 OCTOBER TERM, II. says original tbe de- brief, in Ms counsel

As employee McNamara, of Ms fendant tbe act ratified company called on defendant an officer of because jail confined, and tbe suggested employ the com- who that he counsel were defendant did pany’s lawyers, further because discharge McNamara. not thereafter plaintiff place, not sue first In theory defendant an unauthorized ratification of of a agent theory employee, but on the act its acting for the master authorized and in fact certainly accident. outside of But this company the defendant fact the mere officer jail recommending was in that he McNamara who happened employ counsel who certain counsel be a ratification of held the defendant should not be be joy-ride taking in act McNamara a unauthorized pleasure the employee the time of accident. While own discharge after did not its defendant undisputed that he never thereafter accident, permitted run the automobile. Such circumstances a ratification. not constitute could Mo. 1. c. relied on Perkins Railroad, authority proposition under by plaintiff, is not an case a malicious case. That facts ejecting passenger wrongfully a conductor act of After wanton were committed, the train. acts company conductor. retained still servant damages punitive case held such a The Court fact that the conductor was that the recoverable, employ afterwards the defendant retained of his malicious a ratification into would construed act.

III. assignment say that we overlooked Counsel placed negligence defendant to the effect 203 MISSOURI APPEAL REPORTS, Harris v. Association. Railroad inexperienced hands un- of its who was *19 skilled an him automobile and turned loose on the operate learn without restrictions streets any supervision him or over him, without dangerous such automobile under circumstances ais said instrumentality, and that on account thereof defendant should he liable. held argument

Granting may such sake that acts negligence, in the constitute the evidence does case being support charge. guilty of the said Instead of negligence, act of the record discloses that the defend- ant heretofore caused demonstrator stated, as accompany days so to teach him as five operate the automobile.

It is therefore recommended the motion for rehearing be overruled. opinion foregoing

PER CURIAM: The of Biggs, Respond- adopted opinion C., Court. rehearing accordingly ent’s motion for overruled. Reynolds, J,. JJ., P. Allen and Becher, concur. Respondent, HARRIS, IDELLA TERMINAL RAIL- Appellant. LOUIS, ASSOCIATION OF ST. ROAD Appeals. Opinion February 3, Filed Court of Louis 1920. St. Agency: ARREST FALSE AND 1. IMPRISONMENT: Evidence: Employee. damages against at Direction of Arrest In an action for imprisonment a railroad association for false arrest aon c-barge larceny, plaintiff evidence held sufficient to show employees arrested direction of one defendant’s regular performance employment. while of his police officer, -: Arrest: What Constitutes. Where a plaintiff denfendant, command of took arm held, her, stopped policeman stopped that when the her he her, arrested and that such arrest made at direction ' employee. defendant’s