243 S.W. 406 | Mo. Ct. App. | 1922
This is an action to recover damages to plaintiff's automobile alleged to have been negligently run into in Kansas City, Missouri, by a truck belonging to the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $250 and defendant has appealed. *258
Defendant offered no evidence, standing upon its demurrer to the evidence and now insists that there is no evidence that the person who was operating the truck was an agent or servant of the defendant and acting within the scope of his employment at the time of the collision. Plaintiff on direct examination testified that his car was run into by "a Stewart Sand truck;" upon cross examination he was asked "Did the truck have the words Stewart-Peck Sand Company on its side?" He then answered, "Stewart Sand Company so far as I can remember." Upon being further pressed he stated. "I think Stewart Sand Company was printed on the side. I don't know whether Peck's name was there on the side or not. I don't know." The truck had a Missouri license.
Plaintiff's witness, Maupin, without objection, testified that it was a Stewart Sand Company's truck. No attempt was made on cross examination to elecit how the witness knew that it was a truck of the defendant. Plaintiff's witness Carroll on direct examination testified that it was a Stewart Sand Company's truck and on cross examination he stated that the driver of the truck said that it belonged to the Stewart Sand Company. After the witness answered the question, defendant's counsel asked him, "Q. It said that on the side? A. I asked him and he said that was — Q. (interrupting) I object to that — don't tell me what you found out by asking. What did you see on the side of the truck? A. I don't remember whether it had a sign on it or not." Defendant at no time moved to strike out the testimony of the witness Carroll that the driver had said the truck belonged to the Stewart Sand Company. In fact defendant made no objection to the statement at the time it was being testified to. He said, "I object to that." This has been held to be no objection whatever. [Green v. Strother,
"`As to the proof of ownership of the wagon, the defendants' name was on the wagon and there was no pretense of evidence on the trial that it did not belong to them. No witness was called by them on that point, although the proof of the fact, if it existed, must be deemed to be in defendants' possession; all presumptions on that point were therefore against them. [Wennerstrom v. Kelly,
However, defendant contends that the mere proof of ownership was not sufficient to show that the driver was the servant of the defendant acting within the scope of his employment, and to presume from the proof of ownership that the driver was defendant's servant and then again infer that he was acting within the scope of his employment is building inference upon inference or presumption upon presumption, which is improper. We think there is no merit in this contention. In fact such a contention has been ruled adversely by the Supreme *260
Court. [O'Malley v. Const. Co.,
In support of its contention that liability cannot be fixed upon the defendant by a mere showing of ownership of the truck, defendant cites the cases of Hays v. Hogan,
We think, however, that the court erred in permitting the introduction of the repair bills in evidence. These bills were not properly proved. The only testimony tending to show that these bills were proper was that of the manager of the service department for Butler Motor Company that made the repairs upon plaintiff's car. He testified that the repairs were not made under his supervision but under that of the shop foreman; that he knew that the car was there for repairs and saw it before and after the work was done; that the duties of the witness were outside of the shop and he had nothing to do with the directing of the repairs or the directing of the men in making the repairs. He said that he had 150 cars there every day to look over and that he knew nothing about whether the repairs were done except that the car was there for repairs, or the reasonable value thereof, except what was shown by the job ticket. He testified from the job ticket and said that it showed what repairs were made and that the charge for the labor and material was reasonable. He did not see the parts put into the machine nor did he assist in putting them in and knew nothing about what parts were used; he did not see the car during the process of the repairing until the work was finished and did not know how the car was damaged or anything about what work was done except from the job ticket, which he had in his possession.
The only evidence as to what the job ticket was, was that it was "written up from a memorandum which was written up on the outside." That it was a "regular job ticket" and that four copies were made, the original going to the customer. It showed the nature of the work and what was to be done. As to who made the job ticket, whether by a person who did or who supervised the work, or whether such person knew anything about the work that was done or where it was made and on what his knowledge was based or that the job ticket was made *262
in the usual course of business, is not shown. We think that the repair bill, which seems to be a copy of the job ticket, was improperly admitted in evidence. [Schwall v. Higginsville Milling Co.,