Schrader, George D.

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University of Kentucky

Kentucky Law JournalVolume 43 | Issue 2 Article 111954Agency--Presumption Thereof Arising FromOwnership of Motor Vehicle and Employment ofDriverGeorge D. SchraderUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Agency CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationSchrader, George D. (1954) "Agency--Presumption Thereof Arising From Ownership of Motor Vehicle and Employment of Driver,"Kentucky Law Journal: Vol. 43 : Iss. 2 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol43/iss2/11Recent CasesAGENCY-PimESUMTION TkEREOF AIusiNG FIRomI OWNERSnIP OF MOTORVEmcLE AND EMpLovmINr OF D uvE-Plaintiffs brought suit againstdefendant for injuries they received when struck by a vehicle ownedby defendant, but driven by one of his employees. Testimony of theemployee-driver was to the effect that he had completed a specialmission for the defendant and was at the time of the accident drivingthe defendant's truck on an errand of his own. The lower courtdirected a verdict in favor of the defendant on the ground that therewas insufficient evidence that the employee-driver was within thescope of his employment and the plaintiffs appealed. The Court ofAppeals of Kentucky affirmed the decision, holding that the driverwas not acting in behalf of the employer when the accident occured,and that there was no implied authority or consent on the part of thedefendant which could be construed to sanction the employee's useof the truck at that time. Higgins v. Deskins, 268 S.W. 2d 108 (Ky.1953).The court recognized the general rule that the plaintiff has theburden of proving both the employment of the driver and his opera-tion of the vehicle within the scope of his agency at the time of theaccident. The court also recited the rule that ". . . proof of ownership,coupled with evidence of employment, creates a presumption of re-sponsible agency which requires the defendant to take up the burdenof evidence and rebut the presumption. ....-tThe reasoning behind the creation of such a presumption to aid theplaintiff is found in the case of Webb v. Dixie-Ohio Express Company,2where the court said:Because it is often impossible for the plaintiff to prove the agency ofthe operator, it is deemed desirable socially that the burden of intro-ducing evidence on non-agency should be placed upon the defendantin whose peculiar knowledge rests the material evidence essential to adetermination of this fact.3The presumption is iebuttable and may be overcome by evidenceto the contrary which is clear, convincing, conclusive and unimpeach-able.4 The court, in the principal case, inferred that this presumption'Higgins v. Deskins, 263 S.W. 2d 108, 110 (Ky. 1953).2 291 Ky. 692, 165 S.W. 2d 539 (1942).OId. at 694, 165 S.W. 2d at 540.'Ashland Coca Cola Bottling Co. v. Ellison, 252 Ky. 172, 66 S.W. 2d 52(1934).KENTucKY LAw Jo-mNALwas raised in favor of the plaintiff but held that it had been sufficientlyovercome by the defendant's evidence.This presumption was first recognized by the Kentucky Court ofAppeals in Wood v. Indianapolis Abattoir Company of Kentucky5However, the rule stated in that case, relating to the requirements forraising the presumption, placed upon the plaintiff not only the burdenof proving ownership and general employment, but also "... . that theemploye was driving the automobile with authority, express or implied,of the owner . .."0 The court considered and rejected the rule asstated in the principal case which requires only proof of ownershipcoupled with evidence of general employment. Thus, there seem tobe inconsistent statements in the Kentucky cases concerning the re-quirements for raising this presumption.7Although such an inconsistency at first glance may seem to beinsignificant, it will be well to remember the reasoning behind theadoption of this presumption. The key to the plaintiff's case is themaster-servant relationship existing between the employer-owner andthe driver; however, this key will most likely be in the possession ofthe employer-owner since it is usually within his knowledge whetheror not the driver was within the scope of employment when the ac-cident occurred. Thus, the courts have established a rule which placesthe burden of going forward with the evidence upon the employer-owner when the plaintiff has established certain facts. The burden itwould seem is not too great, for all the employer-owner need do isrebut the presumption of agency, and if in fact there was no agency,it would seem he is the party who would, in most instances, be bestable to so prove. To leave the task of establishing such agency uponthe plaintiff would in some cases burden him with an almost impossibletask. Therefore, the end result of the rule seems desirable.The question, then, in order to raise the presumption, is whetherthe plaintiff should be required to prove ownership coupled withevidence of employment as is required in the principal case, orwhether he should be required to go further and prove that the agentwas driving the automobile with the authority of the owner, as was178 Ky. 188, 198 S.W. 782 (1917).0Id. at 191, 198 S.W. at 733.'Following Wood v. Indianapolis Abattoir Co. of Kentucky: Galloway MotorCo. v. Huffman's Adm'r, 281 Ky. 841, 137 S.W. 2d 879 (1940); Ashland CocaCola Bottling Co. v. Ellison, 252 Ky. 172, 66 S.W. 2d 52 (1933); Dennes v.Jefferson Meat Market, 228 Ky. 164, 14 S.W. 2d 408 (1929); Mullen and HaynesCo. v. Crisp, 207 Ky. 31, 268 S.W. 576 (1925). Following Higgins v. Deskins:Hickman v. Strunk, 303 Ky. 397, 197 S.W. 2d 442 (1946); Webb v. Dixie-OhioExpress Co. 291 Ky. 682, 165 S.W. 2d 539 (1942); Rawlings v. Clay Motor Co.,287 Ky. 604, 154 S.W. 2d 711 (1941); Home Laundry Co. v. Cook, 277 Ky. 8,125 S.W. 2d 763 (1939).RECENT CASESrequired in the Wood case." It would seem that the rule of the prin-cipal case should be uniformly adopted in Kentucky, and the morerecent Kentucky decisions are moving in that direction. 9 The primaryreason for having such a rule is that the element of agency is a matterwithin the knowledge of the employer-owner. It is also within hisknowledge as to whether or not the employee had authority to drivethe automobile. The latter as well as the former may be very difficultto prove on the part of the plaintiff especially if he is injured by anemployee who does not have the duty generally under the terms ofhis employment to drive the automobile. The principal case is a goodexample of this because there the employee did not have the dutygenerally under the terms of his employment to drive the automobile.Therefore, why should the plaintiff be burdened with having to estab-lish an additional fact, which is in some cases impossible for him to do,so as to raise a presumption in his favor, which the defendant canrebut as easily without the additional fact as with it?Not only do the Kentucky decisions fail to follow a uniform linewith regard to the requirements for establishing the presumption inquestion, but also the requirements as to raising the presumption varythroughout the nation. 10 Some jurisdictions hold that ownership of thevehicle is prima facie proof that the driver of the car was actingwithin the scope of the owner's business," while some are in accordwith the principal case,12 and others follow the Wood case.'8Thus, a rather confusing picture is presented with several theoriesadvanced concerning the requirements for raising the presumption ofagency in favor of the plaintiff. The rule of the principal case requir-ing the plaintiff to prove only ownership and general employmentseems to be the best rule, as it requires the plaintiff to prove factswhich are reasonable under the circumstances and then places theburden upon the defendant to go forward and rebut the presumptionraised from proof of such facts. The defendant's position, it wouldseem, allows him to accomplish this task. It is submitted that the ruleof the principal case presents a better balance of the duties and obliga-tions of the parties concerned and a clearer road to justice.GEORGE D. ScmuDER8Supra note 5."Supra note 7."'HtrDDY oN ATrroMoBams sees. 794-95 (8th ed. 1927).Graves v. Utica Candy Co., 209 App. Div. 193, 204 N.Y. Supp. 682 (1924).= d'Aleria v. Shirey, 286 Fed. 523 (C.C.A., 9th Cir. 1923).'"White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N.E. 302 (1913).Some cases hold that such evidence does not p resent a prima facie case of liability,but that the plaintiff must show affirmatively, at the particular occasion underconsideration, the driver was acting for his employer within the scope of employ-ment. Washburn v. R. F. Owens Co., 252 Mass. 47, 147 N.E. 564 (1925).

Agency--Presumption Thereof Arising From Ownership of Motor Vehicle and Employment of Driver

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Agency--Presumption Thereof Arising From Ownership of Motor Vehicle and Employment of Driver

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