101 F.2d 167 (8th Cir. 1939), 11249, Metropolitan Life Ins. Co. v. Gosney

Docket Nº:11249.
Citation:101 F.2d 167
Case Date:January 31, 1939
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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101 F.2d 167 (8th Cir. 1939)



GOSNEY et al.

No. 11249.

United States Court of Appeals, Eighth Circuit.

January 31, 1939

Rehearing denied February 22, 1939.

Clay C. Rogers, of Kansas City, Mo. (O. C. Mosman, C. Jasper Bell, and Paul A. Buzard, all of Kansas City, Mo., on the brief), for appellant.

Ira B. Burns, of Kansas City, Mo., for appellees.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

Russell Gosney and Harry Benson, plaintiffs in the court below, were on the evening of September 21, 1935, in Kansas City, Missouri, riding in a Ford V-8 coach belonging to and being driven by C. F. Kelly, an agent of the Metropolitan Life Insurance Company, when Kelly had an

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accident which resulted in his death and in injury to plaintiffs. The plaintiffs brought separate actions against the insurance company, alleging that Kelly at the time of the accident was its agent and employee; that he was operating his car in its service and within the scope of his employment; that each of the plaintiffs was a passenger and invitee of the company, and that the accident and their injuries were due to the negligence of Kelly. The company removed the cases to the federal court, wherein it filed answers denying that at the time of the accident the plaintiffs were its passengers and that Kelly was its agent or was operating the car in its service. The cases were consolidated for trial and tried to a jury, which returned a verdict in favor of each plaintiff. From the judgments entered thereon, the company has appealed.

The company asserts that the court erred: (1) in denying its motion for a directed verdict at the close of the evidence; (2) in certain of the instructions to the jury; and (3) with respect to certain rulings on evidence.

No question is raised as to the sufficiency of the evidence of Kelly's negligence or as to the amount of damages. The important question is whether, under the common law of Missouri, liability of the company for the negligence of Kelly was established.

The facts, as we must take them to be, in view of the verdicts of the jury, are, in substance, as follows: Kelly, the driver of the car, was a soliciting and collecting agent of the company. It was his duty to collect the premiums from all of the company's industrial policy holders residing within a designated territory or 'debit' assigned to him. His debit was in a thickly settled portion of Kansas City and he was required to call each week upon approximately 250 families. He was licensed as an insurance agent in Kansas and Missouri and was authorized by the company to solicit life insurance inside and outside of his debit. He was not required to solicit insurance outside of his debit. The amount of his compensation depended upon his success in maintaining in force the business within his debit and in procuring new business for the company. He used his car in connection with his work for the company and with its knowledge. He was not required by the company to use his car; none of the expenses of its operation was borne by the company; and his compensation was not based upon the use of his car. What means of travel he used in making his collections and soliciting business was apparently a matter of no concern to the company. It was interested in results and not in the particular means by which such results were obtained. Kelly's immediate superior was a Mr. Monahan, Assistant Superintendent of the district which included Kelly's debit. Mr. Magoon was Manager of the district. Kelly received instructions and suggestions from Mr. Monahan with respect to his work. He turned in his collections and made his reports at the district office in Kansas City.

The plaintiff Gosney, at the time of the accident, was a filling station attendant. His place of employment was in the southwest part of the City, at 804 West 47th Street. He roomed with the plaintiff Benson at 3536 Genesee Street, almost directly across the street from where Kelly lived. Benson worked at 1425 Grand Avenue. Kelly and Monahan traded at the oil station where Gosney was employed, and frequently met there for business conferences. At one of these conferences, on or about September 11, 1935, Monahan, in the presence of Gosney, asked Kelly why he could not sell Gosney some insurance. Gosney told Monahan that he would not buy insurance unless Benson, his roommate, bought some; that Benson had been an insurance man and if this insurance was not good enough for Benson, it was not good enough for him. Monahan then told Kelly 'to take' Gosney and 'go get hold of Mr. Benson and sell' them 'that insurance'. September 21, 1935, was a Saturday. There was no requirement of the company that Kelly work after noon on Saturdays. Kelly met Gosney at about 6 P.M. at Gosney's residence. Gosney was about to drive his car to Benson's place of business to bring him home and...

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