Sowers v. Howard

• Decision Date: 04 May 1940
• Docket Number: 35779
• Citation: 139 S.W.2d 897,346 Mo. 10
• Parties: Clayton Sowers v. I. E. Howard, Defendant, and Standard Oil Company, Indiana, Appellant
• Court: Missouri Supreme Court

139 S.W.2d 897

346 Mo. 10

Clayton Sowers v. I. E. Howard, Defendant, and Standard Oil Company, Indiana, Appellant

No. 35779

Supreme Court of Missouri

May 4, 1940

Appeal from the Chariton Circuit Court; Hon. Paul Van Osdol, Judge.

Reversed.

Brewster Brewster & Brewster, William B. Bostian and R. R Brewster for appellant.

The court erred in refusing, at the close of all the evidence, to give Instruction B, offered by defendant company, in the nature of a demurrer, instructing the jury to find the issues against the plaintiff and for the defendant company, because all of the evidence adduced by both plaintiff and defendant company conclusively proved that at the time of the collision defendant Howard was not operating the truck in question in and about the business of the company or in the performance of any duty owed the company under the terms of his employment; but, on the contrary, solely for his own pleasure and convenience and the pleasure and convenience of his father. Guthrie v. Holmes, 272 Mo. 233, 198 S.W.2d 164; Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; State ex rel. v. Hostetter, 115 S.W.2d 802; Mullally v. Langenberg Bros. Gr. Co., 339 Mo. 582 98 S.W.2d 645; Farber v. Mo. Pac. Ry. Co., 116 Mo. 81, 22 S.W. 631; McMain v. Conner & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43; Green v. Western Union Tel. Co., 58 S.W.2d 772; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; McCaughen v. Mo. Pac. Ry. Co., 274 S.W. 97; 18 R. C. L., p. 795, sec. 254; Humphrey v. Hogan, 104 S.W.2d 767; Chiles v. Life Ins. Co., 230 Mo.App. 350, 91 S.W.2d 164; Calhoon v. Mining Co., 202 Mo.App. 564, 209 S.W. 318; Farber v. Railroad Co., 32 Mo.App. 378; Shelby v. Street Ry. Co., 141 Mo.App. 514, 517; Melcher v. Handelman, 249 S.W. 152.

James Collett, Harry K. West, Trusty, Pugh & Trust and Guy Green, Jr., for respondent.

(1) The court propery refused to give defendant's Instruction B in the nature of a demurrer to the evidence because: (a) Plaintiff produced substantial evidence of agency rather than presumptive case and defendant's evidence aided plaintiff's case. Greene v. Spinning, 48 S.W.2d 51; Buchholtz v. Standard Oil Co., 244 S.W. 973; Cholet v. Phillips Petroleum Co., 71 S.W.2d 799; Daniel v. Phillips Petroleum Co., 73 S.W.2d 355; Standard Oil Co. v. Parkinson, 152 F. 681; Garnant v. Shell Petroleum Co., 65 S.W.2d 1052; Coffman v. Shell Petroleum Co., 71 S.W.2d 97; Falstaff etc., Co. v. Thompson, 101 F.2d 301; Mann v. Stewart Sand Co., 243 S.W. 406; O'Malley v. Heman Const. Co., 255 Mo. 386, 164 S.W. 565; Fleischman v. Polar Wave Ice Co., 148 Mo.App. 117; Barz v. Fleischmann Yeast Co., 271 S.W. 361; Veatch v. Tiernan, 251 S.W. 420; Rockwell v. Standard Stamping Co., 241 S.W. 979; Ross v. St. Louis Dairy Co., 98 S.W.2d 717; Frohoff v. Adams, 108 S.W.2d 615; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Brucker v. Gambaro, 9 S.W.2d 921; Ward v. Scott, 47 S.W.2d 250; Klusman v. Harper, 298 S.W. 121. Presumptive and substantial prima facie case of agency distinguished. Barz v. Fleischmann Yeast Co., 271 S.W. 361; Brucker v. Gambaro, 9 S.W.2d 920; Ross v. St. Louis Dairy Co., 98 S.W.2d 717; State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638; Karguth v. Donk Bros., 253 S.W. 367; State ex rel. Dick etc., Co. v. Ellison, 229 S.W. 1059; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Murphy v. Loeffler, 39 S.W.2d 550; Benson v. Smith, 38 S.W.2d 743; Herrin v. Stroh, 263 S.W. 871; Renfro v. Central Coal & Coke Co., 19 S.W.2d 766; Chiles v. Met. Life Ins. Co., 91 S.W.2d 164; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Frohoff v. Adams, 108 S.W.2d 615. (2) There was substantial evidence of agency in that: (a) It is admitted that Howard was acting in the company's interests in bringing his father to Brunswick to assist in distributing the company's products, and: (b) There was evidence that the company had expressly authorized him to do this and defendant failed to clearly show that driver was not directly or indirectly serving master. Garnant v. Shell Petroleum Co., 65 S.W.2d 1052; Coffman v. Shell Petroleum Co., 71 S.W.2d 97; Woerheide v. Kelley, 255 S.W. 1069; Cotton v. Ship-By-Truck, 85 S.W.2d 80; Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Yerger v. Smith, 89 S.W.2d 66; Steinmetz v. Saathoff, 84 S.W.2d 437; Tutie v. Kennedy, 272 S.W. 117; Borgstede v. Waldbauer, 88 S.W.2d 373.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

The opinion in this case, pending on rehearing, was written by Commissioner Cooley on original submission. After a careful consideration of the issues we reach the conclusion his disposition of the case was correct and we adopt his opinion, making such additions and modifications as appear proper in the light of the presentation on rehearing.

"Respondent Sowers, plaintiff below, sued I. E. Howard and the Standard Oil Company (of Indiana) a corporation, for damages for personal injuries received by him in a collision between his automobile and a truck driven by Howard. It is claimed that Howard, at the time, was agent of his co-defendant and was acting within the scope of his authority. Plaintiff obtained judgment for $ 9000 against both defendants, from which defendant Standard Oil Company alone appealed. For brevity we shall refer to said appealing defendant as the company or as appellant.

"The collision occurred at about 8:30 P. M. on Sunday, June 3rd 1934, near the top of King's Hill, on Highway 24, some three and a half miles east of Brunswick, Missouri. Highway 24 runs generally east and west and for the purposes of this case we may so designate directions. There is, however, a curve at or near the top of King's Hill, the curve being to the right as you go westward, and vice versa, which we may need to refer to later. Also the road passes through a cut at about the top of the hill and from the top of the hill slopes downward, rather steeply we gather from the record, toward the west. Plaintiff, accompanied by his wife, was driving eastward in his automobile, approaching the top of King's Hill and Howard, accompanied by his wife and his father, was driving westward in a truck (to be more definitely referred to hereinafter). The two vehicles collided ('side swiped') as they were respectively rounding the curve or just after the truck had rounded the curve, resulting in plaintiff's injuries. There was evidence tending to show that Howard was guilty of negligence, also evidence tending to show that he was not. That evidence need not be detailed since, if a submissible case was made as to appellant, the question of fact thus presented was for the jury.

"Appellant was engaged in the sale and distribution of gasoline and petroleum products and maintained a station, called a B. Station, at Brunswick, Missouri. By written contract it had, prior to the accident here involved, employed Howard as its agent to manage that station and to sell, on a commission basis, its products within a defined territory. For clarity we state here that it seems to be conceded -- at least is sufficiently shown -- that the place of the accident was within the geographical limits of Howard's assigned territory and that within such territory he was authorized to sell and deliver, from truck, the appellant's products.

"Said contract provides, in substance: --

"Howard is employed as the company's agent to operate its bulk station (B. Station) at Brunswick, Missouri, 'and in connection therewith to sell its petroleum products . . .' in certain (assigned or to be assigned) territory, on these terms and conditions:

"1. He will devote his time and attention to said employment.

"2. That he has received full instructions as to his duties and will comply therewith and with such other instructions and rules as may be given him from time to time.

"3. That he will operate the station efficiently, etc., (not here important).

"4. That he will sell for cash or on credit at price fixed by the company, remitting for cash sales as instructed, and will extend credit only to such persons as the company may authorize.

"5. That he will not sell or pledge the company's goods for his personal account.

"6. (Refers to sales to unauthorized customers, deductions on account of such sales from any amount due agent on termination of contract, etc. Seems to have no bearing here.)

"7. (Deals with financial responsibility to company for sales made to service stations and uncollected for, has no bearing on this case.)

"Paragraphs 8, 9 and 10 read as follows:

"'8. That he will provide and maintain, at his own expense, whatever truck chassis may be necessary to make proper sale and delivery of the Company's products (the Company to furnish tank, bucket box and buckets) and will personally operate one of said vehicles daily, except Sunday. In the event of his inability to operate one of said vehicles he may, with the consent of the Company, employ, at his own expense, a driver to operate said vehicle during such time as he is unable to operate the same.

"'9. That he will pay any and all taxes, license fees, excises, mileage fees and privilege taxes that may be levied or imposed upon said truck or trucks and-or upon the operation thereof.

"'10. That he will employ, at his own expense, suitable drivers to operate such other trucks as may be necessary upon the following conditions:

"'(a) No driver or drivers shall be employed by him except with the consent and approval of the Company.

"'(b) All drivers shall comply with the rules and regulations of the Company in a manner satisfactory to it.

"'(c) Drivers not satisfactory to the Company shall be discharged by the agent upon the Company's request.

"'(d) That he will be responsible to the...