Sweat v. Brozman

• Decision Date: 02 December 1946
• Citation: 198 S.W.2d 531,239 Mo.App. 1048
• Parties: Clara Sweat, Administratrix of the Estate of Tome Sweat, Respondent, v. R. F. Brozman and William Bryant, doing business as American Car Sales Company, Appellants
• Court: Kansas Court of Appeals

198 S.W.2d 531

239 Mo.App. 1048

Clara Sweat, Administratrix of the Estate of Tome Sweat, Respondent, v. R. F. Brozman and William Bryant, doing business as American Car Sales Company, Appellants

Court of Appeals of Missouri, Kansas City

December 2, 1946

Appeal from the Circuit Court of Jackson County; Hon. James W Broaddus, Judge.

Reversed.

Langworthy Matz & Linde, Clyde J. Linde, and Daniel S Millman for appellants.

(1) The court erred in refusing to sustain the joint separate motions of defendants R. F. Brozman and William Bryant, doing business as American Car Sales Company, for a directed verdict at the close of plaintiff's evidence because plaintiff's evidence proved that appellants were bailors of the Cadillac automobile, and as such they were not liable for the negligence of a prospective purchaser; plaintiff utterly failed to prove that Joseph Eckler and Donald Bishop were agents or employees of appellants. Saunders v. Prue, 151 S.W.2d 478, 235 Mo.App. 1245; Kurz v. Greenlease Motor Car Co. (Mo. App.), 52 S.W.2d 498; Mulanix v. Reeves, 112 S.W.2d 100, 233 Mo.App. 143; Tourkakis et al. v. Bellman et al. (Mo. App.), 71 S.W.2d 1084; State ex rel. v. Bland, 64 S.W.2d 638, 333 Mo. 941; Restatement, Agency, paragraph 1; Sowers v. Howard, 139 S.W.2d 897, 346 Mo. 10; Kurz v. Greenlease Motor Car Co. (Mo. App.), 52 S.W.2d 498; State ex rel. Waters v. Hostetter, 126 S.W.2d 1164, 344 Mo. 443; State ex rel. Anderson v. Daues (Mo.), 287 S.W.2d 909; Anderson v. Wells (Mo. App.), 273 S.W. 233; Section 8370, R. S. Mo. 1939. (2) The court erred in not excluding, as far as appellants were concerned, certain declarations against interest made by defendant Joseph Eckler, while giving his deposition in the cause, over the objection and exception of appellants, because such admissions should have been limited to the defendant making same. Winegar v. C. B. & Q. (Mo. App.), 163 S.W.2d 357; St. Charles Savings Bank v. Denker, 205 S.W. 208, 275 Mo. 607; Shelton v. Wolf Cheese Co., 93 S.W.2d 947, 338 Mo. 1129; Murray v. De Luxe Motor Stages (Mo. App), 133 S.W.2d 1074; Hammond v. Schuerman Bldg. & Realty, 177 S.W.2d 618, 352 Mo. 418; Austin-Western Road Machinery Co. v. Commercial State Bank (Mo. App), 255 S.W. 585. (3) The court erred in not excluding, as far as appellants were concerned, certain declarations against interest made by defendant Donald Bishop while giving his deposition in the cause, over the objection and exception of appellants, because said admissions should have been limited to defendant Donald Bishop; because portions thereof were his conclusions and other portions were what Joseph Eckler had told him. (4) The court erred, to the prejudice of appellants, in giving instruction numbered three, over their objections and exceptions, because: (a) The instruction assumes the employment and agency of defendant Joseph Eckler. (b) It prejudicially singles out and comments upon a portion of the evidence, to-wit, that the Cadillac car was being operated with duplicate dealer's license numbers of the American Car Sales Company. (c) It assumes and does not require the jury to find that defendant Donald Bishop was an agent of appellants. Barr v. Nafzizer Baking Co., 41 S.W.2d 559, 328 Mo. 423; Alexander v. Hoenshell (Mo. App.), 66 S.W.2d 164; C. I. T. Corp. v. Hume (Mo. App.), 48 S.W.2d 154; Brunskill v. Farabi (Mo. App.), 181 S.W.2d 549.

Ben W. Swofford, Robert L. Jackson, Ronald Shankland, Francis L. Roach, and Laurence R. Smith for respondent.

(1) There was sufficient competent evidence from which the jury could find that defendant Joseph Eckler was acting as an agent for appellants R. F. Brozman and William Bryant, doing business as the American Car Sales Company, for and on their behalf and within the course and scope of his agency. Large v. Frick Company, 256 S.W. 90, 215 Mo.App. 232; Kaden v. Moon Motor Car Company (Mo. App.), 26 S.W.2d 812; Wyse v. Miller (Mo. App.), 2 S.W.2d 806; Noren v. American School of Osteopathy (Mo. App.), 2 S.W.2d 215; Schneider v. Dubinsky Realty Company, 127 S.W.2d 691, 344 Mo. 654; Sinclair Refining Company v. Farmers Bank of Portageville, 91 S.W.2d 122, 230 Mo.App. 1132. (2) The defendants R. F. Brozman and William Bryant became responsible for the actions and conduct of Joseph Eckler since he was acting as an accommodation to them and in furtherance of their business and interests. Andres v. Cox, 23 S.W.2d 1066, 223 Mo.App. 1139. (3) Since the Cadillac car involved was owned by defendants William Bryant and R. F. Brozman, carried their dealers' license plates, contained their rationed gasoline, and was in the possession and control of their agent, Joseph Eckler, the permission given Bishop to drive was within the scope of Eckler's Agency for and accommodation of the defendants William Bryant and R. F. Brozman and the case was properly submitted to the jury under the doctrine of respondeat superior. 42 Corpus Juris, Section 858(bb); Semper v. American Press, 273 S.W. 186, 217 Mo.App. 55; Slothower v. Clark, 191 Mo.App. 55, 179 S.W. 55; Section 8371, R. S. Mo., 1939; State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164; Waters v. Hays (Mo. App.), 130 S.W.2d 220; State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802. (4) Appellants' authorities distinguished. Saunders v. Prue, 151 S.W.2d 478, 235 Mo.App. 1245; Mulanix v. Reeves, 112 S.W.2d 100, 233 Mo.App. 143; Tourkakis et al. v. Bellman et al. (Mo. App.), 71 S.W.2d 1084; Kurz v. Greenlease Motor Car Company (Mo. App.), 52 S.W.2d 498; Sowers v. Howard, 139 S.W.2d 897, 346 Mo. 10; State ex rel. Anderson v. Daues (Mo.), 287 S.W. 603; Anderson v. Wells (Mo. App.), 273 S.W. 233; Krelitz v. Calcaterra (Mo.), 33 S.W.2d 909. (5) The trial court properly admitted the declarations against interest of defendants Joseph Eckler and Donald Bishop, and the appellants William Bryant and R. F. Brozman were not prejudiced thereby. Pulitzer v. Chapman, 85 S.W.2d 400, 337 Mo. 298; Kneezle v. Scott County Milling Company (Mo. App.), 113 S.W.2d 817; Aquamsi Land Company v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332; Winegar v. C., B., & Q. (Mo. App.), 163 S.W.2d 357; St. Charles Savings Bank v. Denker, 205 S.W. 208, 275 Mo. 607; Shelton v. Wolf Cheese Company, 93 S.W.2d 947, 338 Mo. 1129; Murray v. DeLuxe Motor Stages (Mo. App.), 133 S.W.2d 1074; Austin-Western Road Machinery Co. v. Commercial State Bank (Mo. App.), 255 S.W. 585; Proffitt v. Farmers' Produce Exchange Cooperative Association No. 277, Inc., et al. (Mo. App.), 64 S.W.2d 746; Whittington v. Westport Hotel Operating Company, 33 S.W.2d 963, 326 Mo. 1117; Beitling v. S. S. Kresge Company, 116 S.W.2d 522, 232 Mo.App. 1195; Hammond v. Schuermann Building & Realty Company, 352 Mo. 418, 177 S.W.2d 618; Ferril v. Kansas City Life Insurance Company, 345 Mo. 777, 137 S.W.2d 577; Hinson v. Morris (Mo. App.), 298 S.W. 254; Dawes v. Williams, 328 Mo. 680, 40 S.W.2d 644.

OPINION

Cave, J.

This is a suit filed by Tome Sweat for damages for personal injuries suffered in an automobile collision. At the trial the jury returned a verdict in his favor in the sum of $ 4500; a remittitur of $ 2,000 was made, and judgment entered against all defendants for $ 2,500. After the trial Tome Sweat died and his widow, Clara Sweat, as administratrix, was substituted as plaintiff.

The cause was commenced against Donald Bishop, an individual, R. F. Brozman and William Bryant, as co-partners, doing business as American Car Sales Company, Joseph Eckler and Dorothea Eckler, as co-partners, doing business as Eckler and Eckler, but at the beginning of the trial plaintiff voluntarily dismissed as to Dorothea Eckler.

The petition alleged that defendant Donald Bishop negligently operated an automobile so as to cause a collision with plaintiff's automobile, and that said defendant Donald Bishop was acting as agent, servant and employee of defendants Joseph Eckler and Dorothea Eckler, and as the agent of defendants Brozman and Bryant, doing business as American Car Sales Company, and that defendant Joseph Eckler was also acting as the agent, servant and employee of defendants Brozman and Bryant. Defendants Brozman and Bryant filed joint separate answers admitting they were engaged in a partnership, known as American Car Sales Company, but denying that either Donald Bishop or Joseph Eckler was acting as their agent, servant and employee; also denying that they or any of the other defendants were negligent.

Brozman and Bryant are the only parties appealing from the judgment. The points and authorities relied on by them for a reversal of the judgment make it unnecessary for us to review the evidence touching the question of negligence or the injuries received.

Appellants charge that the court erred in not sustaining their motions for a directed verdict at the close of plaintiff's evidence, and at the close of all the evidence because, (a) plaintiff's evidence proved that appellants were bailors of an automobile, and as such were not liable for the negligence of a prospective purchaser; (b) plaintiff failed to prove that Joseph Eckler and Donald Bishop were agents or employees of appellants.

It is conceded that at the time of and prior to the accident appellants Brozman and Bryant were partners, doing business as American Car Sales Company, operating a used car agency in Kansas City, Missouri, and buying and selling used automobiles; that the Cadillac car involved in the accident was owned by them and was one of several cars they had for sale; that at the time of the accident this car was carrying duplicate dealers' license plates issued to the partnership as a used car sales agency; that it was being driven at the time by the defendant Bishop, and that defendant Joseph Eckler was riding in the car with him. It is...