Allen v. Coglizer
| Citation | 208 S.W. 102 |
| Decision Date | 18 January 1919 |
| Docket Number | No. 2377.,2377. |
| Parties | ALLEN v. COGLIZER. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.
Action by Mrs. Celestine Allen against S. W. Coglizer. Judgment of nonsuit, and Plaintiff appeals. Affirmed.
J. D. Harris, of Carthage, for appellant. H. W. Blair and J. W. Hallibu2ton & Son, all of Carthage, for respondent.
Action for damages caused by being run over by defendant's automobile while driven by another. Upon trial below before the court and a jury the trial court gave a peremptory instruction for the defendant at the close of all the evidence. The plaintiff thereupon took an involuntary nonsuit, with leave to move to set the same aside. Unsuccessful in getting the nonsuit set aside, plaintiff prosecuted her appeal to this court.
Plaintiff was run over and injured by defendant's automobile while at the Jasper county fair in September, 1917. The car was driven at the time by one Jess Williams, who plaintiff alleges was the agent and servant of defendant at the time, and was driving the car for and on his behalf. Defendant was engaged in the tent and awning business in Joplin, Mo., and had rented Jess Williams and his brother three tents, some stoves, and plates to conduct a restaurant or eating stand during the fair. Defendant was to receive $30 rental in any event, and if the net profits exceeded $60, he was to receive an additional rental of 50 ger cent. of such excess. Defendant and his family while at the fair took their meals at this stand, for which he paid. Defendant's 14 year old daughter aided some in waiting on the trade at this stand, but merely as a favor. Defendant was handling at the fair what is called the cushion section of the grand stand, and had no interest in the stand of the Williams boys, except that he owned the property mentioned. He leased this property for the duration of the fair, and had no control over or management of the stand. Jess Williams borrowed defendant's automobile to go to town after some supplies for the stand, and while on this mission ran over and injured plaintiff.
Plaintiff seeks to attach liability to defendant on two grounds: (1) That Jess Williams was the agent and servant of defendant at the time of the injury, and was on a mission at the time for defendant; (2) that the Williams boys and defendant were partners in the stand, and that defendant is therefore liable for the act of his copartner committed while on partnership business, The facts do not support either of plaintiff's propositions. That the relation of master and servant did not...
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