Andres v. Cox

• Citation: 23 S.W.2d 1066,223 Mo.App. 1139
• Parties: J. FRANK ANDRES, RESPONDENT, v. SOPHRONIA E. COX, MABEL DUSTIN AND MIKE REDEL, DEFENDANTS; MABEL DUSTIN, APPELLANT. [*]
• Decision Date: 04 February 1930
• Court: Court of Appeal of Missouri (US)

23 S.W.2d 1066

223 Mo.App. 1139

J. FRANK ANDRES, RESPONDENT, v. SOPHRONIA E. COX, MABEL DUSTIN AND MIKE REDEL, DEFENDANTS; MABEL DUSTIN, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

February 4, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.

AFFIRMED.

Judgment affirmed.

W. H Guest and C. P. Berry for appellant.

(1) The court erred in refusing to give and read to the jury this defendant's instruction in the nature of a demurrer to the evidence proffered at the close of plaintiff's case. Woods v. Bowman, 200 Ill.App. 612; McCloskey v Nagel, 206 A.D. 467, 202 N.Y.S. 34; Perry v Fox, 93 Misc. 89, 156 N.Y.S. 369; Stamper v. Jesse, 199 Ky. 324, 250 S.W. 1008; Holloway v. Schield, 294 Mo. 512; Segler v. Callister, 167 Cal. 377, 139 P. 819; Thorn v. Clark, 188 A.D. 411; Woodcock v. Sartle, 84 Misc. 488; Wooley v. Doby, 19 Ga.App. 797, 92 S.E. 295; Whalen v. Sheehan, 237 Mass. 112, 129 N.E. 379; Griesmer v. Netter, 273 Pa. St. 546, 117 A. 205; Ryciak v. New York Overseas Co., 200 N.Y.S. 379; Green's Ex'rs v. Smith, 146 Va. 442, 131 S.E. 846; Sweetnam v. Snow, 187 Mich. 169, 153 N.W. 770; Southern Garage Co. v. Brown, 187 Ala. 484, 65 So. 400; Luckett v. Reighard, 248 Pa. St. 24, 93 A. 773. (2) The court erred in refusing to give and read to the jury this defendant's instruction in the nature of a demurrer to the evidence proffered at the close of the whole case. See cases cited under point 1 above.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The only claim made by appellant is that the trial court erred in refusing to direct a verdict in her favor; i. e., that the evidence, as a matter of law, makes out her defense and destroys respondent's case. (2) "In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor" of the party relying upon the evidence, "which a jury might, with any degree of propriety, have inferred. . . . But the court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant, to counteract or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that would clearly be usurping the province of the jury." Buesching v. Gas Light Co., 73 Mo. 231; Karguth v. Coal & Coke Co., 299 Mo. 597; Sexton v. Sexton, 295 Mo. 143. (3) It was for the jury to say which of appellant's conflicting statements they would believe and, as well, which of the conflicting possible interpretations of appellants and Redel's testimony they would adopt. Davidson v. Ry., 301 Mo. 85, 86; Steele v. Ry., 302 Mo. 218, 219. (4) 1. A showing of ownership of the car justified an inference that the driver was driving for the owner. Seleine v. Wisner, 200 Ia. 1392; Perkins v. Stead (1907), 23 Times L. R. 433 (K. B. Div.) 2. The burden was upon defendant to show that at the time of the injury to plaintiff Redel was, pro haec vice, acting in the capacity of an independent contractor. Dillon v. Hunt, 82 Mo. 150; Central Coal & I. Co. v. Grider, 65 L.R.A. 459, note; 14 R. C. L., p. 78, sec. 15; Johnson v. Lumber Co., 93 P. 516. 3. No amount of oral testimony can discharge that burden. St. Louis Union Trust Co. v. Hill, 283 Mo. 278, 282, and cases cited; High v. R. R. Co., 318 Mo. 449, 450; State ex rel. v. Ellison, 286 Mo. 232, 233; Sexton v. Sexton, 295 Mo. 143; Unvein v. Hide Co., 295 Mo. 368; Johnson v. Lumber Co., 93 P. 516. (5) The very indefiniteness of the evidence upon which appellant bases its present claim is adequate to support the finding which the jury made. Hoelker v. Am. Press Co., 317 Mo. 74; 2 Berry on Automobiles (6 Ed.), sec. 1317; Lane v. Roth, 195 F. 257. (6) One who is driving a car "as a mere favor" to the owner is the owner's servant, pro haec vice. Janik v. Motor Co., 180 Mich. 567, 568; Marron v. Bohannon, 104 Conn. 467; Ryceak v. N.Y. Oversea Co., 200 N.Y.S. 379. (7) The following cases more nearly approach the facts in the instant case: Marron v. Bohannon, 104 Conn. 467; Lane v. Roth, 195 F. Rep. 255; Jimmo v. Frick, 255 Pa. St. 353; Hoelker v. American Press, 317 Mo. 64. (8) Bailment locatio operis faciendi has no application until delivery to the bailee under the contract of bailment. The "testing" and "tuning up" cases cited by appellant fall within this class, because the bailee in each of those cases was, at the time of inflicting injury, in possession under the contract to repair or a bailment locatio custodiae. 3 R. C. L., pp. 78, 79, secs. 8 and 9. (9) The fact that the courts are careful to set out, in many cases, that the contract did or did not include the "delivery" of the offending car, and the decisive effect given this feature, is conclusive that one may be a bailee (or independent contractor) as to repairs and a servant as to delivery. Holloway v. Schield, 294 Mo. 512 et seq., and cases cited; Jimmo v. Frick, 255 Pa. St. 357; (Most of the cases cited by appellant). (10) The evidence does not show any contract of bailment (or with an independent contractor) which, as a matter of law, must be said to have included the return of appellant's car to the garage after her failure to receive and use is for her evening drive during an interim in the repair work. (11) The question is not whether the employer actually exercises control, but is whether he has power to do so. 14 R. C. L., p. 68, sec. 3. (12) One may be an independent contractor as to some things and a servant as to others, at the same time and for the same principal. 14 R. C. L., pp. 76, 77, sec. 13; 39 C. J., p. 1323, sec. 1529, note 3, and cases cited; Speed v. Railroad, 71 Mo. 309; Cases cited under Point 7, supra. (13) 1. One of the distinctive characteristics of an independent contractor is that he may employ others to do the work. Central Coal & I. Co. v. Grider, 65 L.R.A., pp. 500, 501, notes. 2. The evidence in this case justifies a finding that Mrs. Dustin specifically intrusted the return of the car to Redel in person. This finding implies that Redel was not authorized to commit the return of the car to another. "Delegatus non potest delegare" (same citation). (14) Appellant might have sent the car back by a person other than Redel. He was under no obligation to return it. She was under no obligation to permit him to do so. She might have directed the particular route he was to follow and speed he was to drive.

SUTTON, C. Becker and Nipper, JJ., concur. Haid, P. J., absent.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff on June 11, 1926, when he was struck by an automobile, driven by defendant Mike Redel, and belonging to defendant Mabel Dustin, at Delmar and Clara avenues, in the city of St. Louis. The cause was tried to a jury. At the close of plaintiff's case, the court gave an instruction in the nature of a demurrer to the evidence on behalf of defendant Sophronia E. Cox, whereupon plaintiff took an involuntary nonsuit as to said defendant, and the cause proceeded against the remaining defendants, Mabel Dustin and Mike Redel. The jury returned a verdict in favor of plaintiff against both said defendants for $ 5,000, and defendant Mabel Dustin appeals.

The appellant assigns error here upon the refusal of her instruction in the nature of a demurrer to the evidence. No question is raised as to the negligence of defendant Mike Redel. The only question raised relates to the responsibility, or not, of appellant for the negligent act of Redel which caused respondent's injury. Appellant contends that Redel, while driving her automobile, was acting in the capacity of an independent contractor, whereas respondent contends that he was her servant at the time acting in the scope of his employment.

Relative to this issue, defendant Redel, who was produced as a witness by respondent, testified:

"I am an automobile mechanic. On June 11, 1926, I had an automobile repair shop at 2821 Easton avenue, in St. Louis. I did some repair work on an automobile brought into my shop by Mrs. Dustin. I had occasion to make repairs on this automobile prior to June 11, 1926. Mrs. Dustin brought the automobile to my shop about three o'clock in the afternoon of that day. She instructed me to make repairs on the automobile and to deliver it to her home at 5800 West-minster after the repairs were made. She instructed me to repair the car so it would run decently, and then bring it out to her home some time after 8:30 or nine o'clock. She said she wanted the car at that time, because she had an engagement. I undertook to deliver the car in compliance with those instructions. When I got to the Dustin home, I guess it was between 8:30 and nine o'clock, there wasn't any one there, and I waited a little bit, and I went down to Down's Auto Company in the 5600 block on Delmar avenue and from there I called Mrs. Dustin over the telephone, and she said: 'All right take it on back, and whatever it needs--the clutch to be repaired--and fix it.' She said to take it back and fix whatever was needed. I told her the clutch was bad, and she said to take it back and fix it. I then proceeded back to my place of business, going east on Delmar. On approaching the intersection of Clara and Delmar, I saw a man crossing Delmar about forty feet away, and about eight feet south of the safety zone, walking south, and I pulled my car to the left, and as I did, I ran into the safety zone and hit a number of persons. Mr. Andres was the first man I hit. When Mrs. Dustin left the automobile in my repair shop, there was a leak in the carburetor. She told me to merely fix the leak in the carburetor, and nothing else. I had completed the job when I repaired the carburetor--when I repaired what she wanted me to do. The leak in the carburetor was all we discovered was...