Arditi v. Brooks Erection Co.

• Decision Date: 12 April 1954
• Docket Number: No. 43981,No. 1,43981,1
• Citation: 266 S.W.2d 556
• Parties: ARDITI v. BROOKS ERECTION CO
• Court: Missouri Supreme Court

Page 556

266 S.W.2d 556

ARDITI v. BROOKS ERECTION CO.

No. 43981.

Supreme Court of Missouri, Division No. 1.

April 12, 1954.

Hullverson & Richardson, St. Louis, for appellant.

Moser, Marsalek, Carpenter, Cleary & Carter, J. C. Jaeckel, St. Louis, for respondent.

HYDE, Presiding Judge.

Plaintiff had verdict for $10,000 damages for personal injuries, but the Court sustained defendant's motion for a new trial on the ground of error in giving instruction No. 1, and plaintiff has appealed.

Defendant says that instruction No. 1 was erroneous but also contends that it was entitled to a directed verdict ans that the verdict was excessive. Plaintiff was a passenger on a motor bus going west on Lindell Boulevard which was struck by a truck driven south on Taylor Avenue by defendant's employee. The truck was owned by the Shell Oil Company, which was also a defendant. The issue of whether defendant or Shell was responsible for the truck driver's negligence was submitted to the jury which found in favor of Shell and against defendant. The claim of defendant, as to being entitled to a directed verdict, is that the evidence conclusively established the liability of Shell. On this issue, the evidence was that for several years defendant had done repair work on Shell equipment. The truck involved in the collision had been delivered to defendant that morning by a Shell driver, for repair of a leak in its tank. Shell drivers usually brought their equipment over for repairs but defendant would send its employees to the Shell garage to get vehicles when asked to do so. Often Shell would send its employees for its trucks after repairs had been made but, whenever Shell did not have a man available, defendant would have its employees return them. Shell never designated the route to be taked in delivering a truck. Whether defendant made delivery of any truck depended upon Shell's instructions and this was arranged either when Shell contacted defendant about making the repair or after defendant notified Shell that repairs had been completed. On the occasion involved herein, according to Shell's automotive inspector, at the time of arranging for the repair work, defendant was requested to deliver the truck to Shell when the repairs were completed. According to defendant's president, after the repairs were completed, he telephoned Shell's garage and was asked then to deliver the truck. He instructed defendant's employee Nelson, its shop foreman, to deliver the truck and had another employee, Pool, follow him in his automobile to bring him back to defendant's premises. Defendant was paid by Shell under a blanket order, made on a year to year basis, providing rates for repair work and no extra charge was made for picking up or delivering Shell's equipment. Nelson and Pool were paid wages by defendant for the services they performed, including the time for making this delivery trip. The bill for the repair on this occasion was sent to and paid by another company which had overhauled the truck for Shell but which had not discovered the leak in the tank and which, for this reason, had authorized Shell to deliver the truck to defendant to make that repair.

Defendant's argument is that one who drives a vehicle as a mere accommodation or favor to the owner is a servant of the owner, citing Andres v. Cox, 223 Mo.App. 1139, 23 S.W.2d 1066. However, in that case, the decisive question on the liability of the owner of a car was whether a repair man in delivering it was an independent contractor or a servant of the owner. The Court did not hold he was a servant as a matter of law but said this was a jury question. Likewise we think it was at least a juty question here as to whether the driver Nelson was the servant of defendant or of Shell in making the delivery. Both parties agree that the applicable rule is stated in McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 70, 136 A.L.R. 516. In that case, we said: 'The question of who is the master and therefore responsible, for the negligent act of the servant is said to be determinable by who at the time has the right to control the acts of the servant causing the injury. * * * To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under the control of a third person. * * * Clearly our decisions have made this right of control, or direction, of the physical activities in performing service, the essential test to determine * * * who is the master of a particular servant as to any questioned act'. Certainly, the evidence in this case was sufficient to show and for the jury to find that defendant had the right of direction and control over Nelson, including the right to determine how and when he should perform the task of delivering the truck, and had not surrendered such right, or any part of it, to Shell. We, therefore, hold this issue was properly submitted to the jury.

Instruction No. 1 was as follows: 'The Court instructs the jury that if you find from the evidence that there was a stop sign at the northwest corner of Lindell and Taylor on the occasion mentioned in evidence, and that it had been placed there under a duly enacted ordinance of the City of St. Louis then and there in full force and effect, and that the Shell truck failed to stop before entering Lindell Boulevard as it proceeded southwardly on Taylor Avenue, and that it then and there collided with the Public Service Company bus, injuring plaintiff, if you so find, and

'If you further find that in failing to stop such truck under all of the circumstances then and there existing the driver of the truck failed to exercise the highest degree of care and was negligent, and that Mr. Arditi was injured as a direct result thereof, then you are instructed that the plaintiff is entitled to recover and your verdict should be in his favor and against either the Shell Oil Company or the Brooks Erection Company, as you may determine the issues with reference to those defendants under other instructions herewith submitted to you.'

It was conceded that the truck did not stop before entering Lindell Boulevard. It was about 5:00 P.M. and traffic on Lindell was heavy. The driver testified that he intended to stop and said that he attempted to do so, by...