Arnold v. Haskins

• Decision Date: 01 February 1941
• Docket Number: 36660
• Parties: Jenny Arnold, Appellant, v. G. D. Haskins, Sr., and G. D. Haskins, Jr
• Court: Missouri Supreme Court

147 S.W.2d 469

347 Mo. 320

Jenny Arnold, Appellant, v. G. D. Haskins, Sr., and G. D. Haskins, Jr

No. 36660

Supreme Court of Missouri

February 1, 1941

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed and remanded.

Robert A. Dempster and W. P. Wilkerson for appellant.

(1) Where a truck that figured in an accident had defendant's sign painted upon it and driver admitted that he was working for defendant on the date of accident, but refused to answer questions as to whether he was driving truck at time of the accident on grounds they might tend to incriminate him, and defendant did not testify, the court held that these facts were sufficient to establish the fact that the truck was the property of defendant and that the chauffeur was his agent at the time. Karte v. Brockman Mfg. Co., 247 S.W. 417. (2) Where a truck had defendant's sign on it and one witness said it was defendant's truck, but there was no showing as to how he knew, and where defendant was in the sand business and the truck was loaded with sand, the proof was held sufficient to carry to the jury the question of whether the driver was defendant's servant, acting within the scope of his employment. Mann v. Stewart Sand Co., 243 S.W. 406. (3) One who drives a car as a mere accommodation or favor to the owner of the car is the servant of the owner. Andres v. Cox, 23 S.W.2d 1069. (4) Whether helper called in by employee to assist him was also servant of employer, is a question for the jury to decide under the particular facts of the case. Fuqua v Lumberman's Supply Co., 76 S.W.2d 715, 229 Mo.App 220. (5) Where workmen were loading timbers on railroad car and foreman absented himself after placing another in charge and workman was injured while following orders of "substitute" foreman, the court said McCann, the foreman, had authority and was acting within the scope of his employment in ordering and overseeing the car loaded. Plaintiff, as a workman, was placed there to obey McCann's orders in that particular. It was held that it was in the apparent scope of McCann's employment, and that he had the implied and incidental power as the foreman whose business it was to see that the car was loaded, to designate some one to act as "straw boss" or substitute for him during his temporary absence. Allen v. Quercus Lbr. Co., 177 S.W. 755. (6) Where defendant's servant allowed stranger to run elevator out of servant's way but didn't warn stranger that men were working in elevator shaft and stranger ran into men and killed one, employer held liable on ground servant was negligent in failure to warn stranger. The benefit of every reasonable inference of fact which the evidence will bear must be given to plaintiff in determining the question whether the testimony tends to prove negligence on the part of a defendant. Appeal v. Eaton & Prince Co., 97 A. 439. (7) The general rule is that a servant has implied authority to employ or request assistance to perform a duty where an emergency or exigency arises requiring immediate action to protect the interest of a master. Booth & Flynn v. Price, 39 S.W.2d 717, 76 A. L. R. 957. (8) The relation of master and servant is prima facie established where it is shown that the alleged servant was performing labor for defendant at the time of the injury. Margulis v. Natl. Enameling & Stamping Co., 23 S.W.2d 1049.

Creal Black and C. A. Powell for respondents.

(1) The granting of a new trial for the reason that the evidence is insufficient is the same as granting a new trial for the reason that the verdict is against the weight of the evidence. The granting of a new trial for this reason lies within the discretion of the trial court, and where there is evidence to have supported a verdict for the other party, the action of the trial court in granting a new trial for this reason will not be disturbed by the appellate court. Gates v. Nichols' Sanatorium, 55 S.W.2d 424, 331 Mo. 754. (2) An agent or employee cannot delegte his authority to another and cause his master to be responsible for the negligent acts of such other person unless the agent or employee is present. In such case the master is liable for the negligent acts of such other person not on the theory that such other person is his agent but on the theory that such other person's act is in fact the act of the agent or employee. Weatherman v. Handy, 198 S.W. 459; Blumenfeld v. Meyer-Schmid Grocer Co., 230 S.W. 132, 206 Mo.App. 509; Mangan v. Foley, 33 Mo.App. 250; Haynie v. Jones, 127 S.W.2d 105, 233 Mo.App. 948; Semper v. American Press, 273 S.W. 186, 217 Mo.App. 55; Lindsay's Exec. v. Singer Mfg. Co., 4 Mo.App. 571.

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

OPINION

COOLEY

Appellant, plaintiff below, sued to recover for the death of her husband, Leo Arnold, who was killed in an automobile accident. There were four defendants named, G. D. Haskins, Sr., G. D. Haskins, Jr., Thad Campbell and Pat Sherwood. Plaintiff recovered a verdict for $ 10,000 against all of the defendants. Haskins, Sr., and Haskins, Jr., filed motion for new trial, which was by the court sustained and from the order sustaining said motion the plaintiff appealed. It does not appear that Campbell or Sherwood filed motions for new trial. At least, so far as appears from the record before us, they seem to have abided the verdict and do not appear as respondents here, the respondents being the two Haskinses.

G. D. Haskins, Sr., and G. D. Haskins, Jr., father and son, lived at Malden, Missouri, and were engaged, as partners, in the cotton ginning business. They had cotton gins at Malden and Vanduser, Missouri, and in the course of their business sold cotton seed, one of their customers being the Missouri Cotton Oil Mill at Cairo, Illinois. Defendant Sherwood owned some trucks which he used in general hauling for hire for various people. On occasion he hauled cotton seed from respondents' gins to the Cotton Oil Mill at Cairo, whether as employee and agent of respondents or as independent contractor or in some other capacity being a disputed question. Defendant Campbell was a brother-in-law of Sherwood and the two would at times aid each other, as matter of accommondation, when either had trucking difficulties. Campbell was not employed by the Haskinses nor personally acquainted with either of them.

The accident herein involved occurred on December 29, 1937, five or six miles north of Sikeston, Missouri, on U.S. Highway No. 61, at about three o'clock A. M. It was then quite dark and visibility was poor. On the evening of December 28th, Sherwood, in a truck owned by Campbell, called at respondents' Vanduser gin to get a load of cotton seed to deliver to the Cairo mill. He loaded the truck and started to Cairo. At the point where the accident occurred the truck, in some way, was overturned in a road ditch along the side of the highway (No. 61). No portion of the truck or its cargo was left upon the slab or traveled portion of the highway. Sherwood left the overturned truck and its load, went to Sikeston and called a neighbor of Campbell's, requesting him to ask Campbell to bring another truck, owned by Sherwood, to the scene of the accident. That truck had printed upon it a sign "Haskins Gin Co.," although it in fact belonged to Sherwood. Campbell received and responded to Sherwood's call. When he arrived at the place where the truck had been overturned he did not find Sherwood there. The latter, it seems, had gone back to Sikeston to look for Campbell or to get assistance. Campbell, not finding Sherwood there, decided to go back to Sikeston to find Sherwood. While attempting to turn around on the highway the automobile, in which plaintiff's husband was riding as a guest, approached and collided with the truck and trailer which Campbell was driving. Deceased received injuries from which he died. From Campbell's testimony, introduced by plaintiff although Campbell was a defendant -- it appears that while he was in the act of turning and while the trailer portion of his outfit was on the right side of the black center line of the pavement and the tractor portion was up to or slightly over the black center line of the pavement, it "'bucked up and down' and stopped;" that he made unavailing efforts to start it, and, seeing the lights of an approaching automobile (in which deceased was riding) made efforts to warn and to stop that car, finally jumping out of its way to save himself when no attention was paid to his signals; and that said approaching car "skidded" against and struck the stalled truck.

Campbell took the wounded man to a doctor's office and later found Sherwood and told him of the accident. Sometime later in the day Sherwood, with help hired by him -- not including Campbell -- righted the overturned truck, reloaded the spilled cotton seed, and proceeded to deliver it to the mill at Cairo, in the truck in which it had originally started -- not the truck involved in the fatal accident.

The overturned truck did not belong to either Haskins, Sr., or Haskins, Jr. -- or to the partnership. It belonged to Campbell. Although the truck that stalled across the highway and with which the car in which deceased was riding collided had printed on it "Haskins Gin Co.," neither of the Haskinses had caused such lettering to be done or knew it was there or how it came to be there. They did not do business under the name "...