Atherton v. Kansas City Coal & Coke Company
| Decision Date | 16 May 1904 |
| Citation | 81 S.W. 223,106 Mo.App. 591 |
| Parties | MARY E. ATHERTON, Respondent, v. KANSAS CITY COAL & COKE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
Reversed.
Harkless Crysler & Histed, John Martin and Ross B. Gilluly for appellant.
(1) The act of Rentch through which the plaintiff was injured was not within the scope of his duty, but arose through an independent collateral arrangement between the plaintiff and Rentch, made for the purpose of serving the particular convenience of the plaintiff, and quoad such service Rentch became the servant of plaintiff. Wood on Master and Servant sec. 279; Walker v. Railroad, 121 Mo. 575; Snider v. Crawford, 47 Mo.App. 8; Adams v. Cost, 66 Md. 264.
E. J Sherlock for respondent.
(1) The issue as to whether the man who did the injury was the defendant's agent at the time of the injury was submitted squarely to the jury upon the evidence and instructions and as a question of fact it was solely within the province of the jury to determine this matter. Wilcox v. Hines, 100 Tenn. 524, 66 Am. St. 761.
In September, 1902, Mrs. Atherton, the plaintiff, who lived at 1308 Holmes street, in Kansas City, ordered of the defendant coal company four tons of coal to be delivered at her house. On September 9, 1902, a driver appeared upon the premises with the first load of coal, containing two tons, the coal being in a wagon which bore a painted sign of the defendant company. Mrs. Atherton instructed the teamster to drive to the alley and put the coal in a coalhouse standing upon the rear of the lot upon this alley. The coalhouse was divided into two compartments, one, the south, being used by Mrs Atherton, and the other, the north, being used by a neighbor. There was a connecting door between these compartments. Mrs. Atherton went into the coalhouse used by her and raised the door opening into the alley through which the coal was to be thrown, and paid the driver for the coal. She then told him that it was her purpose to pile in the doorway some large lumps of coal before he should unload and she would tell him when to stop. The driver assented to this arrangement and she asked him to throw in a number of lumps of coal to her for this purpose. Mrs. Atherton remained in the room and carried these lumps thrown to her by the teamster and piled them in the doorway. While she was...
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