Barnes v. Real Silk Hosiery Mills

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 58,341 Mo. 563
• Parties: Ernest Barnes, an Infant, by his next Friend, J. H. Barnes, v. Real Silk Hosiery Mills, a Corporation, and Ray Fergerson, Appellants
• Court: Missouri Supreme Court

108 S.W.2d 58

341 Mo. 563

Ernest Barnes, an Infant, by his next Friend, J. H. Barnes, v. Real Silk Hosiery Mills, a Corporation, and Ray Fergerson, Appellants

Supreme Court of Missouri

July 30, 1937

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed as to defendant Real Silk Hosiery Mills and affirmed as to defendant Fergerson.

Sprinkle & Knowles and Paul C. Sprinkle for appellants.

(1) The court erred in refusing appellant Real Silk Hosiery Mills' demurrer at the close of plaintiff's evidence. The court erred in refusing appellant Real Silk Hosiery Mills' demurrer to the evidence at the close of all the evidence. Phillips v. Western Union Tel. Co., 195 S.W. 711; Burgess v. Garvin, 272 S.W. 108; Calhoon v. Mining Co., 209 S.W. 318; Gordner v Screw Co., 210 S.W. 930; Ritchey v. Western Union Tel. Co., 41 S.W.2d 628; McCaughen v. Railroad Co., 274 S.W. 97; Lajoie v. Rossi, 37 S.W.2d 684; Green v. Western Union, 58 S.W.2d 772; Byrnes v. Printing Co., 74 S.W.2d 20; Halsey v Metz, 93 S.W.2d 41; Chiles v. Life Ins. Co., 91 S.W.2d 164; Rohrmoser v. Finance Co., 86 S.W.2d 103; Maltz v. Cap Co., 82 S.W.2d 909; Margulis v Stamping Co., 23 S.W.2d 1049; Gayle v. Foundry Co., 76 S.W. 987; Stein v. Grease Co., 39 S.W.2d 345; Sargent v. Clements, 88 S.W.2d 174; Manus v. Distributing Co., 74 S.W.2d 506; Coul v. Peck D. G. Co., 32 S.W.2d 758. (2) The court erred in allowing respondent to introduce testimony in violation of the parol evidence rule. Rogers v. Fremder, 261 S.W. 105; Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1049; Johnson v. Schuchardt, 63 S.W.2d 17; Sundmacher v. Lloyd, 89 S.W. 368; Sims v. Gilmore, 130 S.W. 1120.

Louis Wagner, Cowgill & Popham and John F. Cook for respondent.

(1) There is nothing before this court to review on this appeal because appellants do not, either in their assignments of error or points and authorities, distinctly allege the particular error, if any, committed by the trial court or give any reason for their claims of error and, therefore, this court will either dismiss the appeal or treat as abandoned such points and assignments because not properly presented for review under the rules of this court. Scott v. Mo. Pac. Ry. Co., 62 S.W.2d 840; Aulgur v. Strodtman, 46 S.W.2d 172; Moffett v. Butler Mfg. Co., 46 S.W.2d 873. (2) Appellant Real Silk Hosiery Mills cannot claim on this appeal that the trial court erred in refusing to give its peremptory instruction in the nature of a demurrer at the close of plaintiff's case because it did not stand on such ruling of the court, but proceeded to offer evidence under which circumstances it waived any point it might have had at that stage of the case and is relegated to the court's ruling on its demurrer at the close of all the testimony; which point is to be decided by giving the plaintiff the benefit of all reasonable inferences to be drawn from all of the testimony in the record and by rejecting all evidence and inferences unfavorable to plaintiff's case. Kelso v. Ross Const. Co., 85 S.W.2d 527; Knight v. Wabash Ry. Co., 85 S.W.2d 397; Tash v. St. L.-S. F. Ry. Co., 76 S.W.2d 695. (3) The trial court did not err in refusing appellant Real Silk Hosiery Mills' instruction in the nature of a demurrer at the close of all the evidence. Appellants' Assignments of Error I and II and Points and Authorities (1) and (2) do not properly present this point for review. Respondent here adopts the authorities cited under his Point (1). The evidence was sufficient to show the relationship of master and servant, principal and agent or employer and employee as a matter of law, or at least sufficient to establish such relationships in this case as a question to be decided by the jury and was sufficient to make a jury question as to whether defendant Fergerson was in the scope and course of his employment at the very time of plaintiff's injury. Appellants' trial theory was and they admit in their brief, page 12, that Fergerson could and that "the record conclusively shows that from the time a solicitor left the office he was free to go and come as he pleased. He could work whatever hours he desired, he could go to the place where he was to solicit by any means that he chose." They are bound by such trial theory and admissions. Kincaid v. Birt, 29 S.W.2d 97; In re McMenamy's Guardianship, 270 S.W. 662; Ostrander v. Messmer, 289 S.W. 609; Kelso v. Ross Const. Co., 85 S.W.2d 527; Margulis v. Natl. Enameling & Stamping Co., 23 S.W.2d 1049; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Borah v. Zoellner Motor Car Co., 257 S.W. 145; Burgess v. Garvin, 272 S.W. 108; Cholet v. Phillips Petroleum Co., 71 S.W.2d 799; Coffman v. Shell Petroleum Corp., 71 S.W.2d 97; Burgess v. Garvin, 272 S.W. 114; Borgstede v. Waldbauer, 88 S.W.2d 373; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 903; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Chiles v. Life Ins. Co., 91 S.W.2d 164; Gordner v. St. L. Screw Co., 210 S.W. 930; Linton v. St. L. Lightning Rod Co., 285 S.W. 183; Schmitt v. American Press, 42 S.W.2d 969.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for personal injury. Verdict for $ 10,000 was returned against defendants, and they separately appealed from the judgment entered.

October 18, 1932, plaintiff was struck on Prospect Avenue, Kansas City, Missouri, by an automobile driven by defendant, Fergerson, and it is claimed that, at the time plaintiff was injured, Fergerson was in the employ of the corporate defendant and acting within the scope of his employment, and that under the facts, both defendants were liable. The charges of negligence submitted to the jury were "high, dangerous and excessive speed under the conditions then and there existing," and that Fergerson "failed to keep a vigilant and careful lookout ahead for persons upon said street." Defendants separately answered by general denial.

Error is assigned on the refusal of separate demurrers to the evidence at the close of the case, on the admission of evidence, and on plaintiff's Instruction A.

The chief contention of the corporate defendant is that the evidence was not sufficient to make a submissible case against it under the doctrine of respondeat superior. The corporate defendant is a manufacturer of silk hosiery, etc., and has its principal office in Indianapolis, Indiana, and has a branch office in Kansas City, Missouri. Defendant Fergerson's home was in St. Joseph, Missouri, but at the time of plaintiff's injury he (Fergerson) was a salesman of his codefendant, and, in his own car, was on his way to the territory in Kansas City that had been assigned to him, and this was his first trip out. A copy of the contract between the defendants was in evidence. We might say here that plaintiff objected and excepted to the introduction of the copy, but without detailing the evidence as to the competency of the copy, we think it is sufficient to say that it was properly admitted.

For convenience, we hereinafter refer to the corporate defendant as the Mills, as appears in the body of the contract and also in the briefs.

By the contract, Fergerson agreed to solicit orders from day to day for the Mills in the territory assigned to him "upon the terms and conditions" of the contract, and he agreed to deposit $ 3 for sample case and contents or furnish a satisfactory guarantor for $ 10, the value of the sample case and contents. Fergerson was to deliver all orders taken by him to the Mills in Indianapolis, or to the Kansas City branch manager. The orders were to be taken "only on order blanks furnished by the Mills, and upon the prices, terms and conditions named in such order blanks or in such printed price lists, schedules or instructions as may be issued by the Mills from time to time, the Mills reserving the right to change such prices, terms and conditions whenever it sees fit." When Fergerson took an order, he was to collect "as first payment the amount of the deposit specified in the order blanks" or in printed instructions "as may be issued by the Mills from time to time." The first payment to be collected by Fergerson constituted "his entire and sole compensation," and no order was to be taken without the "first payment" being made. "Violation of any rule or regulation governing profit sharing automatically disqualified him from any amounts of profit sharing which may be due him up to and including the date of such violation."

All equipment and samples remained the property of the Mills and use thereof by Fergerson was permitted only while he was "selling the products of the Mills." The contract further provided: "It is distinctly understood that this contract constitutes an original and independent undertaking on the part of the undersigned, and, subject to the provisions hereof, he shall at all times be free from the control or direction of the Mills as to the time when he shall solicit orders.

"This contract contains all the terms of agreement between the parties, and no other agreement shall be binding unless in writing and signed by the undersigned and an officer at the Mills in Indianapolis. No branch manager or other agent or employee has the right or authority to bind the Mills by any agreement other than the one signed below by the parties hereto.

"This agreement may be terminated by either party upon two days notice to the other, and the undersigned agrees that for a period of six months after any termination of this agreement he will neither sell nor solicit the sale of hosiery or lingerie direct to the wearer, within the territory hereinabove referred to."

Fergerson called by plaintiff, testified that he became a salesman for the Mills, October 17, 1932, by answering an ad in a Kansas City...