Bass v. Kansas City Journal Post Co.

• Decision Date: 13 March 1941
• Docket Number: 37203
• Citation: 148 S.W.2d 548,347 Mo. 681
• Parties: Harvey Lee Bass and Mabel Bass, Appellants, v. Kansas City Journal Post Company, a Corporation
• Court: Missouri Supreme Court

148 S.W.2d 548

347 Mo. 681

Harvey Lee Bass and Mabel Bass, Appellants, v. Kansas City Journal Post Company, a Corporation

No. 37203

Supreme Court of Missouri

March 13, 1941

Rehearing Denied February 14, 1941.

Motion to Transfer to Banc Denied March 13, 1941.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Alfred H. Osborne, Will H. Hargus, C. E. Groh and Rosenberg, Hargus & Koralchik for appellants.

(1) There is substantial evidence in the record to prove that the relation of master and servant existed between defendant and Arthur Brown, the carrier. Skidmore v. Haggard, 110 S.W.2d 726; 75 A. L. R. 726; Hoelker v. American Press, 296 S.W. 1008, 317 Mo. 64; 39 C. J. 1362, sec. 1592; Semper v. American Press, 273 S.W. 186, 217 Mo.App. 55; State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059; 20 A. L. R. 761; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909, 336 Mo. 1000; Speed v. A. & Pac. Railroad Co., 71 Mo. 303; Vert v. Met. Life Ins. Co., 117 S.W.2d 252, 342 Mo. 629. (2) Plaintiff's son sustained fatal injuries while Brown, the carrier, was acting within the scope of his employment as defendant's servant. Vert v. Met. Life Ins. Co., 117 S.W.2d 252, 342 Mo. 629; 19 A. L. R. 270; Borgstede v. Waldbauer, 88 S.W.2d 373, 337 Mo. 1205. (3) Defendant is liable for the injury caused by the act of Thompson, the driver, even though Brown, the carrier, was not authorized to delegate this part of his duties to Thompson. Blumenfeld v. Meyer-Schmid Gro. Co., 230 S.W. 132, 206 Mo.App. 509; Semper v. American Press, 273 S.W. 186, 217 Mo.App. 55; Mechem, Outlines of the Law of Agency (3 Ed.), pp. 339, 340, sec. 513. (4) Even though Noel Bass, the deceased, at the time of his death occupied no better status with respect to defendant than that of a trespasser, still defendant is liable to plaintiffs since the acts causing death were wanton and reckless. Bobos v. Kray Packing Co., 296 S.W. 157, 317 Mo. 108; Stipetich v. Security Stove & Mfg. Co., 218 S.W. 964; Galba v. Payne, 253 S.W. 137. (5) The court erred in not permitting plaintiffs to introduce evidence showing that defendant carried liability insurance against damages sustained as the result of any wrongful acts committed by Brown, the carrier, since such evidence was competent to prove the relationship between the two. 85 A. L. R. 784; Vaughn v. Davis & Sons, 221 S.W. 782; State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883. (6) In ruling upon defendant's demurrer to the evidence, every fact which plaintiffs' evidence tends to prove must be taken as true, plaintiffs are entitled to the benefit of every reasonable inference therefrom, defendant's evidence must be disregarded except insofar as it tends to aid plaintiffs' case, and the demurrer can be sustained only when the facts, evidence and legitimate inferences therefrom are so strongly against plaintiffs as to leave no room for reasonable minds to differ. Young v. Wheelock, 64 S.W.2d 950, 333 Mo. 992; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284.

Clay C. Rogers, Lyman Field and Moseman, Rogers & Bell for respondent.

(1) Arthur Brown, the carrier, was an independent contractor and dealer, for whose wrongs the defendant was not responsible. The court, therefore, properly directed a verdict for the defendant. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Carter Publications v. Davis, 68 S.W.2d 640; Post Pub. Co. v. Schickling, 22 Ohio App. 318, 154 N.E. 751; Bohanon v. James McClatchy Pub. Co., 16 Cal.App. (2d) 188, 60 P.2d 510; Bernat v. Star Chronicle Pub. Co., 84 S.W.2d 429; Coul v. Peck D. G. Co., 326 Mo. 870, 32 S.W.2d 758; McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 611; Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071; Semper v. American Press, 217 Mo.App. 55, 273 S.W. 186; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58; Igo v. Alford, 228 Mo.App. 457, 69 S.W.2d 317; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Manus v. Kansas City Distributing Co., 228 Mo.App. 905, 74 S.W.2d 506. (2) Defendant is not liable for any alleged negligence of Thompson. The status of Thompson was that of an independent contractor working for the independent contractor Brown. Riggs v. Higgins, 106 S.W.2d 1; Blumenfeld v. Meyer Schmid Grocery, 206 Mo.App. 509, 230 S.W. 132. (3) No relationship existed between Noel Bass and the defendant. Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Stipetich v. Mfg. Co., 218 S.W. 964; Miller v. Wilson, 288 S.W. 999; Winter v. Van Blarcom, 258 Mo. 418, 167 S.W. 498; Estes v. Estes, 127 S.W.2d 78; State ex rel. v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Berry v. Springfield, 13 S.W.2d 552. (4) On the question of liability insurance. There was no error committed regarding questions of liability insurance raised by plaintiffs at the trial. Dorsett v. Pevely Dairy Co., 124 S.W.2d 624.

OPINION

Hays, J.

This is an action for wrongful death under Section 3263, R. S. Mo. 1929, brought by the mother and father of Noel Bass, deceased, an unmarried minor. The circuit court, at the close of all of the evidence, directed a verdict for defendant. Plaintiffs appealed. It is conceded that Bass died as a result of injuries received by him in an accident when an automobile, in which he was riding and which was owned and operated by one Forrest Thompson, collided with another car traveling in the opposite direction. The evidence shows conclusively that the accident was caused by Thompson's negligence in driving to the left-hand side of the center line of the road and immediately into the path of the on-coming car. Contributory negligence was neither pleaded nor proved and the sole question for our decision is whether or not respondent is liable for the negligence of Thompson under the doctrine of respondeat superior.

The facts bearing upon this issue, as disclosed by the evidence most favorable to the appellants (plaintiffs below), are these: Respondent publishes daily newspapers. Its principal place of business is in Kansas City. Some six months before the accident here involved, one Arthur Brown, who was also an occupant of the Thompson car at the time of this collision, entered into an oral contract with respondent with regard to delivering papers within a designated area in Jackson County. The contract was negotiated on behalf of respondent by one Knud Elben, its district manager, and it is conceded that the negotiation of the contract was within the scope of his authority. Brown's testimony and that of Elben, with reference to the terms of the contract, is somewhat conflicting. We, of course, accept in this connection the evidence most favorable to plaintiffs and draw therefrom all reasonable inferences favorable to them. Under the contract Brown was to receive from respondent certain bundles of newspapers, each one of which was addressed to a carrier in a town in Brown's territory. He was to deliver these bundles to the addressees. For so doing he was to receive weekly from the respondent a specified sum. During the continuation of the contract this sum was changed by agreement, but at the time of the accident Brown was paid $ 22 per week. In addition to the bundles of papers, above mentioned, Brown was to get from respondent, at specified rate, certain other papers which he was to deliver to subscribers in his territory. The price of these papers, payable to respondent, was to be deducted each week from the $ 22 which respondent was to pay Brown. Brown thus received a weekly check for the difference between this amount and the $ 22. From each subscriber Brown received a fixed amount per week for the papers delivered to the customer, and he retained the money so received.

Whenever any person residing in Brown's territory contacted the Journal Post directly for a subscription the matter was referred by the paper to Brown, and any complaints received in the newspaper office in regard to the failure of a subscriber to get his papers were transmitted to Brown.

At the time the contract was made Elben pointed out to Brown that he would have to have an automobile in order to make these deliveries and Brown stated that he owned and would furnish a car for that purpose. Brown paid for the upkeep of the car and for the gasoline and oil used therein. There was no provision in the contract about the right of respondent to designate the route to be taken by Brown in making deliveries or in serving customers or about the right of respondent to specifically direct other details of the work. The record does not show that respondent ever attempted to exercise such right or to give any directions to Brown about the manner in which he should perform his work. There was nothing said by the parties about the duration of the contract. In the absence of such express stipulation either party was at liberty to terminate it at will. While Brown had gone over the route with a previous carrier, he had not purchased the route from this person but had negotiated solely and directly with Elben.

During the examination of Brown as a witness for plaintiffs the following occurred out of the hearing of the jury: "Mr Hargus: I want to inquire along this line, Judge. Mr. Rogers is here representing the Travelers Insurance Company. The Court: What is that? Mr. Hargus: Mr. Rogers is here representing the Travelers Insurance Company. He is defending this under some policy of insurance. I want to show by this carrier (Brown) that he did not carry the insurance, but that...