Becker v. Donahue, No. 26281.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMcCullen
Citation168 S.W.2d 960
Decision Date02 March 1943
Docket NumberNo. 26281.
PartiesBECKER v. DONAHUE et al.
168 S.W.2d 960
BECKER
v.
DONAHUE et al.
No. 26281.
St. Louis Court of Appeals. Missouri.
March 2, 1943.
Rehearing Denied March 19, 1943.

[168 S.W.2d 961]

Appeal from St. Louis Circuit Court; James F. Nangle, Judge.

"Not to be reported in State Reports."

Action by William Becker against William A. Donahue, Jr., and the Laclede Gas Light Company to recover for injuries allegedly sustained by plaintiff and his wife in an automobile collision. From a judgment in favor of the Laclede Gas Light Company, the plaintiff appeals.

Judgment affirmed.

Lloyd E. Boas, of St. Louis, for appellant.

Moser, Marsalek & Dearing and J. C. Jaeckel, all of St. Louis, for respondents.

McCULLEN, Judge.


Plaintiff-appellant brought this suit against William A. Donahue, Jr., and the Laclede Gas Light Company to recover damages for personal injuries and damages alleged to have been sustained by him and his wife resulting from a collision between plaintiff's automobile, in which he and his wife were riding, and an automobile owned and driven by defendant Donahue. The trial court sustained the demurrer to the evidence offered by defendant the Laclede Gas Light Company at the close of plaintiff's case, and the jury, under the court's direction, returned a verdict in favor of defendant the Laclede Gas Light Company. The jury also found in favor of plaintiff, and against defendant Donahue, in the sum of $350 for his own injuries and $150 for injuries to his wife. Plaintiff's motion for a new trial as to defendant the Laclede Gas Light Company having been overruled, he duly appealed.

The sole issue involved in this appeal is whether the evidence was sufficient to present a question for the jury as to the liability of defendant the Laclede Gas Light Company under the doctrine of respondeat superior.

The petition of plaintiff alleged that defendant William A. Donahue, Jr., was employed by the Laclede Gas Light Company as a salesman and was at all times mentioned therein engaged and acting within the scope of his employment; that on January 4, 1941, he operated his automobile southwardly along Grand Boulevard near the intersection of Grand Boulevard and Blaine Avenue in the City of St. Louis, and negligently caused it to collide with plaintiff's automobile, thereby causing the injuries to plaintiff and his wife complained of in plaintiff's petition. Defendant the Laclede Gas Light Company answered both counts of plaintiff's petition by general denials and general pleas of plaintiff's contributory negligence.

Plaintiff called as a witness in his behalf George D. Rosenthal, supervisor of sales for the Laclede Gas Light Company in south St. Louis, who testified that at the time of the trial defendant Donahue had been under his supervision as a salesman of ranges and refrigerators for about four years, including the day of the accident; that Donahue received no salary but was on a straight commission basis; that the Laclede Gas Light Company, hereinafter referred to as the company, supplied Donahue with books, circulars, sales literature, order blanks, rules and demonstration equipment and instructed him to use them in connection with his sales work; that the

168 S.W.2d 962

terms upon which the products of the company were sold were dictated by the company and Donahue had no authority to sell on any other terms; that Donahue was assigned to a territory in the southern part of the City of St. Louis bounded on the north by Arsenal Street, on the south by Meramec Street, on the west by Grand Avenue, and on the east by the Mississippi River; that he was guaranteed a commission on all sales of the company's ranges or refrigerators in that territory; that Donahue was also permitted to sell the company's products any place in St. Louis and received a three per cent. commission on sales made outside his territory; that nine other salesmen did the same kind of work as Donahue and were under the supervision of the witness; that Donahue and said other salesmen were required to report at 8:30 each morning at the company's sales office where a general sales meeting was held; that the duties of the salesmen were to solicit orders for ranges and refrigerators, and they were supplied with the names of prospects which were derived from various sources; that the witness had authority, as Donahue's supervisor, to discharge him at any time; that the names and addresses of prospective purchasers were obtained by the company through inquiries by telephone and in its display room from the floor men, and that cards were made out on such prospects and handed to the salesmen through Rosenthal, or were placed in the baskets of the salesmen who had been assigned to territories where the prospects were located; that if the prospect desired to have a salesman call at a particular hour, the information would be noted on the prospect's card and the salesman would be thereby automatically directed by the card to make the call at that time; that the company also had authority to direct Donahue to call on customers who had made complaints about merchandise already purchased from the salesmen and installed.

The witness further testified that eight of the ten men under his supervision, including Donahue, owned automobiles and used them in connection with their work; that he had not objected to their use of automobiles in performing their work and had not been instructed by his superiors to request the salesmen to refrain from such use; that there was a general rule of the company that employees should turn in reports of automobile accidents, and that the men under the witness's supervision had been so instructed; that the witness had authority to tell the salesmen to bring prospects to the company's display room in their automobiles; that it was customary for the salesmen to make calls at night and that possibly seventy-five per cent, of the calls were made at that time and the company had knowledge of such practice; that the salesmen owning automobiles did not and do not receive any allowance for the maintenance or upkeep thereof, and that the company did not require as a condition of employment that the salesmen own or use automobiles; that he had authority to direct Donahue to pick up prospects and bring them down to the display room to see the merchandise on display there; that salesmen had the right to make sales anywhere in the City of St. Louis, but that practice was discouraged, and if a sale was made by a salesman outside of his territory, he received only three per cent. commission, the balance thereof being paid to the salesman to whom the territory in which the sale was made had been assigned; that if the last mentioned salesman had already recorded having contacted the prospect, the one making the sale did not receive any part of the commission; that during the general sales meeting at the company's office at 8:30 each morning questions arising during the preceding day's work were brought up and taken care of; that the salesmen were supposed to go to their respective territories after such meetings, but they did not have any fixed hours to work; that each salesman managed his time strictly according to his own method.

Rosenthal further testified that he would like to have the salesmen devote whatever time was necessary to business in the hope that they would sell the merchandise, but that he had no control over their time or their movements after they left the company's office; that the only way he had of knowing how the salesmen employed their time was by the results shown.

Defendant William A. Donahue, Jr., called as a witness for plaintiff, gave testimony which corroborated that of Rosenthal with respect to his duties and the manner of carrying on the work of selling the company's products, as well as the arrangements for payment for his service on a commission basis....

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3 practice notes
  • Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co., No. 21736
    • United States
    • Missouri Court of Appeals
    • 6 Octubre 1952
    ...and solely for his own purposes when the accident occurred. In support of this contention defendant cites Becker v. Donahue, Mo.App., 168 S.W.2d 960, where the plaintiff sued the defendant company to recover damages for personal injuries alleged to have been caused by the negligence of the ......
  • Friedman v. John Hancock Mut. Life Ins. Co., No. 26209.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Marzo 1943
    ...he was talking about, that he could get the policy through because it was a nonmedical". Later Ralph testified that when Gray told 168 S.W.2d 960 them he thought he could "put this application through because it was nonmedical", he replied to Gray, "If you think you can ......
  • Rubinelli v. Union Electric Light & Power Co., No. 26799.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1945
    ...was employed. A reading of the record herein shows that plaintiff failed to meet either of said requirements. Becker v. Donahue, Mo.App., 168 S.W.2d 960; Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d 79; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R.......
3 cases
  • Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co., No. 21736
    • United States
    • Missouri Court of Appeals
    • 6 Octubre 1952
    ...and solely for his own purposes when the accident occurred. In support of this contention defendant cites Becker v. Donahue, Mo.App., 168 S.W.2d 960, where the plaintiff sued the defendant company to recover damages for personal injuries alleged to have been caused by the negligence of the ......
  • Friedman v. John Hancock Mut. Life Ins. Co., No. 26209.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Marzo 1943
    ...he was talking about, that he could get the policy through because it was a nonmedical". Later Ralph testified that when Gray told 168 S.W.2d 960 them he thought he could "put this application through because it was nonmedical", he replied to Gray, "If you think you can ......
  • Rubinelli v. Union Electric Light & Power Co., No. 26799.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1945
    ...was employed. A reading of the record herein shows that plaintiff failed to meet either of said requirements. Becker v. Donahue, Mo.App., 168 S.W.2d 960; Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d 79; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R.......

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