Beckwith v. Standard Oil Co.

• Decision Date: 11 July 1955
• Docket Number: No. 44608,No. 1,44608,1
• Citation: 281 S.W.2d 852
• Parties: Thomas B. BECKWITH (Plaintiff), Respondent, v. STANDARD OIL COMPANY, a Corporation, and William Lee Gooding (Defendants), Appellants
• Court: Missouri Supreme Court

Page 852

281 S.W.2d 852

Thomas B. BECKWITH (Plaintiff), Respondent, v. STANDARD OIL COMPANY, a Corporation, and William Lee Gooding

(Defendants), Appellants.

No. 44608.

Supreme Court of Missouri, Division No. 1.

July 11, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 12, 1955.

John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for defendant-appellant, Standard Oil Company.

James R. Anderson, St. Louis, for defendant-appellant, William Lee Gooding.

Dewey S. Godfrey, David F. Monahan, Jr., St. Louis, Rudolph K. Schurr, St. Louis, of Counsel, for plaintiff-respondent, Thomas B. Beckwith.

HOLMAN, Commissioner.

Action for damages arising out of an automobile collision. Plaintiff (respondent), Thomas B. Beckwith, obtained a verdict and judgment for $13,000 against defendants, Ray Konold, Jr., William Lee Gooding and Standard Oil Company for the death of his wife, and personal injuries to himself. Gooding and Standard Oil Company have appealed.

The collision occurred at about 11 p. m., on May 15, 1953, at the intersection of Brannon and Devonshire Avenues in St. Louis, Missouri. The weather was fair and the streets dry. Plaintiff and his wife were in the back seat of a Plymouth car being drive south on Brannon by defendant Konoid. Kenneth Vickery was riding in the front seat with the driver. The other car involved, a Chevrolet owned by Standard Oil Company and operated by Gooding, was going west on Devonshire. This street is 40 feet wide and Brannon is about the same width of a little narrower.

Konold approached the intersection at a speed of from 30 to 55 m. p. h. When about 20 feet from Devonshire he slowed to 20 m. p. h. and, looking east, saw (according to Konold and Vickery) the Gooding car 100 feet away. He presumed he had enough time to cross safely and therefore increased his speed and proceeded across Devonshire. The collision occurred just southwest of the center of the intersection. Konold testified that his brakes were in good condition and that at 20 m. p. h. he could stop in about 25 feet, and at 30 m. p. h. in 30 or 35 feet. He did not swerve before the collision. No horn or other warning was sounded from either car. There were no stop signs at the intersection.

Gooding testified that he turned into Devonshire one block east of Brannon. He was driving in the westbound lane at a speed which was between 25 and 30 m. p. h. When about 25 feet from the intersection he saw the Konold car about 100 feet to the north on Brannon. He immediately applied his brakes and swerved to the left in an effort to avoid and Konold car. His car slid in a southwesterly direction and the cars collided. The contact was between the right front of the Gooding car and the left side of the car driven by Konold. At the time of the collision Gooding felt that his car had practically stopped. At that time Konold was going 30 m. p. h. The force of the collision turned the Gooding car over on its right side and spun it around so that it was headed east. The other car jumped the curb and slid sideways into a building on the southwest corner of the intersection. The testimony of Robert W. Wolters, a passenger in the Chevrolet, was substantially the same as that of defendant Gooding. Plaintiff's wife died on May 18, 1953, as a result of injuries sustained in the collision.

The first point briefed by defendant Standard Oil Company is that the trial court erred in denying its motions for a directed verdict. In support of this assignment it is argued that Gooding, at the time of the collision, was not engaged in transacting any business for Standard Oil but was using the car for his own private purposes. We will accordingly state the facts bearing upon this feature of the case and about which there is no dispute.

Defendant Gooding was employed as a salesman by Standard, his duties being to call upon Standard Oil dealers and to sell them company products. He was furnished the car in question for use in his work. No permission was given to use it for other purposes. He was allowed to keep the car at his home overnight. The sales manager gave him permission to drive it from the place of making his last call in the evening to his home and, in the morning, to drive from his home to his first business call. He did not generally go to the office unless specially requested to do so.

On May 15, 1953, there was a dinner party at the Melbourne Hotel in honor of Mr. Poole, the assistant manager of the St. Louis Sales Division, who was being transferred to another locality. It was a company function and was paid for by the company. Gooding was not ordered to attend, but was told by one of his superiors that it would be a good idea for him to do so. After making his last call for the day, Gooding went to the company's office at 314 N. Jefferson, and from there to the Melbourne Hotel, at Grand and Lindell, where he attended the dinner party.

Robert Wolters was employed by Standard in the credit department. At night he attended St. Louis University Law School which is located near the Melbourne Hotel. He was invited to attend the party but declined because he had to attend school that evening. He finished his school work about 9:30 and walked to Grand Avenue to get a bus. At that time he happened to remember the party and decided to go over and congratulate Mr. Poole. Wolters visited with those present for about 45 minutes. As he started to go home he met Gooding in the lobby and either asked if Gooding were going to Kingshighway or Gooding offered to take him to that point. Gooding and Wolters were friends and at one time had attended the same school. Wolters lived at 5239 Nottingham, which is 3 or 4 miles south of Kingshighway and Lindell.

Gooding lived in Overland, in St. Louis County. In order to go from the Melbourne to his home he would drive west about 10 miles and then 4 or 5 miles north.

Upon leaving the Melbourne, Gooding first drove Mr. Jege, the sales manager, to the office of the company where he had left his car. The office was located about a mile due east of the hotel. During this ride Mr. Jege made no complaint about Wolters riding in the car. Nothing was said about it. After letting Mr. Jege out, Gooding drove west on Olive and Lindell to Taylor. At this point (which is near Kingshighway) he turned south on Taylor, saying, 'Oh well, I will take you (Wolters) home.' Wolters had originally intended to leave the car at Lindell and Kingshighway and take a bus to his home. Soon after turning south, Gooding got onto Kingshighway and drove south thereon for 3 or 4 miles to Devonshire and then west to the point of collision.

If defendant Standard Oil Company is to be held liable to plaintiff for the alleged negligence of Gooding, it must be under the doctrine of respondeat superior. Under this doctrine the employer is liable for the negligent acts or omissions of the employee while acting as such and within the scope of his employment. The test to be applied is not whether the negligent act was done during the term or period of employment but whether it was committed in the prosecution of the business of the employer. Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Stone v. Reed, Mo.App., 247 S.W.2d 325.

The only cases cited by plaintiff in support of the verdict and judgment against Standard are Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, and State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164. These cases hold that proof that the driver is a regular employee of the employer, and that the latter owns the automobile, raises a presumption that the employee was acting within the scope of his employment. However, these cases are not helpful to plaintiff because these and other cases go further and state that this presumption disappears upon the appearance of substantial evidence tending to show the facts. Gooding was called as a witness by plaintiff, and Wolters by defendant. Each of them testified fully concerning the facts relating to this issue. The facts shown by the evidence are undisputed and hence the determination of this issue becomes a question of law. Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240.

The general rule is that an employee is not engaged in work for his master when he uses an automobile belonging to the master in going to and from his place of work. Halsey v. Metz, Mo.App., 93 S.W.2d 41. However, we are not called upon to decide the question as to whether Standard would have been liable if this collision had occurred while Gooding had been driving on a more or less direct route to his home. This, because in the instant case it is obvious that Gooding had materially deviated from that route. Brown v. Moore, Mo.Sup., 248 S.W.2d 553. Had he not decided to take Wolters home he would have gone west and north of Lindell. We have already pointed out that when the collision occurred he was about 4 miles south of that point. Also, it is clear that it was not merely a circuitous journey to his home. Gooding testified that he intended to drive back on Kingshighway to the place of departure from his usual route.

From what we have said it becomes clear that, on the occasion in question, it cannot be held that Gooding was engaged in the pursuit of his employer's business unless it is because he was taking a fellow employee home following a company party. In this connection it should be noted that Wolters had not been in formal attendance at the function but had casually dropped in for a brief visit towards the end of the party. Perhaps we should also mention that there is nothing in the record to indicate that Mr. Jege, or any other official of Standard, gave consent or even had knowledge that Gooding was going to take Wolters home. The testimony indicated that nothing was said by or to Mr. Jege about the fact that Wolters was in the car.

We have concluded that at the time of this collision Gooding was not discharging any duty he owed to Standard Oil...