Borah v. Zoellner Motor Car Co.

• Decision Date: 07 December 1923
• Docket Number: No. 3458.,3458.
• Citation: 257 S.W. 145
• Parties: BORAH v. ZOELLNER MOTOR CAR CO.
• Court: Missouri Court of Appeals

257 S.W. 145

BORAH v. ZOELLNER MOTOR CAR CO.

No. 3458.

Springfield Court of Appeals. Missouri.

December 7, 1923.

Rehearing Denied January 8, 1924.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by J. A. Borah against the Zoellner Motor Car Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. W. Thurman, of Joplin, for appellant.

J. D. Harris, of Carthage, for respondent,

COX, P. J.

Action for damages for personal injury. Verdict and judgment for plaintiff, and defendant appealed.

The plaintiff, while attempting to cross a street on foot at a regular street crossing in Joplin, was struck by an automobile driven by one J. L. Bridges, whom it is alleged was the agent and servant of defendant.

The first contention of appellant is that its demurrer to the testimony should have been sustained, because the petition is based on a violation of a city ordinance, and no ordinance was offered in evidence. The petition alleged as ground of negligence that the driver of the automobile was at the time of the collision driving at a high and dangerous rate of speed, to wit, 25 miles per hour upon a crowded street, and also failure to sound horn when approaching the crossing. The city ordinance was pleaded, and the charge made that the driver of the automobile was driving in violation of said city ordinance. We do not think, however, that the fact that a violation of the city ordinance was pleaded necessarily bound plaintiff to base his recovery solely upon that ground. We think the petition in this case charges common-law negligence as well as a violation of a city ordinance, and plaintiff could rely upon either or both. The ordinance was not offered in evidence, and no reference made thereto in the instructions to the jury. The plaintiff went to the jury upon the charge of a high and dangerous rate of speed upon a crowded street and failure to give warning as the automobile approached the crossing over which plaintiff was at the time passing. We think the petition and evidence warranted that position, and the demurrer to the evidence was properly overruled.

It is next contended that Bridges, the driver of the automobile that struck plaintiff, was not the agent and servant of defendant and in the line of his duty as such agent and servant in driving the automobile at the time plaintiff was struck. The evidence on that question is without substantial conflict. Mr. Bridges was placed on the stand by plaintiff, and Mr. Robertson, the president of defendant corporation, testified for defendant. Their testimony as to the nature of the employment of Bridges by defendant is practically the same, and tends to establish the following facts: Defendant's place of business is in the city of Joplin, and it is engaged in the business of selling Chevrolet automobiles. Bridges was in the employ of defendant as a salesman, and was compensated solely by the payment of a commission upon sales made by him. He went when and where he pleased. Defendant exercised no control over him whatever in the details of his salesmanship, but he sought his own customers, and made sales without any control of his actions by defendant, and without any suggestions from it in any way. He did, with the consent of defendant, as he testified, use machines belonging to defendant in going to see prospective purchasers. A short time prior to the alleged injury to plaintiff, Bridges had, as he thought, sold an automobile to a Mr. Turner, who had paid him $10 on the purchase, and was to meet Mr. Bridges at the place of business of defendant, on the evening of the day of the alleged injury to plaintiff, to close up the purchase. Turner did not appear as agreed, and Bridges got into a light truck belonging to defendant, and started to the home of Mr. Turner to try to close up the deal for the purchase of the car on which Mr. Turner had paid $10. On his way to Mr. Turner's, at the crossing of Fourth and Joplin streets in the city of Joplin, at or near 9 p. m., the collision with and injury to plaintiff occurred.

Upon the foregoing facts appellant contends that Bridges was upon business of his own, and was not the agent of defendant in going to see Mr. Turner. It is insisted that, since defendant exercised no control over Bridges in the details of his sales of machines, but allowed him to use his own judgment, find his own customers, and make sales in his own way, Bridges was acting for himself and not as agent for defendant at the time of the alleged injury to plaintiff.

It is not always easy to determine in a given case whether a party is acting independently or as agent for another. In construction work, the question of whether a party is an independent contractor or a servant is determined by whether he or the employer controls the manner and details of the work. If he controls the work, and is only responsible for the completed structure, and is paid for the completed work and not a per diem, he is an independent contractor. In automobile accident cases, the settled rule seems to be that, to hold the owner of the automobile liable for an injury that occurred when he was not...