Burgess v. Garvin

• Decision Date: 09 February 1925
• Citation: 272 S.W. 108,219 Mo.App. 162
• Parties: PRESTON BURGESS, by His Next Friend, H. S. BURGESS, Respondent, v. B. W. GARVIN and L. B. PRICE MERCANTILE COMPANY, Appellant. *
• Court: Kansas Court of Appeals

272 S.W. 108

219 Mo.App. 162

PRESTON BURGESS, by His Next Friend, H. S. BURGESS, Respondent, v. B. W. GARVIN and L. B. PRICE MERCANTILE COMPANY, Appellant. *

Court of Appeals of Missouri, Kansas City

February 9, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

AFFIRMED.

Judgment affirmed.

Swearingen & Finnell for respondent.

Ryland Boys, Stinson & May and R. E. Ball for appellant Price Mercantile Company.

Clarence L. Hogin for defendant Garvin.

OPINION

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 5,000 and defendant has appealed.

The facts show that plaintiff was injured between 2:00 and 3:00 P. M. on the 18th day of May, 1920, by being struck by an automobile being driven by the defendant, Garvin, at 5th and Troup streets in Kansas City, Kansas. Defendant, L. B. Price Mercantile Company, insists that its instruction in the nature of a demurrer to the evidence should have been given because, first, there was no evidence tending to show that any relation of respondeat superior existed between it and its co-defendant; second, if such a relation was shown, its co-defendant was acting without the scope of his authority at the time of the collision, and, third, there was no evidence upon which to submit the case to the jury on the humanitarian doctrine, or upon any other theory. Defendant, Garvin, adopts all the points made by his co-defendant except those inapplicable to him.

We shall first state the evidence on the question as to whether the relation of respondeat superior existed between the defendants. The evidence shows that Garvin was employed by his co-defendant to sell on commission certain goods handled by defendant mercantile company, which consisted of small rugs, curtains, silverware and household specialties, and in carrying out this work Garvin used an automobile owned, controlled and operated by him at his own expense. It was while operating this automobile that he struck plaintiff, as aforesaid. One Farr was riding with Garvin at the time of the collision and had been with him all of that day transacting the business in which Garvin was engaged in Kansas City, Kansas. There was testimony that Farr was being "broken in" by Garvin, that the former was in the mercantile company's "organization" and that Garvin paid Farr a part of the commission on sales made by Farr. On the morning of May 18, 1920, Garvin and Farr went to the place of business of the mercantile company in Kansas City, Missouri, about eight or eight-thirty, where they procured a load of merchandise consisting of miscellaneous merchandise such as small rugs, curtains, silverware, etc. At the time of the collision Garvin had 250 pounds of these goods in the back end of his car, which was a five-passenger Ford automobile.

The canvassers of the mercantile company were required to take contracts in making sales, variously called, "leases," "mortgages" and "contracts." One of the contracts that was furnished Garvin and the other canvassers is a form of a chattel mortgage. The canvassers would sell goods on payments and take back from the buyer a mortgage for the part of the purchase price unpaid. These mortgages would be made in favor of the L. B. Price Mercantile Company. The one introduced in evidence (Exhibit 7) recited that it was taken for the balance of the purchase price of the property therein described and that the payments should be made to the Price Company; it provides against selling or removing the property and if default should be made in payment of any indebtedness of the mortgagor or any attempt to sell or attempt to remove the property, that it should be lawful for the mercantile company to take possession of the property and sell the same. It also recites "as further security, the undersigned also sells, assigns and transfers to said Company, all the salary, wages, commission, and demands due and to become due to me" as security for the payment of the indebtedness. At the bottom appears the following under the head of "NOTICE."

"Our canvassers are directed to take a contract from every customer. They have NO AUTHORITY to make any verbal contract with respect to the property herein contracted for. See that the price of the goods and the amounts credited on this lease correspond with your receipt. Our collector will show you the lease bearing your signature. Money paid to any other person is paid at your own risk." (Italics ours.)

Farr testified--

" . . I was in the employ at that time of the L. B. Price Company; my business was that of a salesman; Mr. Garvin was in the employ of the same firm in the same business; we were out on the business of the company that morning; we were selling house specialties; . . . we deliver goods, but make no collections; did not take any telephone orders or answer telephone calls to go to Kansas; other parties from the Price Mercantile Company would go and make the collections; do not remember that I ever sold for cash; sometimes took part payments with the orders; kept the money, using it at the time; didn't turn it in to the company; all that first payment went to the salesman; after that the payments went to the house; the salesman had no interest in the collections after the first payment; we got commissions, but that was paid after collecting on them; I do not remember of taking any orders without a first payment; . . . My compensation from the Price Company was just a percentage, no salary. The contract of sales was signed by the customers; do not know that it was signed by the company; I turned all of the contracts I took in to Mr. Garvin and he turned it in to the company, I believe; that was the business that I was in on that day, selling goods and making contracts."

W. C. Wall, field manager of the defendant company, testified that Garvin was "selling goods." soliciting for the company in May, 1920," that--

" . . 'The goods are consigned to the men on regular consignment slips and they take them out in their cars and when they are sold chattel mortgages are turned in to us and they are paid commissions on their sales. In places they use samples and in other places they take the stock. I don't know how it was with Garvin on May 18, 1920. They return what goods they don't sell.' There was nothing in the arrangement with Garvin as to his going from place to place; he is his own free lance or boss in that respect; there was nothing at all about how many customers he should see during the day and nothing as to whom he should solicit; there was no district or locality assigned to him; that day I believe it was reported he was in Kansas City, Kansas; when Garvin started to work for us I think he had a car, maybe bought it later on; I do not know anything as to what he did that day; I know very little about witness Farr. I think Garvin hired him, got him to come to work down there; the L. B. Price Mercantile Company did not hire Farr; . . . Mr. Garvin returned goods that he had left, that was on his hands and unsold, and got credit for them; I don't remember of Mr. Garvin's employing anybody except Mr. Farr; Mr. Garvin could hire men to work for him; Mr. Garvin was required to have instruments, or contracts, like Exhibit 7 for his customers; when signed they were turned in to the house and they go to record there; Mr. Garvin had nothing to do with them after they were filed; he had nothing to do with accounts after they were turned in; our regular authorized collectors collect on them; at times we repossess ourselves of the goods; all salesmen were treated the same. Mr. Garvin did not have any specified territory; he was not turned loose more than other salesmen were; he worked wherever he pleased; salesmen generally have authority to take contracts wherever they go; we are licensed to do business in Kansas; I don't know how many salesmen were in Kansas in May, 1920; I was manager at that time; salesmen work over in Kansas sometimes and sometimes on this side. Q. Did Mr. Garvin in making those trips over there with goods for sale come back and turn goods back to your company and get credit for them? A. If he was checking in, he would, yes. Q. What do you mean by checking in? A. Going to quit and go to work for somebody else, he would turn goods back to us that were consigned to him. Either that or pay us for them; he had the right to turn back unsold goods; if he did so would give him credit for them; . . . Q. I want to ask you if at the time the deposition was taken you didn't say we had a Mr. Alexander Farr? A. Mr. Alexander Farr was in the organization. 'Q. What was the nature of his employment and didn't you make this answer, Same as Mr. Garvin, he was working on Mr. Garvin's car? A. If it's down there I said it. Q. That's the way you said it? A. Yes. Q. I will ask you if this question was asked and this answer made. Question. 'Was he ever fully broken in and turned over territory. A. Yes, sir.' A. I don't believe he ever was. Q. Did you make that answer? A. You have got it down there. He only worked a short time for us at that time and as I remember he never had a stock of our goods out on his own. . . . the goods are consigned to these men and they take them out and sell them; they are commissioned merchants and they report the business to us; the goods are charged to them and are checked out to them. The goods that are set aside and charged to Mr. Garvin are for him to sell; if they are not sold they are turned in and his account credited; he gets a commission on whatever sales he makes, then the goods that he sells are charged to the party to whom he sells them; we have lease forms that we use down there; all the salesmen use the same form; the salesmen...