Cholet v. Phillips Petroleum Co.

• Citation: 71 S.W.2d 799
• Decision Date: 21 May 1934
• Docket Number: No. 18068.,18068.
• Parties: CHOLET v. PHILLIPS PETROLEUM CO.
• Court: Court of Appeal of Missouri (US)

71 S.W.2d 799

CHOLET v. PHILLIPS PETROLEUM CO.

No. 18068.

Kansas City Court of Appeals. Missouri.

May 21, 1934.

Appeal from Circuit Court, Vernon County; Chas. A. Hendricks, Judge.

"Not to be published in State Reports."

Action by Jacqueline Cholet against the Phillips Petroleum Company and another. From a judgment for plaintiff against named defendant, the latter appeals.

Affirmed.

Hallett & Hallett, of Nevada, Mo., and Carl J. Marold, Lowell R. Johnson, and Henry M. Shughart, all of Kansas City, for appellant.

Jacobs & Henderson and Thos. E. Deacy, all of Kansas City, and Dan Z. Gibson, of Nevada, Mo., for respondent.

SHAIN, Presiding Judge.

Jacqueline Cholet, plaintiff, brought this suit against the Phillips Petroleum Company a corporation, and A. C. Stratton, defendants, seeking to recover damage by reason of personal injuries alleged as received by the plaintiff as a result of a collision between a car in which she is alleged as occupying as a passenger and an autotruck being driven by one R. E. Ferguson. The truck was owned by A. C. Stratton and was equipped with an oil tank alleged as the property of the appellant, Phillips Petroleum Company.

The plaintiff presents for her cause of action that on the 24th day of October, 1932, she was riding as a passenger in an automobile owned and controlled by her husband and was traveling on state highway No. 54 in a westerly direction at a place where Hickory street in the town of Nevada, Vernon county, Mo., which street runs north and south, crossed said highway No. 54. Plaintiff states that she was riding in the rear seat of said automobile when the same was run into and against with great force and violence by the aforesaid truck alleged as owned by defendants and as operated by an agent, servant, and employee of the defendants.

Plaintiff alleges negligence in that said truck was negligently being operated on Hickory street into intersecting highway No. 54 without stopping to see whether or not there were other people on said highway who might be in a position of being struck; that the truck was negligently operated at the rate of 20 miles an hour out into said highway; that the truck was being negligently operated on the wrong side of the road and thereby negligently caused to come with force upon and against the automobile in which plaintiff was a passenger. Plaintiff further pleads that said agent of defendants either saw or could, by the exercise of due care, have seen plaintiff in a position of peril in time to have, by the exercise of care and caution, avoided running into the automobile in which she was a passenger; but that he negligently failed to stop and, as a result of said negligence, plaintiff was injured. Plaintiff further pleads that defendant negligently failed to give warning, and also violated the "Rules of the Road and Traffic Regulations," as set forth in section 7777, R. S. Mo. 1929 (Mo. St. Ann. § 7777, p. 5213).

Plaintiff sets forth her injuries as caused by aforesaid negligence, as follows: Bruised, contused, and injured over her entire body, scalp wounds, injury to the back of head and upper vertebræ near the base of the skull; that she suffers headaches, nervousness, dizzy spells, partial loss of hearing in one ear, eyesight affected and lasting shock to entire nervous system permanent in character and other injuries permanent and otherwise.

There appears to have been a dismissal, as to defendant A. C. Stratton. The issues were made up and cause tried on plaintiff's petition and answer filed by Phillips Petroleum Company, a corporation.

Phillips Petroleum Company, a corporation, defendant, for answer denies that A. C. Stratton was, at the time of the happening of the injuries, in its employ, denies that he was the agent, servant, or employee in any capacity whatever or was in line of duty as agent or employee of the defendant Phillips Petroleum Company; further, denies that he was driving a truck or automobile belonging to said defendant either for or on behalf of said defendant at the time of the alleged injury.

Defendant further denies the injury was had at the time and place and in the manner pleaded by plaintiff and alleges that the injuries received, if any, were due to the negligence of plaintiff. Defendant answers further by averring that injury, if any, was due to the negligence of Paul Cholet, plaintiff's husband, who was driving the car in which plaintiff was riding; that the negligence of Paul Cholet was chargeable to the plaintiff, for the reason that plaintiff and Paul Cholet, her husband, were at the time engaged in a joint enterprise; and that the automobile in which plaintiff was injured, if injured, was at said time and place under the joint and common control of the plaintiff and her husband. Defendant further avers by way of defense that the said car was being operated at excessive speed, not with the highest degree of care, and was not kept to the right-hand side of the roadway as practicable but to the left of the center of the highway. Defendant further charges negligence in plaintiff's failure to warn of approach.

Trial was by jury resulting in a verdict for plaintiff in the sum of $5,000. Judgment was entered in conformity to jury verdict and defendant Phillips Petroleum Company has appealed.

Opinion.

The appellant, Phillips Petroleum Company, defendant, in its brief makes seventeen assignments of error in numerical order giving no assignment of reason, reference to record, or citation of authority. We need not cite authority that such presentation gives nothing specific for us to review. The defendant, however, under its points and authorities, presents specific claims of error under seven subheads wherein the requirements for review are fully met.

The record in this case presents evidence on the part of plaintiff as to the happenings at the scene of accident, as to the injuries received by the plaintiff, and shows evidence on the part of defendant as to the occurrences at the scene of the accident. There is no specific presentation to the effect that an issue of fact was not raised for the jury as between the driver of the truck and plaintiff. It is contended, however, that the issue of contributory negligence should have been submitted. In other words, the appellant, Phillips Petroleum Company, is denying liability on the grounds that the operator of the truck was not its agent, servant, or employee, and further on the ground that the plaintiff, if injured, was injured by the negligence of her husband who was engaged in a joint enterprise with her.

Defendant's first complaint is that its demurrer should have been sustained at the close of all the evidence, because it cannot, as a matter of law, be charged with the negligence of the employee A. C. Stratton, who defendant contends was an independent contractor and not the agent, servant, or employee of defendant.

Defendant's second complaint is that its demurrer should have been sustained at the close of all the evidence, because plaintiff's injuries, if any, are shown to have been caused by the contributory negligence of her husband with whom she was engaged in a joint enterprise.

Defendant's third complaint is as to the refusal of its instruction D, which interposed the question of an independent contractor to the jury, as an issue of fact, to be determined by the jury.

Defendant's fourth and fifth claims of error are as to the refusal to give a series of instructions E, F, I, J, K, and L, which instructions impute to the plaintiff the negligence of the husband who was driving.

Defendant's sixth claim of error is as to the refusal of its instructions G and H, said instructions defining right of way.

Defendant's seventh claim of error is based on permitting the plaintiff to submit her case without instructing the jury as to plaintiff's theory of liability, in that there were allegations of negligence in plaintiff's petition which were not supported by any evidence, therefore, the jury would be confused as to the facts to be decided by it.

As to defendant's first point, this court has been frequently confronted with the question as to whether or not contracts, very similar to the one in this case, created such an agency as to place liability on the party or company executing the same for the wrongful acts of the party, who is designated as agent in said contract.

The contract in this case is headed "Commission Contract." Under the head of "Compensation," the following appears:

"This Company agrees to pay the Agent, and the latter agrees to accept, as full compensation, for his services as said Agent, and for all other expense incurred by him under this agreement, the following commissions on the commodities authorized to be sold, delivered and collected for said Agent. * * *"

There follows a schedule of per cent. to be received by the agent on various products furnished by the company to be sold by him.

The contract contains a clause, as follows:

"Said Agent is to be governed strictly in making sales by instructions issued by Division Manager from time to time, at the prices fixed by the Manager, both in writing, and whenever the Agent's commission is divided with the buyer this appointment is immediately revocable at the option of the Company. The Agent hereby agrees to take due and proper care of and be responsible for all property of the Company entrusted to his...