Cloninger v. Wolfe

• Decision Date: 09 February 1972
• Docket Number: No. 9107,9107
• Citation: 477 S.W.2d 440
• Parties: William H. CLONINGER, Plaintiff-Appellant, v. James WOLFE, Defendant-Respondent, and William L. Larson, a/k/a Wilbur L. Larson, Defendant.
• Court: Missouri Court of Appeals

Page 440

477 S.W.2d 440

William H. CLONINGER, Plaintiff-Appellant, v. James WOLFE, Defendant-Respondent and William L. Larson, a/k/a Wilbur L. Larson, Defendant.

No. 9107.

Missouri Court of Appeals, Springfield District.

Feb. 9, 1972.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 24, 1972.

Application to Transfer Denied April 10, 1972.

Horace S. Haseltine, Haseltine & Springer, Springfield, Harvey B. Cox, Jr., Cox, Cox, Cox, McEnery & Wallace, St. Louis, for plaintiff-appellant.

Amos Wight, Ewing, Ewing, Carter, Wight, Woodfill & Middleton, Nevada, Robert L. Ross, Columbia, for defendant-respondent.

TITUS, Chief Judge.

A farm-type tractor owned by Wolfe and operated by Larson, either slid or was driven backward down a paved lakeside launching ramp and injured Cloninger who subsequently sued Wolfe and Larson for $50,000 damages. A jury could not agree on a verdict, and within fifteen days after it was discharged Wolfe moved for judgment in accordance with his motion for a directed verdict made at the close of all the evidence. V.A.M.R. 72.02. The motion was sustained and judgment entered accordingly. Thereafter, by leave of court, Cloninger filed an amended petition wherein he averred his damages were $25,000. Larson answered this pleading but did not appear in person or by counsel when the cause was court-tried and a $25,000 judgment for Cloninger was entered against Larson. The lone appeal in this case is by Cloninger from the judgment entered in favor of Wolfe and the dispositive question is whether a jury, rather than a court, should decide if Larson was a servant of Wolfe at the time of the casualty so as to make Wolfe liable for Larson's alleged negligence under the doctrine of respondent superior. ¹

In determining whether the trial court erred in entering judgment for Wolfe as asked in his motion for a directed verdict, we are bound to consider and recast the testimony in the light most favorable to Cloninger's point of view and afford him the benefit of every reasonable and favorable inference which the evidence tends to support. Mathes v. Trump, Mo., 458 S.W.2d 297, 298(1), and cases collected in 3A West's Missouri Digest, Appeal and Error, k No. 927(7).

Wolfe was the prime concessionaire at a public park and recreational area on Table Rock Reservoir known as the Highway 13 Boat Dock. His primary responsibility was to police and maintain the facilities provided for camping and picnicking. Immediately adjacent to the lake in the area was a sloping ramp available to the public for use in launching boats from trailers and retrieving them from the water. It was 'a regular occurrence' for vehicles operated on the ramp to become stalled or disabled. There was no evidence contradicting Wolfe's disavowal of any legal or contractual responsibility to assist people with such vehicles, but he allowed that 'many times' of his own 'free will' he had used his Jeep or tractor to aid people whose cars and trailers became 'hung up' on the ramp or in the water--'I don't think I ever refused to help a man if he asked for help.' Larson was not in the general employ of Wolfe for any purpose and, at the time of the accident in question, Larson had no official 'relationship with this Highway 13 Boat Dock area.'

Cloninger had gone to the area to 'camp and fish,' and while enroute on foot from his tent site to a cafe, he encountered Ollie Kitch whose station wagon, with boat and trailer in tow, was disabled on the launching ramp. Kitch requested Cloninger's assistance. Cloninger explained that his pitched tent was attached to his pickup truck but that he, nevertheless, would assist with his vehicle if other help was not available. A rope was then obtained by Cloninger from his truck and he, together with Kitch, tied the rope to the front of the station wagon so that 'whatever they pulled his car with they could use this.' Upon returning from the cafe some twenty minutes later, Cloninger found the scene at the ramp and Kitch's predicament unchanged. Kitch stated that he had asked 'the man at the boat dock,' located 150 yards from the ramp, for help and opined, "but I believe he's forgot about me." While Kitch remained at the ramp, Cloninger went to the office at the boat dock and talked to Wolfe who said, "I just forgot about it, I'll pull him right now." Wolfe and Cloninger then went outside to the location of a Ford tractor to which was attached a brush hog. Wolfe went to a truck, secured a log chain, returned to the tractor and told Cloninger, "We will use this to pull him out with." In response to Cloninger's inquiry, Wolfe said it would not be necessary to detach the brush hog and that Cloninger could "just hook (the chain) on the (two channels on the brush hog), they are plenty substantial." About this time Larson arrived and asked what they intended doing. Upon being informed of the proposed mission, Larson reminded Wolfe that he had just gotten out of the hospital following surgery and admonished Wolfe that 'you shouldn't be driving a tractor . . .. Why don't you let me?' After ascertaining that Larson could operate the tractor, Wolfe said, "Well, you go pull him and I'll stay here." Wolfe went back into the office. Cloninger, with the log chain in his hand, got onto the shroud of the brush hog and rode in that position to the launching ramp with Larson driving the tractor.

Upon arriving at the launching ramp, Cloninger stepped off the brush hog, walked to the station wagon and was in the process of tying his rope to the log chain when struck by the brush hog. It was Cloninger's theory that Larson had negligently backed the brush hog against him; Larson claimed that the tractor and brush hog slid backward down the ramp which had been made slippery by a recent application of oil.

The many evidentiary circumstances and elements that are to be considered in determining the existence velnon of the master-servant relationship have been fully detailed and discussed so often that we need not repeat them here. See Mattan v. Hoover Company, 350 Mo. 506, 516--517, 166 S.W.2d 557, 564--565(3--5), and cases cited; Jokisch v. Life and Casualty Insurance Co. of Tenn., Mo.App., 424 S.W.2d 111, 114(5). Other relationships will usually have some characteristics of master and servant alliances (Griffin v. Sinks Ford Sales, Mo.App., 413 S.W.2d 856, 858); for this reason it is often said that no one of the sundry elements which enter into a determination of the actual master-servant relationship is alone conclusive, and that all must be viewed to see whether control, or a right of control has been retained over the alleged servant's physical conduct and details of the work. Talley Bowen Construction Company, Mo., 340 S.W.2d 701, 704(3). Generally speaking, a servant is one who is employed by a master to perform services in his affairs and whose physical conduct in the performance of those services is controlled or subject to the right of control by the master. Madsen v. Lawrence, Mo., 366 S.W.2d 413, 415(2). The ultimate test in determining whether a person is a servant or bears some other relationship to the supposed master is whether the latter had the right to exercise control over the details of the servant's work (Gardner v. Simmons, Mo., 370 S.W.2d 359, 362(5)); if one renders service to another and retains...