Cooper v. General Standard, Inc., WD

• Decision Date: 22 May 1984
• Docket Number: No. WD,WD
• Citation: 674 S.W.2d 117
• Parties: Robert F. COOPER, et ux., Plaintiffs-Respondents, v. GENERAL STANDARD, INC. and Raymond Hawk, Defendants-Appellants. 34071.
• Court: Missouri Court of Appeals

Page 117

674 S.W.2d 117

Robert F. COOPER, et ux., Plaintiffs-Respondents, v. GENERAL STANDARD, INC. and Raymond Hawk, Defendants-Appellants.

No. WD 34071.

Missouri Court of Appeals Western District.

May 22, 1984.

As Modified July 31, 1984.

Application to Transfer Denied Sept. 11, 1984.

Clyde G. Meise, Meise, Cope, Coen & McIntosh, Kansas City, for defendants-appellants.

Lantz Welch, G. Spencer Miller, Miller & Dougherty, Kansas City, for plaintiffs-respondents.

Before TURNAGE, C.J., KENNEDY, J., and SWOFFORD, Sr. J.

TURNAGE, Chief Judge.

Robert Cooper and his wife, Ruth, filed suit to recover damages from General Standard, Inc. and its employee, Raymond Hawk resulting from an automobile collision. Hawk filed a counterclaim for injuries he sustained. The court entered judgment on the jury verdict awarding Robert $300,000 and Ruth $100,000 against General and Hawk. The court entered judgment for Robert on the verdict in his favor on Hawk's counterclaim.

General and Hawk contend that the court erred in regard to a number of instructions and evidentiary rulings. Affirmed.

About 7:30 a.m. on September 29, 1978, Robert was driving east on 23rd Street in Independence in his automobile. Twenty-Third Street is a four lane street divided by a solid concrete median of some width constructed to curb height. At the same time and place Hawk was operating a van owned by General in a west-bound direction on 23rd Street. The van went up on to the median and entered the east bound lanes where it collided head on with Robert's car.

There was no dispute that the van was owned by General and that Hawk was employed by General to install liquor displays. There was no dispute that on September 27 Hawk had driven the van, with permission, to the airport to fly to New Orleans to attend a seminar for display people. He returned to the airport about midnight on September 28, picked up the van, and drove to his home in Independence. He arose about 6:30 a.m. on September 29 and was driving the van toward General's office at the time of the accident.

The evidence would allow the jury to find that Robert sustained numerous injuries, the most serious of which was to his neck. As a result of his injuries, Robert underwent two surgeries for a spinal fusion in his neck. After surgery he was in considerable pain and required extensive treatment. There was expert testimony that his pain is real and intractable and that it is of a permanent nature. Robert spent 40 days in the hospital and was unable to return to his work as a crane operator for one year after the accident. When he did return to work he found he was not able to perform the duties of crane operator and was required to accept reclassification as an oiler. This meant a reduction in pay and seniority.

Ruth testified that she spent several days around the clock at the hospital with Robert after the accident. She testified that Robert had undergone a personality change and that he was in constant pain. She stated that it had been necessary for her to go back to work because of Robert's reduced earnings. She said that because of Robert's condition she had to do considerably more driving after the accident than before. She said the accident had wrecked the couple's conjugal relations.

Hawk testified that he was driving down 23rd Street when a car cut in front of him causing him to swerve and strike his head. He said that he passed out and had no recollection of the accident. Hawk filed a counterclaim against Robert for his injuries arising from the accident.

General first contends that there was no evidence to support a finding that Hawk was acting within the scope of his employment at the time of the accident. General's position is that Hawk was simply driving to work and, thus, was not acting in the course of his employment so as to subject General to liability. It is true that an employee is not engaged in work when he uses his employer's automobile in going to and from his place of employment. Beckwith v. Standard Oil Company, 281 S.W.2d 852, 855 (Mo.1955). However, the evidence in this case shows that Hawk was doing more than simply driving the van to work. It is conceded that Hawk had driven the van to the airport to go to New Orleans on business, and that he had permission to leave the van at the airport and to drive it back to the office of General when he returned. It is also conceded that Hawk did not arrive in Kansas City from New Orleans until midnight on September 28 and that he went home for a few hours sleep before returning to the office the next morning.

The facts in this case are similar to those in Gilborges v. Wallace, 78 N.J. 342, 396 A.2d 338 (1978). In Gilborges, the employee, a truck driver, arrived at the employer's terminal one evening. He was scheduled to make a trip early the next morning and borrowed a pickup truck from his employer to drive to his home to sleep and pick up some fresh clothing. The next morning, on his return to the terminal, he was involved in an accident. The court held that under these facts reasonable minds could differ as to whether the driver's trip to and from his home prior to the accident served a dual purpose, one of which was the advancement of the employer's business.

As in Gilborges, the facts in this case support the submission of the agency question to the jury. The jury could have found that Hawk's trip was not concluded until he returned to General's office the morning after his midnight arrival in Kansas City. Under the dual purpose doctrine which is recognized in Missouri, Wolfe v. Harms, 413 S.W.2d 204, 216 (Mo.1967), a jury question was presented just as it was in Gilborges. Reasonable minds could differ as to whether or not Hawk was acting within the scope and course of his employment at the time of the accident by reason of not having completed his New Orleans trip. The question was one of fact to be settled by the jury. De Mariano v. St. Louis Public Service Company, 340 S.W.2d 735, 739[1, 2] (Mo.1960).

The next contention is that a motion for a directed verdict in favor of General and Hawk should have been sustained after Cooper's counsel made his opening statement because counsel did not state facts showing that Hawk was in the course and scope of his employment at the time of the accident. Counsel stated the facts outlined above concerning Hawk's trip to New Orleans. However, General and Hawk hinge their contention on the fact that counsel stated that Hawk was on his way to work. The discussion above holding that a jury question was presented on the agency question because of the New Orleans trip disposes of this point. As illustrated, counsel stated facts showing a basis for a finding of agency at the time of the accident.

General next contends that Robert's verdict directing instruction was erroneous in several respects. The first objection is that the instruction contained a tail which referred to a contributory negligence instruction offered by General and Hawk rather than to Hawk's humanitarian verdict director given on his counterclaim. The argument is that by failing to refer to Hawk's humanitarian verdict director the court misled the jury.

Robert's verdict director required the jury to find that Hawk was negligent in certain respects. The contributory negligence offered in response to the instruction submitted various acts of negligence on the part of Robert which would preclude his right to recovery. The instructions in this case were packaged according to MAI 2.00. Robert's verdict director and the contributory negligence instruction were included in the package applicable to Robert's claim for injuries. Hawk's humanitarian verdict director was in the separate package applicable to his counterclaim. However, the important factor is that the negligence of Robert as submitted in the contributory negligence instruction and as submitted in Hawk's humanitarian are virtually identical. The contributory negligence instruction...