Corder v. Morgan Roofing Co.

• Decision Date: 10 November 1942
• Docket Number: 38020
• Parties: Maude S. Corder v. Morgan Roofing Company, a Corporation, Appellant, Elmer H. Dale, Defendant
• Court: Missouri Supreme Court

166 S.W.2d 455

350 Mo. 382

Maude S. Corder v. Morgan Roofing Company, a Corporation, Appellant, Elmer H. Dale, Defendant

No. 38020

Supreme Court of Missouri

November 10, 1942

Rehearing Denied December 1, 1942.

Appeal from Vernon Circuit Court; Hon. Thomas W. Martin Judge.

Affirmed.

Ewing Ewing & Ewing and Lynn M. Ewing for appellant.

(1) The evidence showed that in the use of his car Dale was not directed or controlled by appellant, nor did appellant reserve the right to direct or control its use, therefore Dale was not the servant of appellant at the time and place of the collision. American Law Institute, Restatement of Agency, sec. 539, pp. 538-540; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Vert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A. L. R. 1381; Klotsch v. P. F. Collier & Son Corp., 159 S.W.2d 589; Reiling v. Mo. Ins. Co., 153 S.W.2d 79; Douglas v. Natl. Life & Acc. Ins. Co., 155 S.W.2d 267; Gosney v. Met. Life Ins. Co., 114 F.2d 649; Khoury v. Edison Electric Co., 265 Mass. 236, 164 N.E. 77, 60 A. L. R. 1159; Wesolowski v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 A. 166, 87 A. L. R. 783; Kennedy v. American Natl. Ins. Co., 107 S.W.2d 364. (2) The evidence clearly disclosed that Dale was an independent contractor insofar as his transportation was concerned, and therefore appellant is not liable for his torts. Restatement of Agency, pp. 11, 559, 560; Vert v. Met. Life Ins. Co., supra; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Dorset v. Pevely Dairy Co., 124 S.W.2d 624; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Bass v. Kansas City Journal Post, 347 Mo. 681, 148 S.W.2d 548.

Dan Z. Gibson, W. T. McCaffree and Sizer & Myres for respondent.

(1) The trial court committed no error in submitting plaintiff's case to the jury against both defendants, because there was ample evidence to establish the relationship of principal and agent between appellant and Dale. Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; 42 C. J., sec. 900, p. 1128; Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S.W.2d 27; Schmitt v. American Press, 42 S.W.2d 969; Chiles v. Met. Life Ins. Co., 230 Mo.App. 350, 91 S.W.2d 164; Steinmetz v. Saathoff, 84 S.W.2d 437; Gordner v. St. Louis Screw Co., 201 Mo.App. 349, 210 S.W. 931; McCaughen v. Mo. Pac. R. Co., 274 S.W. 97; Kennedy v. American Natl. Ins. Co., 107 S.W.2d 364, 112 A. L. R. 916; Curcic v. Nelson Display Co., 64 P.2d 1153; Heintz v. Iowa Packing Co., 268 N.W. 607; Champion v. Shaw, 154 N.E. 181. (2) Appellant's officers sent Dale to Marshall to work as foreman on the appellant's construction job. At the time of the collision Dale was returning from Marshall to appellant's office in Joplin to make his weekly report to appellant's officers, and to receive from them instructions for the following week. Therefore, he was, unquestionably, acting in the scope of his employment. Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Brunk v. Hamilton Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264; Vert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S.W.2d 27. (3) The appellant stood on its demurrer to plaintiff's evidence and the only question for this court to decide is whether the plaintiff's evidence was sufficient to establish agency between appellant and Dale. This court in deciding that question must treat all the evidence supporting plaintiff's case as true, and must give the plaintiff the benefit of all the fair and reasonable inferences that can be drawn therefrom. Bird v. St. Louis-S. F. Ry. Co., 336 Mo. 316, 78 S.W.2d 389; Herrington v. Hoey, 345 Mo. 1108, 139 S.W.2d 477; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897; Cento v. Security Building Co., 340 Mo. 1069, 99 S.W.2d 1. (4) Dale at the time of the collision was acting as agent and servant of the appellant, and not as an independent contractor. See cases cited under Point (1); Maltz v. Jackoway Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. (5) To use the language of vice president Welsh, "Dale was one of our regular employees." At the time the collision occurred Dale was using his car, with the knowledge and assent of appellant, and in the performance of appellant's business. He was riding to appellant's office in Joplin to make his weekly report to his superiors, and to get from them his instructions for the following week. These facts establish prima facie the relationship of master and servant between appellant and Dale, and warranted the submission of this question to the jury. Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; 39 C. J., sec. 1590, p. 1361; Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Perry v. Ford, 17 Mo.App. 212; Dibble v. San Joaquin L. & P. Corp., 190 P. 198. (6) Under the facts of this case, it was a question for the jury to determine whether Dale was a servant of appellant or an independent contractor. Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Jewel v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617; Young v. Sinclair Refining Co., 92 S.W.2d 995.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff filed suit against the Morgan Roofing Company, a corporation, and Elmer H. Dale, to recover damages for personal injuries. She obtained a verdict and judgment against both defendants for $ 10,000. Defendant Morgan Roofing Company alone appealed.

Plaintiff was injured in a collision between the automobile in which she was riding and an automobile owned and driven at the time by defendant Dale. There is no claim that plaintiff was in any way at fault, and neither is there any claim made here that her injuries were not caused by the negligence of Dale. Hence, it will not be necessary to deal with the grounds of negligence upon which the cause was submitted and the evidence pertinent thereto.

The sole questions here are whether Dale was an employee of the corporate defendant at the time of plaintiff's injuries, and was, at the time, acting within the scope of his employment. We might state here that neither defendant offered any evidence. At the close of plaintiff's case the corporate defendant announced that it would offer no evidence, but it offered and was refused an instruction in the nature of a demurrer to the evidence. Defendant Dale did not offer such an instruction, but announced that he would offer no evidence.

Plaintiff was injured December 5, 1936, about 3 miles east of Carthage, Missouri, on highway 66. The car in which she was riding was travelling east and the Dale car was travelling west. On the day plaintiff was injured and for several years prior thereto, Dale had been a regular employee of the corporate defendant and "his regular pay was $ 1 an hour when he worked." Dale's general duties were to supervise and direct the building and repair work undertaken by the corporate defendant. The men on the job were under his direction; he paid them and kept records and made reports to his employer. In these reports he was required to set out the progress of the work, the number of men working, time put in by the men, their hourly and weekly pay, and the amount of material used. He usually made these reports when he returned on Saturdays to the office of the corporate defendant in Joplin, Missouri. On many occasions the corporate defendant sent Dale out of Joplin, and on many of these trips he used his own car, to the knowledge of his employer. However, his employer did not pay all expenses incident to the use of Dale's car on these trips, but paid him an amount equal to the "train fare to and from the particular town where the work was." There was also evidence tending to show that, on occasions, Dale was furnished gasoline for trips.

Defendant Morgan Roofing Company had a roofing job at Marshall, Missouri, and on Sunday, November 29, 1936, Dale, under instructions from his employer, left Joplin and drove in his car to Marshall, to act as foreman on the job. Dale testified that on this trip the Morgan Roofing Company paid him for car expenses, the equivalent of train fare from Joplin to Marshall and back to Joplin. Plaintiff read in evidence Dale's deposition, and on the subject of the use of his car and the pay he received from his employer in the way of expenses, he testified that train service in and out of Joplin was inconvenient; that he could make better time by using his car; that he was to be paid "railroad fare, not car expense"; that he was paid "the equivalent of the railroad fare. Q. And you got that on account of the use of your car? A. I didn't get it, I just took my own choice in going in my car. I was paid train fare and I was paid train fare because I had used my car going to Marshall and back."

On Saturday, December 5, 1936, date of plaintiff's injuries, Dale attempted to call, by telephone from Marshall to Joplin, Clarence V. Welch, vice president of the corporate defendant, to ascertain whether he, Dale, should return to Joplin or remain in Marshall. He was not successful in getting Welch, but did get L. E. Morgan, president of the company, and Morgan told him "to do what he pleased about coming in." Welch testified that before he had "any knowledge of the accident" he knew that Dale "was coming in"; that he knew this "after talking to Mr. Morgan", but that "Mr. Dale was not in the habit of coming in on Saturday nights when he was on long trips like that one."

Plaintiff contends that at the time of the collision and her injuries Dale was on his way to the office of his employer to...