Dean v. Young, 51381

• Decision Date: 08 November 1965
• Docket Number: No. 1,No. 51381,51381,1
• Citation: 396 S.W.2d 549
• Court: Missouri Supreme Court
• Parties: Leslie M. DEAN, Plaintiff-Appellant, v. Russell N. YOUNG, Defendant-Appellant, and Sears, Roebuck & Company, a Corporation, Defendant-Respondent

Page 549

396 S.W.2d 549

Leslie M. DEAN, Plaintiff-Appellant, v. Russell N. YOUNG, Defendant-Appellant and Sears, Roebuck & Company, a Corporation, Defendant-Respondent.

No. 51381.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1965.

George E. Lee and Doris J. Banta, St. Louis, for appellant Leslie M. Dean; Carter, Bull, Baer, Presberg, Lee & Standard, St. Louis, of counsel.

F. X. Cleary, Donald L. James, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant Russell N. Young.

John M. Goodwin, Henry S. Stolar, Hocker, Goodwin & MacGreevy, St. Louis, for respondent.

WELBORN, Commissioner.

Leslie M. Dean brought suit against Russell N. Young and Sears, Roebuck & Company for personal injuries sustained when a truck in which Dean was a passenger collided with an automobile driven by Young. Dean's petition attributed the collision to Young's negligence and alleged that Young was the servant of Sears, acting, at the time of the accident, within the scope of his emloyment. A jury returned a verdict in favor of plaintiff and against both defendants for $390,000.

The trial court overruled Young's motion for new trial and Young appealed from the judgment entered against him on the jury's verdict. The trial court sustained Sears' motion for judgment in accordance with its motion for directed verdict at the close of all the evidence. From this judgment in favor of Sears, Dean appealed.

The accident giving rise to the lawsuit occurred at about 6:30 A.M., September 17, 1960, on U. S. Highway 66 near its intersection with Missouri State Highway 28 and at a point about 4 1/2 miles east of Fort Leonard Wood. Dean was a passenger in a Dodge pickup truck being driven west on Route 66 by John Butler. Route 66 is a divided 4-lane highway in the area and Butler was in the left or inner lane of the westbound roadway. Young was also driving west on Route 66 and overtook the Dodge pickup. Young passed the Dodge on the right and then, according to Butler and Dean, turned toward the left or inner lane in front of the Dodge. The left end of the rear bumper of Young's vehicle caught the right end of the Dodge front bumper. Butler was unable to control the Dodge and it overturned, producing serious injury to Dean which will be more fully discussed below.

The issue on the appeal of Dean from the judgment in favor of Sears is whether or not the trial court properly concluded, in response to Sears' after-verdict motion, that no submissible case was made against Sears on the question of a master-servant relationship between it and Young. Determination of that question will involve a somewhat detailed consideration of the facts bearing upon the issue.

Young was a native of the Lebanon, Missouri vicinity. He had moved to St. Louis and in 1956 he was employed by Dependable Appliance Service, Inc. as a service technician repairing washing machines and dryers. In January, 1960, Young was laid off of his job in St. Louis and he went to Lebanon to visit his parents.

Sears had a catalog store in Lebanon and Young went to the store and asked the manager, Mr. Walters, about doing service work. Sears sold various appliances which required service from time to time, some under warranties made when the devices were sold by Sears. Customers requested service through the Sears store at Lebanon. That store did not have a regularly employed serviceman. For some work, Sears' employees in Rolla and Springfield were called in. For other work, various servicemen in Lebanon were used to service particular appliances, such as television receivers, washers and dryers and refrigerators.

Walters knew Young and knew that he was experienced in repairing Sears' washers and dryers. Walters told Young that he was looking for a serviceman and an informal, oral understanding was arrived at whereby Young would, when in the Lebanon vicinity, handle service requests made through the Sears store.

Sears furnished Young no tools. He was not provided an office or shop in the Sears store. He used his own auto to call on the customers and performed his work in the customer's house or wherever the appliance was located. Whenever request for service was received at the Sears store, the employee receiving the request would, on a Sears' 'Service Order' form, record the name of the customer, his address and the service requested. The order was checked in an appropriate box to show whether the work was to be charged to the customer, or, in case a warranty was in effect on the appliance, to the store.

Young would go to the store when he was in Lebanon and pick up the service orders which had accumulated since his last stop at the store. He would then go to the customer's address and perform the necessary service work. During 1960, Young worked on 255 separate service orders through Sears' Lebanon store. The work was done on 53 separate dates, 36 of which were Saturdays, 6 Fridays and the remainder on the other days of the week.

At the time of the accident, Young had resumed work with Dependable Appliance Service, Inc., in St. Louis. He left St. Louis before daylight on Saturday, September 17, 1960, driving his own Chevrolet station wagon which he used in the Sears' service work. While in St. Louis, Young had received a postcard from Dan Helton of Palace, Missouri, asking Young to stop to service appliances. Young had previously worked on an appliance of Helton's. Palace is south of Fort Leonard Wood and Young intended to go there on the morning of the accident before going on to the Lebanon store. Following the accident and before going to Lebanon, Young did go to Helton's and worked on two appliances, one of which was in warranty and for which Young's labor was charged to Sears. Young himself prepared the service orders for these jobs on blank forms which Sears had furnished him.

Young also had in his possession at the time a service order dated September 9, requesting service for Doyle Murrell at Falcon, Missouri. Young intended to make this call also before going to Lebanon. He did call on Murrell and did the necessary work, although he was not sure whether he did so before going to Lebanon. In any event, Young went to Lebanon, where he picked up seven other service orders which he filled on September 17.

We have accepted the criteria set out in the Restatement of Agency for determining whether or not a questioned relationship is that of master and servant or employer and independent contractor. See Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58, 61[3-5]. We will consider how the evidence here bears upon each of the criteria specified in the Restatement of Agency, 2d, Sec. 220, p. 485.

According to the Restatement:

'(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

'(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

'(a) the extent of control which, by the agreement, the master may exercise over the details of the work; * * *.'

This element, control or right to control, is the one most frequently referred to in our cases distinguishing a servant from an independent contractor. Gardner v. Simmons, Mo.Sup., 370 S.W.2d 359, 362; Talley v. Bowen Const. Co., Mo.Sup., 340 S.W.2d 701; Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 797; Benham v. McCoy, Mo.Sup., 213 S.W.2d 914, 919[7-11]. By the Restatement's definitions, this is the element primarily which distinguishes a servant and an independent contractor. 1 Restatement of Agency, 2d, Sec. 2, p. 12.

In this case, the evidence of the issue of control or right to control demonstrated rather clearly the absence of this element. The evidence showed that Young came and went as he saw fit. According to Walters: 'He didn't come in on no certain days, not every day. When he was off, nothing else to do, he would come by. I never did know when he was coming or not coming.' Walters did not direct on which service orders Young should work. The orders were placed on a spindle. Young looked them over and took those which he chose. Plaintiff states that the evidence shows that Walters sometimes told Young which customers to attend to first. We, however, fail to find evidence which warrants such conclusion. Walters apparently did inform Young on occasions that a customer was particularly upset, 'one that was really kicking, then he would have to do what he considered was best about it.' The fact that Young was told to do what 'he considered best about it' is more indication of lack of control than the contrary.

As will be discussed more fully below, Young subsequent to the accident did become, for a time, a full-time, regular employee of Sears' Lebanon store. Walters succinctly described the difference between Young's status then and his status at the time of the accident, by saying: 'He done what I told him to do after I hired him. He done what he wanted to do before I hired him.'

Plaintiff points out that Young was required to do certain paper work for Sears in the manner dictated by Sears. The reference is to Young's filling in on the service order form supplied by Sears information concerning the work done on a particular order, the time spent and the charge made for his work. On warranty jobs, this information was necessary in order for Young to obtain his compensation from Sears. The fact that Sears required such information to be submitted on a form provided by it does not indicate any significant exercise of control of the manner of Young's performing the service. See Williamson v. Southwestern Bell Tel. Co., Mo.Sup., 265 S.W.2d 354, 358-359[3-5].

'(b) (W)hether or not the one employed is engaged in a...