Dickson v. Beemer

• Decision Date: 14 February 1949
• Docket Number: 40625
• Parties: Fred Dickson, Appellant, v. Arthur Beemer and Julian Stockamp, Respondents
• Court: Missouri Supreme Court

217 S.W.2d 515

Fred Dickson, Appellant, v. Arthur Beemer and Julian Stockamp, Respondents

No. 40625

Supreme Court of Missouri, First Division

February 14, 1949

From the Circuit Court of St. Louis CountyCivil Appeal Judge Raymond E. LaDriere

Affirmed

OPINION

Action to recover $25,000.00 for personal injuries sustained by being struck by a car driven by defendant Stockamp, employee of defendant Beemer. The trial court directed a verdict for defendant Beemer; the jury returned a verdict for $5,000.00 against defendant Stockamp. Judgment was entered upon these verdicts. Plaintiff filed motion for a new trial; was overruled and appealed.

Plaintiff's case went to the jury as to defendant Stockamp under the humanitarian rule on the alleged failure to slacken speed, or sound a warning of his approach, or swerve his car. Defendant Stockamp, in his separate answer, denied generally, and alleged that whatever injuries plaintiff received were caused by his own negligence in stepping backward into the path of his (Stockamp's) car. Defendant Beemer, in his separate answer, denied generally and alleged that at the time and place of plaintiff's injury defendant Stockamp was not engaged in any business for him; was on his own private business; was operating his own car and was not under his direction.

Plaintiff (appellant) assigns error on the directed verdict for defendant Beemer and on an alleged inadequate verdict as to defendant Stockamp.

Beemer resided in Brentwood, St. Louis County; did construction work in building asphalt and flagstone driveways, road work etc.' had his office in his residence and kept some of his equipment about his residence. Stockamp resided, at the time, in Creve Coeur; was in Beemer's employ as a caterpillar driver; went to work at 8 a.m. On May 6, 1940 date of plaintiff's injury, Stockamp, in his car, went to Beemer's residence instead of going direct to the job he was then on. On his way from Beemer's to his place of work he, while driving north on Brentwood Boulevard, struck plaintiff, a pedestrian, in the intersection of Brentwood Boulevard and Eager Avenue. It was plaintiff's theory that Stockamp went to Beemer's office (residence) on the morning of plaintiff's injury to receive instructions "as to where to go and what to do" and that Beemer gave such instructions and that from the time Stockamp left Beemer's place he was on duty and was therefore Beemer's agent when he (Stockamp) struck plaintiff.

All witnesses used were called by plaintiff and among these were Stockamp and Beemer. Mr. McFarland, counsel for plaintiff was a witness; he did not conduct the trial. McFarland testified that in his investigation he talked with Stockamp and Beemer; that Stockamp said that on the morning of plaintiff's injury he (Stockamp) drove his car to Beemer's home; that Beemer was the man he was working for; that on the way from Beemer's to his place of work he struck plaintiff. "Q. When you talked with Mr. Stockamp, did he tell you where he was going on the morning of May 6th? A. He said he didn't know where he was going until he got to Mr. Beemer's home, and then he learned where he was supposed to go. Q. Did he say anything as to where he was going at the time the accident occurred? A. He said he arrived at Mr. Beemer's home and that he was then on his way after talking to Mr. Beemer over to Ladue Village. Q. Did he say he had been sent there by Mr. Beemer? A. He did. Q. And he was on his way from Mr. Beemer's house over to the place in Ladue where he was going to work? A. That is what he said."

As to what Beemer said, McFarland testified: "I talked to Mr. Beemer, and asked him if he knew Julian Stockamp. He said yes, he did; that he was employed by him. I asked him if he had heard about this accident; he said he had. I asked him on the occasion of May 6th what Stockamp was doing. He said he was working for him over in Ladue. I asked him whether or not Julian Stockamp had been to his home that morning. He said he had; that he came there, and that he had been coming there each morning reporting for work, and that he would then send him to the various jobs that were under operation at the time. I told him I had talked to Stockamp and that Stockamp had told me what occurred there with reference to the accident. * * * Q. Mr. McFarland, on the morning you talked to Mr. Beemer, did he tell you at that time that Mr. Stockamp came to his house on every morning? A. That is correct, where he was told to report at whatever job he wanted to send him to. Q. In other words, Mr. Stockamp came to the home of Mr. Beemer to report for work? A. That is correct. Q. And then went from there to whatever individual job he had for him? A. That is correct."

Defendant Stockamp, as a witness for plaintiff, testified that he left his home in his car the morning of May 6th; went to Beemer's; that "one morning I would go (to Beemer's) and the next morning I wouldn't; that was entirely up to me"; that sometimes before he went to work he went to Beemer's; that when he went to Beemer's before he went to work he went "just to be going"; that he had no business at Beemer's; that he might have been going some place; had some business in Brentwood and just went by Beemer's; that he had often done that; that he kept his own time on the job; that all he said to Beemer on that morning was "good morning" and that Beemer said, "What are you doing here", and that he answered, "nothing"; that Beemer said, "Go to your job"; that such was all that was said; that he did not get out of his car at Beemer's; that he did not "pick up any tools or anything" at Beemer's. On cross examination Stockamp testified that Beemer paid him by the hour for the number of hours that he drove the tractor (cat); that Beemer did not pay him for any mileage on his car or for gas or anything for his car.

Defendant Beemer, called by plaintiff, testified that at the time of plaintiff's injury he had eight or nine men working for him; that sometimes he had three or four jobs going at the same time; that at time of injury he had two jobs going; that Stockamp was in his employ as "caterpillar skinner" and had been so employed about two years; that on the morning of plaintiff's injury Stockamp came to his home about 7 o'clock; that all his employees, except those who had transportation of their own, came to his home of mornings to be transported to place of work. Beemer further testified "When I came downstairs (on that morning) Stockamp was sitting in his car. I was surprised to see the boy there and asked him, 'What are you doing here? You know where your job is at.' I did not tell him to come there. Q. What did he say to you? A. He grinned and started his car and drove off; that was about 7 o'clock; he kept his own time. He was not supposed to report at my house unless he was told to do so, but often he was there without being told to report. * * * When Mr. McFarland came to see me he told me the accident had occurred; I told him that Stockamp was working...