Douglas v. National Life & Acc. Ins. Co. of Nashville, Tenn.

• Citation: 155 S.W.2d 267,236 Mo.App. 467
• Parties: HELEN DOUGLAS, (PLAINTIFF), RESPONDENT, v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY OF NASHVILLE, TENNESSEE, A CORPORATION, AND ALBERT POLUNSKY, DEFENDANTS, NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY OF NASHVILLE, TENNESSEE, A CORPORATION, APPELLANT
• Decision Date: 04 November 1941
• Court: Missouri Court of Appeals

155 S.W.2d 267

236 Mo.App. 467

HELEN DOUGLAS, (PLAINTIFF), RESPONDENT, v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY OF NASHVILLE, TENNESSEE, A CORPORATION, AND ALBERT POLUNSKY, DEFENDANTS, NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY OF NASHVILLE, TENNESSEE, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 4, 1941

Motion for Rehearing Overruled November 18, 1941.

Petition for Writ of Certiorari Denied March 10, 1942.

Appeal from the Circuit Court of City of St. Louis.--Hon. Wm. B Flynn, Judge.

REVERSED.

Judgment reversed.

A. A Alexander and T. J. Crowder for appellants.

(1) Pesot v. Yanda, 126 S.W.2d 240; Vert v. Met Life Ins. Co. (Mo.), 117 S.W.2d 252, 256, 257; Skidmore v. Haggard et al. (Mo.), 110 S.W.2d 726, 727, 729, 730; Barnes v. Real Silk Hosiery Mills et al. (Mo.), 108 S.W.2d 58, 62; Riggs v. Higgins (Mo.), 106 S.W.2d 1, 2, 3, 5; Manus v. Kansas City Distributing Corp., 228 Mo.App. 905, 908-909, 914, 74 S.W.2d 506; Wesolowski et al. v. John Hancock Mut. Life Ins. Co., 162 A. 166, 167, 308 Pa. 117; Hutchins v. John Hancock Mut. Life Ins. Co. (N.H.), 192 A. 498, 499, 500; American National Ins. Co. v. Denke (Tex. Com. of App.), 95 S.W.2d 370, 372, 374, 376; Khoury v. Edison Elec. Illum. Co. (Mass.), 164 N.E. 77, 79; Phillips v. W. U. Tel. Co., 270 Mo. 676; La Joie v. Rossi, 225 Mo.App. 651, 37 S.W.2d 684. (2) Jones v. Chicago, R. I. & P. Ry. Co., 108 S.W.2d 94; Lolordo v. Lacy, 88 S.W.2d 353; Smith v. Kansas City P. S. Co., 43 S.W.2d 548; Ross v. St. Louis Dairy Co. et al., 98 S.W.2d 717; Raw v. Maddox, 93 S.W.2d 282; Conaghan v. Dean et al., 96 S.W.2d 924; Rodan v. St. Louis Transit Co., 207 Mo. 392; Polkowski v. St. Louis Public Service Co., 68 S.W.2d 884; Halsey v. Metz, 93 S.W.2d 41; Orlann v. Laederich, 92 S.W.2d 190; Walradt v. St. Joseph Ry. Light, Heat & Power Co., 48 S.W.2d 93; Green v. Western Union Telegraph Co., 58 S.W.2d 772; Conduitt v. Trenton Gas & Electric Co., 31 S.W.2d 21; Cudahy Packing Co. v. C. & N.W. Ry. Co., 196 Mo.App. 528; Western Advertising Co. v. Star Pub. Co., 146 Mo.App. 90; Major v McVey, 128 S.W.2d 347; Vert v. Met. Ins. Co. (Mo.), 117 S.W.2d 252, 256. (3) Pesot v. Yanda, 126 S.W.2d 240; Vert v. Met. Life Ins. Co., 117 S.W.2d 252, 255, 256; Anderson v. Nagel, 214 Mo.App. 134, 146, 149, 259 S.W. 858; Humphreys v. Hogan et al. (Mo. App.), 104 S.W.2d 767, 768, 769, 770; Ursch v. Heier, 210 Mo.App. 129, 241 S.W. 439; Halsey v. Metz (Mo. App.), 93 S.W.2d 41, 44; Green v. W. U. Tel. Co. (Mo. App.), 58 S.W.2d 772; 5 Cyc. of Auto Law & Practice (Blashfield), sec. 3041; Nagy v. Kangesser, 32 Ohio App. 527, 168 N.E. 517, 518, 519; Rosenberg v. Syracuse Newspapers, Inc., 289 N.Y.S. 91. (4) Swain v. Anders et al. , 140 S.W.2d 730; Shepherd v. Chicago, R. I. & P. Ry. Co., 72 S.W.2d 985; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; Thomasson v. Henwood, 146 S.W.2d 88. (5) Pelzer v. Zeltmann, 108 S.W.2d 980; McCarthy v. Sheridan, 83 S.W.2d 907; Spoeneman v. Uhri, 60 S.W.2d 9; Pogue v. Rosegrant (Mo.), 98 S.W.2d 528; Day v. Banks, 102 S.W.2d 946.

Louis E. Miller and Robert R. Adams for respondent.

(1) (a) Margulus v. National Enameling & Stamping Co., 23 S.W.2d 1049; Schmitt v. American Press (Mo. App.), 42 S.W.2d 969; Borgstede v. Waldbauer, 88 S.W.2d 373; Chiles v. Met. Life Ins. Co. (Mo. App.), 91 S.W.2d 169; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 907; Gray v. Philips Building Co. (Mo. App.), 51 S.W.2d 181, 184; Gordner v. St. Louis Screw Co., 210 S.W. 930; 39 C. J. 1282; 42 C. J. 900. (b) Burgess v. Garvin (Mo. App.), 272 S.W. 113; Fuqua v. Lumbermen Supply Co., 76 S.W.2d 715, 719; Perdue v. Chapman, 137 S.W.2d 483, 487. (2) (a) Banks v. Morris, 257 S.W. 482, 484. (b) Blunk v. Snider, 111 S.W.2d 163; Villinger v. Nighthawk Freight Service, Inc., 104 S.W.2d 740, 742; Perkins v. Terminal Railroad Ass'n, 102 S.W.2d 915; Crane v. Sirkin and Needles Moving Co., 85 S.W.2d 911, 914; Johnson v. Scheerer, 109 S.W.2d 1231, 1237; Gambell et al. v. Irvine et al., 102 S.W.2d 784, 792.

BENNICK, C. Hughes, P. J., and McCullen and Anderson, JJ., concur.

OPINION

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff, Helen Douglas, when she was struck by an automobile driven by one Albert Polunsky, a soliciting and collecting agent in the employ of National Life and Accident Insurance Company of Nashville, Tennesseee.

Both Polunsky and the insurance company were joined as defendants to the action; and upon a trial in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $ 7500.

Judgment was rendered in conformity with the verdict; and the appeal is by the insurance company alone, which argues, as a matter of chief insistence, that it should have had a peremptory instruction at the close of the entire case upon the theory that at the time and place of the accident, Polunsky was not subject to its rights of control over his physical movements so as to have rendered it liable to plaintiff for any negligence on Polunsky's part in connection with his use, operation, and management of the automobile.

The scene of the accident was the intersection of Lindell Boulevard and Euclid Avenue, in the City of St. Louis; the time, between seven-thirty and eight o'clock in the evening of February 8, 1939.

Plaintiff had alighted from a service car, and was in the act of crossing Lindell Boulevard from north to south in the space marked off as a cross-walk along the west side of Euclid Avenue, when she was struck by Polunsky's westbound automobile at a point near the middle of the street. While the evidence was much in dispute upon the issue of Polunsky's actionable negligence, it suffices merely to say that the verdict of the jury has resolved that question in plaintiff's favor, so that the evidence upon the question of whether Polunsky either might or might not have avoided the accident is no longer of consequence on this appeal, where the only question to be considered is that of the insurance company's liability to respond to plaintiff, depending upon whether or not there was evidence to show that Polunsky, at the time of the injury, was acting within the scope of his employment by the insurance company, and subject to its right of control over his physical movements in respect to the very transaction out of which the injury arose.

So far as this question is concerned, it appears that Polunsky had a definitely assigned debit or restricted territory, extending from Sarah Street on the east to Newstead Avenue on the west, and from Lindell Boulevard on the south to Delmar Boulevard on the north. Within such territory it was his duty to sell policies of industrial insurance and also to make collections of the weekly premiums thereon, for which latter purpose the first three days of the week were particularly stressed. Along with the other agents of the company he was required to maintain a certain collection percentage of the premiums falling due each week within his territory; but otherwise he was permitted to run his debit as he himself saw fit, and to make collections from individual policyholders at any time within the period of grace allowed for premium payments.

Each morning at eight o'clock he was required to report at the company's office in the Roosevelt Hotel at Euclid Avenue and Delmar Boulevard, but from then on his time was his own until the following morning at eight o'clock, when he would again report and account for, or turn in, his collections for the previous day. This meant that he would retain possession of, or be responsive for, each day's collections over night; and to this end he usually took the money with him to his home upon quitting his territory for the day, unless the collections had been particularly heavy, in which event he would sometimes deposit the money in a bank and then remit by his personal check the following morning, or else purchase a money order for the amount of his remittance, which he would turn in to the company at the time for his next report.

It happened that Polunsky had an automobile which he used in connection with his work whenever he saw fit to do so. He was the sole owner of the automobile; and while his superintendent knew that he had the car and used it in his work, the company did not require him to use it; did not make its possession a condition of his employment; and neither paid any part of the expense of its operation, nor made him any allowance to compensate him for its use. There were times when he did not bring the car down to the territory with him; and when he did drive it to his work, he did not always make use of it in making his collections, but frequently would park it at some convenient point and then walk over his territory, which was very compactly situated. On those occasions when he used the car, he controlled or managed it as suited his own convenience; and it was of no concern to the company how he covered his territory so long as he maintained his required collection percentage and accounted for the previous day's collections each morning at eight o'clock. In other words, his use of the car was entirely voluntary with himself, and it was left to him to select the way of covering his territory to the best advantage.

About seven-thirty o'clock in the evening of the day in question, Polunsky made his last collection for the day from a policyholder residing at 4248 Maryland Avenue, which was within his territory; and having completed his work, he drove south to Lindell Boulevard, and then turned west on Lindell Boulevard en route to his home at 5889 Terry Avenue. This was a Wednesday, one of the days particularly set apart for the collection of premiums; and there was no dispute but that he...