Foster v. Campbell

• Decision Date: 09 September 1946
• Docket Number: 39548
• Citation: Foster v. Campbell, 196 S.W.2d 147, 355 Mo. 349 (Mo. 1946)
• Parties: Chelsea Foster, a Minor by J. E. Foster, Next Friend, Appellant, v. Alfred Campbell
• Court: Missouri Supreme Court

196 S.W.2d 147

355 Mo. 349

Chelsea Foster, a Minor by J. E. Foster, Next Friend, Appellant, v. Alfred Campbell

No. 39548

Supreme Court of Missouri

September 9, 1946

Appeal from Howell Circuit Court; Hon. Gordon Dorris Judge.

Reversed and remanded.

Esco V. Kell and G. W. Rogers for appellant.

(1) Proof of the ownership of defendant's pick-up was sufficient evidence to take the case to the jury and the court erred in sustaining the motion for a directed verdict. Edwards v. Rubin, 2 S.W.2d 205; McCarter v Burger, 6 S.W.2d 979; Barz v. Fleischmann Yeast Co., 271 S.W. 361; Benson v. Smith, 38 S.W.2d 743; Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Brucker v. Gambaro, 9 S.W.2d 918; Kaufman v Baden Ice Cream Mfrs., Inc., 7 S.W.2d 298. (2) The court erred in sustaining the motion for a directed verdict. Murphy v. Loeffler, 39 S.W.2d 550; Benson v. Smith, 38 S.W.2d 743; Mebas v. Werkmeister, 299 S.W. 601; McCarter v. Burger, 6 S.W.2d 979, 980; Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Malone v. Small, 291 S.W. 163; Curtis v. Harrison, 253 S.W. 474; Hampe v. Versen, 32 S.W.2d 793; Llywelyn v. Lowe, 239 S.W. 535; Kilcoyne v. Metz, 258 S.W. 4.

Green & Green and Wm. D. Roberts for respondent.

(1) Proof of the ownership of defendant's pick-up truck was insufficient under all the evidence to take the case to the jury. Arnold v. Haskins, 147 S.W.2d 469; State ex rel. Waters v. Hostetter, 126 S.W.2d 1164; Ross v. St. Louis Dairy Co., 98 S.W.2d 717; Griffey v. Koehler, 50 S.W.2d 693. (2) The plaintiff, having called the defendant, Iona Campbell, as a witness in his behalf, is bound by her testimony. Becker v. Donahue, 168 S.W.2d 960; Klotsch v. Collier & Son Corp., 159 S.W.2d 589; Arnold v. Haskins, supra. (3) Plaintiff's right of recovery against defendant, Alfred Campbell, if any he had, rests entirely on the doctrine of respondeat superior, and before he was entitled to have his case submitted to the jury it was incumbent upon him to prove (a) that the defendant, Iona Campbell, was engaged in the business of her husband, Alfred Campbell, at the time of the alleged injury; (b) that she was at said time the servant of her husband as distinguished from an agent or an independent contractor; and (c) that she was at said time either under the control of her said husband, or subject to his right to control, with respect to her physical conduct in the performance of service in his affairs. Since plaintiff did not meet these requirements, the court properly sustained defendant's motion for a directed verdict. Pfeifer v. United Bakers Supply Co., 160 S.W.2d 795; Douglas v. Natl. Life & Accident Ins. Co., 155 S.W.2d 267; Becker v. Donahue, 168 S.W.2d 960. (4) The relation of Iona Campbell to defendant, Alfred Campbell, in the transaction was that of an independent contractor, and as such he is not liable for any negligence of Iona Campbell which she may have committed at the time of the alleged collision. Barnes v. Real Silk Hosiery Mills, 108 S.W.2d 58; Pfeifer v. United Bakers Supply Co., supra; Becker v. Donahue, supra; State ex rel. Chapman v. Shain, 147 S.W.2d 457.

Barrett, C. Westhues, C., concurs; Bohling, C., dubitante on result.

OPINION

BARRETT

On the 29th day of June 1943 the plaintiff, Chelsea Foster, was injured when the motorcycle he and another boy were riding was involved in a collision with a Plymouth pick-up truck driven by Iona Campbell. The collision occurred on Highway 63, three miles south of West Plains, as Mrs. Campbell was returning to her home in Howell Valley. The boys were traveling from Mammoth Springs, Arkansas, to West Plains. Chelsea claimed that the collision and his resulting injuries were due to the negligent manner in which Mrs. Campbell drove the pick-up truck. Consequently, he instituted this action for $ 10,000.00 damages for his injuries against Mrs. Campbell and her husband, Alfred Campbell, as well upon the allgeation "That Iona Campbell is the wife of defendant, Alfred Campbell, and was at all times hereinafter mentioned, the agent, servant and employee of defendant Alfred Campbell, acting in the course and within the scope of her employment and in the performance of her duties as such servant and agent." At the close of the plaintiff's evidence the trial court sustained a separate motion for a directed verdict as to Alfred Campbell upon the ground, apparently, that there was not sufficient competent evidence from which the jury could or should be permitted to find that Mrs. Campbell was the agent of her husband in driving the pick-up truck at the time of the collision. The jury found for Mrs. Campbell and Chelsea appeals from the court's judgment in favor of the husband, Alfred Campbell.

The sole question briefed and argued upon this appeal is whether the court was in error in directing a verdict for the husband. The plaintiff claims that under all the evidence he was entitled to have the husband's liability submitted to the jury because the jury could reasonably find his wife's agency from all the facts and circumstances. He contends, in any event, that he was entitled to have his cause submitted upon the mere proof of the husband's ownership of the pick-up truck at the time of the collision. The defendant contends that the court properly directed a verdict because (a) at the time complained of the wife was an independent contractor, (b) that if there was ever a presumption of agency arising from the mere fact of the husband's ownership of the pick-up, the presumption was destroyed by the evidence which the plaintiff introduced and (c) that the evidence failed to show that Mrs. Campbell was her husband's agent in driving the pick-up because it did not show that she was engaged upon his business or that she was subject to his control.

The plaintiff proved by a filling station attendant that on June 29th, 1943 Mrs. Campbell came to the Redwine Oil Company and purchased fifty-five gallons of gasoline which she charged to her husband and that subsequently Mr. Campbell paid the account. Then he called Mrs. Campbell who testified that she was Alfred's wife and that he owned the pick-up which she was driving at the time of the collision. She said that she and her husband were farmers and that separately from the general business of farming she handled the poultry and eggs. She testified that the purpose of her trip to West Plains on the 29th day of June was to sell her poultry and eggs and to buy some chicken feed, all of which she did "on (her) own business." On that day the husband was "working in the harvest" and the following is her more detailed account of all the circumstances of her use of the pick-up truck:

"A. Well, I asked him for the pick-up to come to town, to take off my produce.

"Q. What produce did you bring? A. Chickens and eggs.

"Q. When you asked about that state whether or not he said anything about taking the men over to the field where they were working?

"A. Well, I asked him that morning, at the breakfast table, when he was coming to town; he said 'I don't know; I am very busy.' I said if I could get it I could bring the produce off myself; and he said 'I will let you know at noon about it.' So when he came in for dinner I said 'can I have the pick-up this evening to take off my cream and eggs -- the eggs should be taken off,' it was warm weather -- very hot, and I had 70 odd dozen of eggs, and I don't recall whether one or two coops of chickens I had on hand. He said 'if you will take us back to the field after noon you can have the pick-up.' And that's what I did.

"Q. And you did take them back to the field after noon? A. Yes, sir.

"Q. Then, after you took them back to the field, you came back and loaded up and came to West Plains, is that right? A. Yes, sir.

"Q. After you got to West Plains I presume you sold the produce you brought to town? A. Yes, at the Farmers' Exchange.

"Q. And collected the money for that? A. Yes, sir.

"Q. Then did you do some trading here? A. I bought some chicken feed I believe.

"Q. What did you do for your husband? A. When I took him back to the field he filled his tractor from the barrel that was in the truck, and he remarked to me: 'drive up to the Redwine Station and tell Charles Phelps to fill this barrel of gasoline; and that's what I did.

"Q. And you had the barrel filled with gasoline? A. Like he told me to.

"Q. And you were taking that back to your farm when you had the collision? A. It was in the pick-up.

"Q. And you were on the way back to the farm at the time you had the wreck, is that right? A. I was on my way home. . . .

"Q. Now this gasoline you bought here and took back to the farm, what did you use that for ordinarily? A. He used it for the tractor.

"Q. To operate a tractor there on the farm? A. Why, yes."

Legal liability may not be imposed upon Mr. Campbell for his wife's negligence in driving the pick-up merely by reason of their relationship. 5 Am. Jur., Sec. 362; 42 C.J., Sec 849. And furthermore we may assume, for the purposes of this opinion, that had the evidence conclusively shown that Mrs. Campbell was not in any manner engaged upon her husband's business but in point of fact was solely engaged upon an enterprise of her own -- such as taking her mother and sister for a ride or going after cherries for a hired hand -- that Mr. Campbell would not then be legally responsible for her negligent driving. Mast v. Hirsh, 199 Mo.App. 1, 4, 202 S.W. 275, 276; Norton v. Hines, 211 Mo.App. 438, 440, 245 S.W. 346, 348; Drake v. Rowan, 216 Mo.App. 663, 669, 272 S.W. 101, 103. We assume that there is no liability upon the husband in this case "unless the wife was using the automobile as the agent or servant of her husband, or in furtherance of plaintiff's (his) business." Norton v. Hines, supra. And, in...