Gardner v. Simmons

• Decision Date: 09 September 1963
• Docket Number: No. 1,No. 49646,49646,1
• Citation: 370 S.W.2d 359
• Parties: Carolyn S. GARDNER, Appellant, v. Boyd Dwight SIMMONS, and C. E. Russell, doing business as Russell General Tire Service, Respondents
• Court: Missouri Supreme Court

Page 359

370 S.W.2d 359

Carolyn S. GARDNER, Appellant, v. Boyd Dwight SIMMONS, and C. E. Russell, doing business as Russell General Tire Service, Respondents.

No. 49646.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1963.

Leland C. Bussell, Joe C. Greene, Bussell & Hough, Springfield, for appellant.

B. H. Clampett, Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for respondents, C. E. Russell.

COIL, Commissioner.

Mrs. Carolyn Gardner claimed $20,000 as damages for injuries she allegedly sustained when she was a passenger in an automobile driven by her husband and which injuries she averred were the result of the negligence of respondent Simmons. Respondent Russell was joined as a defendant on the theory that Simmons was his agent acting within the scope of his employment at the time of the accident. At the close of all the evidence the trial court directed a verdict for the employer, Russell. The jury awarded Mrs. Gardner $3,500 against the employee, Simmons. Mrs. Gardner has appealed from the ensuing judgment and here contends the trial court erred in directing a verdict for Russell and in refusing to grant her a new trial on the ground that the verdict was so inadequate as to indicate bias, prejudice, and misconduct on the part of the jury and on the ground that respondent Russell was permitted to improperly cross-examine appellant with respect to prior accidents.

Respondent Simmons has not appealed from the judgment against him and has not filed a brief.

Respondent Russell contends that the trial court correctly directed a verdict for him for the reasons that the evidence showed as a matter of law that Simmons was an independent contractor and not Russell's employee and because, even if Simmons was an employee, he was not acting within the scope of his employment at the time of the accident.

In determining whether Simmons was an independent contractor and thus that Russell was not liable under the doctrine of respondeat superior, we consider the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to appellant and disregard respondents' evidence not favorable to her and contrary to her evidence, Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 535[1-4], and we bear in mind that 'Each case must depend on its own facts and no single test considered alone is conclusive of the ultimate test, the right to control. * * * [and] * * * If the facts and legitimate inferences to be drawn therefrom are in dispute the issue is one for the jury. * * * Further, whether or not the right of control existed in a particular case is ordinarily a question of fact for the jury.' Benham v. McCoy, Mo., 213 S.W.2d 914, 919[7-11]. Furthermore, contrary to Russell's contention, the burden of proof on appellant 'was only to prove the fact of agency, and not to disprove the theory of independent contractor.' Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142, 144; 57 C.J.S. Master and Servant Sec. 501b(2), p. 68.

The evidence so viewed tended to show these facts. Boyd D. Simmons had been employed by C. E. Russell, d/b/a Russell General Tire Service, in Springfield for the fourteen months prior to the accident on March 20, 1961. He was employed for the purpose of calling on and attempting to sell tires to commercial accounts, such as trucking companies and others who owned trucks, to sell merchandise in Russell's tire store, and to make adjustments with purchasers of tires, apparently who had complained that a particular tire had not given proper service. Those adjustments were made in the store. Simmons was paid a salary of $400 per month and, if he sold sufficient merchandise, would receive commissions in addition to the $400. At the time Simmons was hired, Russell told him that he would need an automobile and that Russell would not furnish one. Consequently, the understanding between the parties was that Simmons would furnish his own transportation and he said nothing was said about whether he would get compensation for automobile expenses--it simply was understood that Simmons would furnish his own transportation, and that it was necessary that Simmons have an automobile in order to keep his job. Russell furnished Simmons with the names of some accounts to call on and he instructed Simmons to go along with a Mr. Hueton, who was a representative of General Tire Company who lived in Joplin, whenever Simmons felt it would be advantageous. On the morning of March 20, 1961, Simmons had an eight o'clock appointment with Hueton at Russell's store from where the two were to call on Ozark Wholesale Grocery Company in an attempt to sell that organization some tires. Mr. Simmons lived in Ash Grove (a few miles west of Springfield) and was driving on Highway 160 toward Springfield when his car stopped running. He left it on the shoulder and hitch-hiked to a place close to his employment. He arrived at the Russell General Tire Service about 8:30 a. m., and his employer inquired as to why he had not been there to keep the eight o'clock appointment with the General Tire representative. Simmons explained that his car had quit running and that he had hitch-hiked. Hueton had waited for Simmons and they left in Hueton's car for the Ozark Wholesale Grocery Company.

Upon completion of that call, by prearrangement Hueton took Simmons to the home of a Mr. Anderson (who was a mechanic and who had theretofore done work on Simmons' automobile) to engage him to see what was wrong with Simmons' car. Anderson followed them (Hueton and Simmons) in his automobile and upon arrival at Simmons' car Hueton left to return to Joplin. Anderson, the mechanic, checked and adjusted the points on Simmons' automobile and then discovered that there was no gasoline in the car although the gauge showed there was. After getting the car started, Simmons in his car and Anderson in his, drove back to Anderson's house whereupon Anderson got into Simmons' car in order to 'check it out' to see whether anything else needed to be done to it so that Simmons could go back to work. While they were checking the automobile (with Simmons driving), the accident giving rise to this litigation occurred.

After the accident and the usual statements to the police, etc., Simmons and Anderson had lunch and returned to Russell General Tire Service and Simmons 'continued his work there that afternoon.'

It is well established, Benham v. McCoy, supra, that the ultimate test in determining whether one is a servant or an independent contractor is the employer's right to control the details of the employee's work and so, of course, the question is not whether an employer did exercise control over the details of an employee's work but whether the employer had the right to do so. Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 797. We bear in mind also that the only question on this aspect of the case is whether appellant made a submissible case as to the existence of a masterservant relationship between Russell and Simmons at the time of the accident, even though there may have been other evidence from which a jury reasonably could have found that Simmons was an independent contractor and, further, as noted heretofore, that the burden was not on plaintiff to disprove the theory that Simmons was an independent contractor.

It is clear to us that there was substantial evidence from which a jury reasonably could have found that Russell had the right to control the manner in which Simmons performed the duties for which he had been employed. The reasons for that conclusion are these. The evidence showed that Simmons was employed not only to make outside sales to commercial accounts but his duties also included selling to customers who came into the tire store and making tire adjustments in that store; that Mr. Russell furnished Simmons a partial list of accounts on which he was to call and that Russell directed Simmons to cooperate with the General Tire Company's representative when such seemed advantageous to the promotion of Russell's business. The foregoing evidence was substantial and sufficient to support a reasonable inference that Russell had the right to direct Simmons to stay in the store all day or each day for a week or for an hour on certain days or for three hours every day, or for any other periods of time the employer might choose, and that Russell had the right to require Simmons to sell tires and make tire adjustments during the periods when he was in the store, and that Russell had the right when he so chose to tell Simmons on whom he was to call for outside commercial sales. The evidence showed further that Russell paid Simmons a fixed salary of $400 per month irrespective (in so far as the evidence shows) of whether Simmons sold any merchandise to commercial accounts and that he was to receive commissions in addition to his fixed salary only in the event that commissions on his total sales exceeded the amount of his stated salary. The fact of the fixed salary is important in connection with the further fact that the employer did not furnish an automobile or pay for the operation of Simmons' automobile, because under the evidence in this case the jury reasonably could have found that the facts that Simmons furnished his own automobile and paid the expenses therefor were considered by the employer in fixing the amount of Simmons' monthly salary. See Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 766.

With respect to the automobile question, respondent Russell contends (in another portion of his brief, but probably we should here interpolate our determination of that question) that there was no agreement that an automobile was to be furnished by Simmons as a means of transportation; that the only agreement was that Simmons was to furnish his own transportation with complete freedom of choice as to the mode. The transcript discloses, however, that there can be no doubt but that the conversation between...