Goldbaum v. James Mulligan Printing & Pub. Co.

• Decision Date: 03 April 1941
• Docket Number: 37,113,37,114
• Citation: 149 S.W.2d 348,347 Mo. 844
• Parties: Mary Goldbaum v. James Mulligan Printing and Publishing Company, a Corporation, and J. A. Wentz, Appellants
• Court: Missouri Supreme Court

149 S.W.2d 348

347 Mo. 844

Mary Goldbaum v. James Mulligan Printing and Publishing Company, a Corporation, and J. A. Wentz, Appellants

Nos. 37,113, 37,114

Supreme Court of Missouri

April 3, 1941

Appeal from Circuit Court of City of St. Louis; Hon. John W Joynt, Judge.

Reversed as to defendantPrinting Company and affirmed as to Wentz.

Fred H. Blades and Moser, Marsalek & Dearing for James Mulligan Printing and Publishing Company.

(1)The trial court erred in overruling the demurrers to the evidence, offered by defendantJames Mulligan Printing and Publishing Company, because the evidence conclusively shows that the defendant Wentz was not in the scope or course of his employment for the James Mulligan Printing and Publishing Company at the time of the accident.(a)The plaintiff called the defendant Wentz and made him her own witness.She is bound by his testimony and is precluded, in support of her case, from drawing any inferences contrary to the facts stated by him.Rodan v. St. Louis Transit Co.,207 Mo. 392, 105 S.W. 1061;Rashall v. St. Louis, I. M. & S. Ry. Co.,249 Mo. 522, 155 S.W. 426;George v. Mo Pac. Ry. Co.,213 Mo.App. 668, 251 S.W. 729;Raw v Maddox,93 S.W.2d 282;Stines v. Dillman,4 S.W.2d 477.(b)The courts of Michigan recognize the well-settled general rule that the test of the liability of the master for his servant's act is whether the latter was at the time acting within the scope of his employment.The phrase "in the course or scope of his employment," when used with reference to the acts of the servant, means while he is engaged in the service of his master, and while about the master's business.The liability of an owner of an automobile for the act of another who is operating it at the time an injury occurs is based upon the general rule of respondeat superior.Said doctrine applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged at the time, and in respect to the very transaction, out of which the injury arose.Hartley v. Miller,165 Mich. 115, 130 N.W. 336;Riley v. Roach,168 Mich. 294, 134 N.W. 14.(c) In the present case, Wentz, during the entire time after he left Decatur on his northbound trip to Whitehall, Michigan, and until he reached Decatur upon his return trip from Whitehall, was serving his own purposes solely.The accident occurred while he was yet two hundred miles or more north of Decatur.He was not "at the time and in respect to the very transaction out of which the injury arose," serving his employer.He had not, at the time, returned to the place where his duties to his employer required him to be.Under the well-settled rule, applied by the courts of Michigan in similar circumstances, the defendantJames Mulligan Printing and Publishing Company was not liable for Wentz's acts, on the occasion of the accident.Keiszkowski v. Odlewany,280 Mich. 388, 273 N.W. 741;Gray v. Sawatski,272 Mich. 140, 261 N.W. 276;Nevins v. Roach,249 Mich. 311, 228 N.W. 709;Irwin v. Williamson Candy Co.,268 Mich. 100, 255 N.W. 400;Drobnicki v. Packard Motor Car Co.,212 Mich. 133, 180 N.W. 459;Foote v. Huelster,272 Mich. 194, 261 N.W. 296;Hooks v. Western & So. Life Ins. Co.,268 Mich. 421, 256 N.W. 469;Murphy v. Kuhartz,244 Mich. 54, 221 N.W. 143 The same doctrine is followed in this State.Pesot v. Yanda,126 S.W.2d 240.(2)The trial court erred in refusing this appellant's demurrers to the evidence for the reason that the evidence convicted the plaintiff of contributory negligence as a matter of law.(a) Under the law of Michigan the burden of proof on the issue of contributory negligence rests upon the plaintiff throughout the proceeding, and never shifts to the defendant.The plaintiff must show freedom from contributory negligence as a condition to recovery.Gardner v. Russell,211 Mich. 647, 179 N.W. 41;Weaver v. Motor Transit Management Co.,252 Mich. 64, 233 N.W. 178.(b)Plaintiff's testimony that she looked both ways, but failed to see the defendant's automobile approaching, is of no avail, because the testimony she introduced, and the admitted physical facts, demonstrate that had she looked with ordinary care she could and must have seen defendants' approaching car, and had she so looked she could have avoided the injury.Molda v. Clark,236 Mich. 277, 210 N.W. 203;Molby v. Detroit United Ry.,221 Mich. 419, 191 N.W. 29;Russo v. Grand Rapids,255 Mich. 474, 238 N.W. 273.(c)Plaintiff's testimony that she looked when she was at the east side of the forty-foot concrete highway, waited for a northbound car to pass, and then walked eastward across the highway, does not relieve her from the imputation of negligence in walking across the entire width of the highway without again looking for approaching traffic.Richardson v. Williamson,249 Mich. 350, 228 N.W. 766;Jones v. Armstrong,231 Mich. 637, 204 N.W. 702;Young v. Martinich,279 Mich. 267, 271 N.W. 753;Haley v. Grosse Ile Rapid Transit Co.,290 Mich. 373, 287 N.W. 536;Lodato v. Camel,284 Mich. 217, 278 N.W. 825;Lemieux v. Ondersma,291 Mich. 469, 289 N.W. 218;Halzle v. Hargreaves, 233 Mich. 234, 206 N.W. 356.

R. C. Brinkman for J. A. Wentz.

Everett Hullverson for respondent; Orville W. Richardson of counsel.

(1)This appellant is bound by its trial theory submitted in its given Instruction II that it was entitled to a verdict only if Wentz "in operating his automobile was doing so on a mission of his own separate and apart from any duties for the Mulligan Printing Company."Stoll v. First Natl. Bank, 345 Mo. 582, 134 S.W.2d 97;Benz v. Powell,338 Mo. 1032, 93 S.W.2d 877;Toroian v. Parkview Amusement Co.,331 Mo. 700, 56 S.W.2d 134.Under such trial theory (the correct applicable law) it is immaterial which purpose in taking the journey was of primary importance to the employee, so long as the travel was caused at least concurrently by both the master's business and the servant's pleasure.(2) Under the doctrine of respondeat superior, the corporate defendant, which expected to and did derive a benefit from the travel, must answer to plaintiff for injury sustained while Wentz was performing that act.Chambers v. Kennedy,274 S.W. 730.(a)"Outside employees" or traveling salesmen, such as Wentz, are in a different class than "inside employees."The field of liability is greatly enlarged, particularly where the salesman has no fixed route, territory or hours of labor, and had a discretion to go to work where or when he chose.Papinaw v. Grand Trunk Ry. Co.,189 Mich. 441, 155 N.W. 545;Spero v. Heagany & Draper Co.,256 Mich. 403, 240 N.W. 21;Wahlig v. Krenning-Schlapp Groc. Co.,325 Mo. 677, 29 S.W.2d 128;Beem v. Lee Mercantile Co.,337 Mo. 114, 85 S.W.2d 985;Leilich v. Chevrolet Motor Co.,328 Mo. 112, 40 S.W.2d 601;Voehl v. Indemnity Ins. Co.,288 U.S. 162, 52 S.Ct. 380, 77 L.Ed. 676.(b) Service to the Mulligan Printing Company was, under all of the circumstances shown in evidence, at least a concurrent cause of the journey southward toward Decatur.At the very least, reasonable minds might well differ on that ultimate fact, and the question was properly submitted to the jury.Atkinson v. Hanson,293 Mich. 97, 291 N.W. 236;Emery v. Ford,234 Mich. 11, 207 N.W. 856;Nord v. West Michigan Flooring Co.,238 Mich. 669, 214 N.W. 236;Kerns v. Lewis,249 Mich. 27, 227 N.W. 727;Anderson v. Schust,262 Mich. 236, 247 N.W. 167;Gorman v. Jaffa,248 Mich. 557, 227 N.W. 775;Wilhelm v. Angell, Wilhelm & Shreve,252 Mich. 648, 234 N.W. 433;Mann v. Bd. of Education of Detroit,266 Mich. 271, 253 N.W. 294;Stockly v. School District,231 Mich. 523, 204 N.W. 715;Teague v. Laclede-Christy Clay Products Co.,331 Mo. 147, 52 S.W.2d 880;Waters v. Hays,130 S.W.2d 220;State ex rel. Waters v. Hostetter,344 Mo. 443, 126 S.W.2d 1164;Byrnes v. Poplar Bluff Ptg. Co.,74 S.W.2d 20;Cotton v. Ship-by-Truck Co.,337 Mo. 270, 85 S.W.2d 80;Borgstede v. Waldbauer,337 Mo. 1205, 88 S.W.2d 373;Yerger v. Smith,338 Mo. 140, 89 S.W.2d 66;Hein v. Peabody Coal Co.,337 Mo. 626, 85 S.W.2d 604;Brunk v. Hamilton-Brown Shoe Co.,334 Mo. 517, 66 S.W.2d 903;Sawtell v. Stern Bros. & Co.,226 Mo.App. 485, 44 S.W.2d 264;Fox v. Atwood-Larson Co.,203 Minn. 245, 280 N.W. 856;Vogel v. Nash-Finch Co.,196 Minn. 509, 265 S.W. 350;Johnson v. Nash-Finch Co.,197 Minn. 616, 268 N.W. 1;Efstathopoulos v. Federal Tea Co.,119 N. J. L. 408, 196 A. 471;Welsh v. Feyka,119 Pa.Super. Ct. 49, 179 A. 810;Irwin-Neisler & Co. v. Industrial Comm.,346 Ill. 89, 178 N.E. 357;Schmiedeke v. Four Wheel Drive Co.,192 Wis. 574, 213 N.W. 292;Webster v. Mountain States T. N. T. Co.,108 Mont. 188, 89 P.2d 602;O'Leary v. N. D. Workmen's Comp. Bureau,62 N.D. 457, 243 N.W. 805;Primos v. Gulfport, L. & C. Co.,157 Miss. 770, 128 So. 507;Christie v. Robinson Const. Co.,59 Idaho 58, 81 P.2d 65;Wineland v. Taylor,59 Idaho 401, 83 P.2d 990;Fleeger v. Nicholson Bros.,100 Ind.App. 103, 192 N.E. 842;Porter Co. v. Industrial Comm.,301 Ill. 76, 133 N.E. 652;Shahan v. Jones,115 W.Va. 749, 177 S.E. 774;Clift v. Donegan,237 Ala. 309, 186 So. 476;Carter v. Bessey,97 Utah 427, 93 P.2d 490;Mosher v. Cashmere Grotto,257 A.D. 886, 12 N.Y.S. (2d) 53;Eckel v. Richter,191 Wis. 409, 211 N.W. 158;Cusimano v. Spiess Sales Co.,153 La. 551, 96 So. 118;Marchand v. Russell,257 Mich. 96, 241 N.W. 209;Rabaut v. Venable,285 Mich. 111, 280 N.W. 129;Amer. Law Institute, Restatement of Law of Agency, pp. 526, 528, 529, 530-531;5 Blashfield's Cyclopedia of Automobile Law, sec. 3034.

OPINION

Tipton, P. J.

In the Circuit Court of the City of St. Louis Missouri, respondent obtained a judgment against both appellants in the sum of $ 10,000 for personal injuries she received as a result of...