Green v. Western Union Telegraph Co.

• Decision Date: 04 April 1933
• Docket Number: No. 22202.,22202.
• Parties: GREEN v. WESTERN UNION TELEGRAPH CO. et al.
• Court: Missouri Court of Appeals

58 S.W.2d 772

GREEN v. WESTERN UNION TELEGRAPH CO. et al.

No. 22202.

St. Louis Court of Appeals. Missouri.

April 4, 1933.

As Modified on Denial of Rehearing April 18, 1933.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Sarah Green against the Western Union Telegraph Company and another. Judgment for plaintiff, and defendants appeal.

Judgment against defendant named reversed, and appeal of defendant Harry Quest dismissed.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis (Francis R. Stark, of New York City, of counsel), for appellants.

W. M. Bates and Green, Henry, Remmers & Dearmont, all of St. Louis, for respondent.

KANE, Judge.

This is an action by plaintiff for personal injuries alleged to have been suffered when a bicycle owned and operated by defendant Harry Quest, a messenger for the Western Union Telegraph Company, ran into and against the plaintiff.

The trial resulted in a judgment and verdict for the plaintiff against both defendants, and, after unsuccessful motions for a new trial, the defendants appeal. The Western Union Telegraph Company filed an abstract and briefs, but the defendant Quest did not file any brief.

The sole question for decision here is whether defendant Quest (the messenger) was acting within the scope of his employment at the time of the accident, so that the doctrine of respondeat superior applies.

We shall address ourselves to this point, which requires us to pass upon the correctness vel non of the action of the trial court in refusing defendant's demurrer at the close of the case.

The mere fact that Quest was in the general employ of the telegraph company cannot make it liable. It was so held in the case of Farber v. Mo. Pac. R. R. Co., 32 Mo. App. 378, 382. The test is whether the servant at the time of the alleged accident was engaged in the performance of the master's business concerning which the servant was employed. Evans v. A. L. Dyke Automobile Supply Co., 121 Mo. App. 266, loc. cit. 277, 101 S. W. 1132; Garretzen v. Duenckel, 50 Mo. 104, 108, 11 Am. Rep. 405. The burden, therefore, was upon plaintiff to show that Quest was about the business of the telegraph company at the time he ran into plaintiff. Elliott v. Payne, agent, 293 Mo. 581, 239 S. W. 851, loc. cit. 856, 23 A. L. R. 706.

We are mindful that on demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to her case which the evidence tends to support. Peters v. Lusk, 200 Mo. App. 372, 206 S. W. 250; Wair v. Amer. Car & Foundry Co. (Mo. App.) 285 S. W. 155; Conley v. Lafayette Motor Co., 204 Mo. App. 37, 221 S. W. 165.

Defendant Harry Quest, a boy 19 years of age, was in the employ of the defendant the Western Union Telegraph Company as a messenger, and as such delivered telegrams for said company in a certain district within the city limits of St. Louis. Quest used his own bicycle in delivering messages for said company. His hours of employment were from 8:30 a. m. to 6 p. m., with an allowance of 30 minutes for lunch. The time of the lunch period varied from day to day, being determined by his superior, Theodore Turner. On July 18, 1928, as defendant Quest was returning at the close of his lunch period, riding his bicycle, he ran into plaintiff on the east side of Broadway just south of Washington boulevard, and, according to plaintiff knocked her down, as a result of which she suffered the injuries for which she seeks to recover in this action.

In examining the testimony with reference to the question as to whether or not Quest, at the time he ran into plaintiff, was acting within the scope of his employment, the record before us discloses that plaintiff read the deposition of said defendant Quest, thus making such testimony her own, and from which we quote the following:

"My name is Harry Quest; I am 19 years of age; I was 19 on March 21 this year; I live at 2122a East Fair.

"I was employed on July 18, 1928, and worked for the Western Union at the branch on 411 Franklin avenue. I reported for work on the morning of July 18, 1928, at 8:30. I went to lunch on that day at 12:35. I went to about 7 North Ninth Street. I returned from lunch at 1:05 p. m. I didn't attend to any business for the Western Union Telegraph Company between 12:35 and 1:05.

"I was employed by the Western Union as a messsenger boy. I didn't deliver any messages for the Western Union between 12:35 and 1:05 p. m. * * *

"Q. And in connection with your duties as a messenger boy, were you provided with a bicycle by the Western Union Telegraph Company? A. No, sir."

"Q. Did you have a bicycle? A. Yes, sir. I didn't have to use a bicycle, but you almost have to have something to get around. * * *

"Q. And if you didn't have a bicycle, you would have to pay street car fare? A. Yes, sir; or for other method of transportation. I don't remember just when I got the bicycle. I believe I bought the bicycle before I was employed. * * *

"The next day I made a report of this accident to the Western Union Telegraph Company. Mr. Simon called me up and then I went there and told him and made a report. He made specific inquiry as to what time I had gone to lunch. I was paid by commission, according to how many messages I delivered. They had different zones. They would get 2 cents for the first zone, 3 cents for the second, and 4 cents for the third. I didn't get any salary at all, straight commission. I was required to report for work each day at 8:30. I am not absolutely sure but I think I was on duty until 6 o'clock; from 8:30 in the morning until 6 o'clock in the evening. During the period that I was not engaged in the delivery of messages I was stationed at 411 Franklin Avenue."

"Q. Did you ever deliver any messages between 12:35 and 1:05 on any day while you were there? A. Well, maybe some days I did. The hour that I went to lunch was selected by Teddy Turner. He was a clerk down there. When the time came for me to go to lunch he would say: `Go on to lunch.' I was not the only messenger boy stationed there. We had half an hour for lunch. I was on duty from 8:30 in the morning until 6 in the evening, and he would select the time for me to go to lunch. I wouldn't...