Hodge v. Feiner

• Citation: 90 S.W.2d 90,338 Mo. 268
• Decision Date: 04 January 1936
• Docket Number: 34120
• Parties: Fern Singelton Hodge v. Arnold Feiner, By Charles Feiner, His Guardian Ad Litem, Appellant
• Court: United States State Supreme Court of Missouri

90 S.W.2d 90

338 Mo. 268

Fern Singelton Hodge v. Arnold Feiner, By Charles Feiner, His Guardian Ad Litem, Appellant

No. 34120

Supreme Court of Missouri

January 4, 1936

Rehearing Denied January 4, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Judgment reversed.

Jones Hocker, Sullivan, Gladney & Reeder, Web A. Welker, Vincent L. Boisaubin and Arnot L. Sheppard for appellant.

(1) An infant has no legal capacity to appoint an agent. Such appointment is utterly void. Curtis v. Alexander, 257 S.W. 436; Poston v. Williams, 99 Mo.App. 518; Turner v. Bondalier, 31 Mo.App. 586. (2) An infant is not liable for the torts of his purported agents or servants. The doctrine of respondeat superior cannot be invoked against an infant for the tort of his alleged agent or servant. 14 R. C. L., sec. 36, p. 260; Covault v. Nevitt, 146 N.W. 1115; Burns v. Smith, 64 N.E. 94; Robbins & Sanger v. Mount, 33 How. Prac. 24; Gillett v. Shaw, 83 A. 394; Wilcox v. Wunderlich, 272 P. 223. (3) Mere permission to another to use one's automobile does not create an agency nor impose liability upon the owner. An actual agency must be established, and it must be shown that the agent or servant at the time was actually engaged in the business or service of his master. Keim v. Blackburn, 280 S.W. 1046; Mast v. Hirsh, 199 Mo.App. 1, 202 S.W. 275; Mount v. Naert, 253 S.W. 966; Allen v. Coglizer, 208 S.W. 102; Williams v. Younghusband, 57 F.2d 139; 2 Cyclopedia of Automobile Law, p. 1315, sec. 1; Michael v. Pulliam, 215 S.W. 763; Borah v. Zoellner Motor Car Co., 257 S.W. 145.

F. A. Foster and Strubinger & Strubinger for respondent.

(1) The court did not err in refusing to give the instruction offered by appellant in the nature of a demurrer to the evidence at the close of the whole case. (a) Appellant did not try this case on the theory that he could not be held liable for the negligent acts of his codefendant, Edwin Williams, on account of appellant's minority, but tried and submitted the cause solely on the theory that the said Edwin Williams was not acting as the agent of appellant at the time of the collision mentioned in the evidence. Appellant's theory upon which cause was submitted must be adhered to on appeal. Lackey v. Wilder, 33 S.W.2d 1013; Caine v. Physicians' Indemnity Co., 45 S.W.2d 907; State ex rel. Athletic Tea Co. v. Cameron, 273 S.W. 746; Pienieng v. Wells, 271 S.W. 62; Haskins v. De Soto, 35 S.W.2d 964. (b) There was evidence warranting a finding that appellant claimed ownership, and had the exclusive use and control of the Ford automobile involved in the collision, and that at the time in question it was being operated by his codefendant, Edwin Williams, under the request and instruction of appellant and for his purpose and advantage, namely, to drive appellant's guests, and thus allow appellant opportunity to transact business of a personal nature. This was sufficient to create agency. Campbell v. Arnold, 106 N.E. 599, 219 Mass. 160; McKerall v. Ry. Co., 257 S.W. 170; McCarter v. Burger, 6 S.W.2d 979. (2) The court did not err in giving the plaintiff's Instruction 2. Instruction 2 submitted the issue of agency. Since the appellant's Instruction 6 submitted the same issue, or theory, he will not be heard to complain that the plaintiff's instruction is erroneous. Kincaid v. Birt, 29 S.W.2d 97; Everhart v. Bryson, 149 S.W. 310, 244 Mo. 507.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, plaintiff below, obtained a judgment in the Circuit Court of the City of St. Louis, Missouri, in the sum of $ 1,000 against Edwin Williams and appellant, Arnold Feiner. Plaintiff's alleged cause of action arose out of a collision of two automobiles. From this judgment Arnold Feiner appealed to the St. Louis Court of Appeals. That court, in an opinion by Becker, J., reported in 78 S.W.2d 478, reversed the judgment of the circuit court as against Feiner. The court deemed its opinion to be in conflict with an opinion of the Springfield Court of Appeals in the case of McKerall v. St. Louis-San Francisco Railroad Co., 257 S.W. 166, and, therefore, certified the case to this court.

We quote from the Court of Appeals the statement of facts and the ruling of law thereon, which, if correct, is decisive of the case. It reads:

"The following resume of the record in the case is sufficient for the purpose of disposing of this case here on appeal: Charles Feiner, the father of the minor defendant Arnold Feiner, was the owner of a Ford automobile, the son having the privilege of using the car whenever he desired to do so. On the evening of September 12, 1930, Arnold Feiner, then eighteen years of age, took the automobile and picked up three of his companions with the intention of spending the evening together. They stopped at a filling station at Clayton and Oakland avenues, where Arnold Feiner got out of the machine and engaged in a personal conversation with one of the attendants at the filling station. After fifteen minutes or more, Feiner's three companions, who had remained in the automobile, became impatient and began sounding the horn of the automobile. Feiner, not having finished his conversation, told the boys to go ahead and drive the car around and to come back in about ten minutes. Thereupon Edwin Williams, one of the boys in the car, took the wheel and drove away with his two companions. They drove about two miles from the filling station when, at the corner of Kingshighway Boulevard and Clayton Avenue while Edwin Williams was driving, the automobile collided with another automobile in which plaintiff was riding as a passenger, resulting in the injuries for which plaintiff seeks to recover in this action.

"At the close of plaintiff's case, as well as at the close of the entire case, the minor defendant Arnold Feiner requested instructions in the nature of demurrers, each of which was overruled. The case was submitted by plaintiff to the jury upon instructions based upon the theory that Edwin Williams was operating the car at the time of the accident under the instructions of the minor defendant Arnold Feiner, to go upon an errand for him, and was, therefore, an agent for the said Arnold Feiner, and seeking to hold defendant Arnold Feiner liable for the negligence of his said agent while upon the errand for his principal.

"(1) We need to advert to but one of the assignments of error to dispose of this appeal, namely, that the trial court erred in failing and refusing to give an instruction offered at the close of the case, for the reason that Arnold Feiner, the appealing defendant, was an infant at the time of the accident and was not in charge of the automobile in question at the time of the collision in which plaintiff sustained the alleged injuries for which she seeks to recover in this action, and that, therefore, said Arnold Feiner, a minor, could not be held responsible for the act of his alleged agent or servant, the defendant Edwin Williams, who was the driver of the automobile, since an infant cannot legally appoint an agent or servant and is therefore not liable for the torts of alleged agents or servants. The point is well taken.

"The theory of plaintiff's case is that the defendant Arnold Feiner, an infant, was liable for the negligent act of the defendant Edwin Williams, his alleged agent and servant, under the doctrine of respondeat superior. The relationship of master and servant, or that of principal and agent, exists only in contract, and each requires the same capacity in the contracting parties as in the formation of any other agreement. If either of the parties is incapable of contracting, there is no mutuality, and neither is bound. It follows that the liability of principals for the negligence or other misconduct of their agents arises from the express or implied authority of the latter and the implied guaranty of the former, as it is the foundation in the contract which creates the relationship and by which it is implied that persons shall not suffer by the negligence of those whom he employs.

"It has been held repeatedly that an infant cannot appoint an agent, and that such act is absolutely void and cannot be ratified by him. [Curtis v. Alexander (Mo.), 257 S.W. 432, l. c. 436; Turner v. Bondalier, 31 Mo.App. 583; Poston v. Williams, 99 Mo.App. 513, 73 S.W. 1099.] It therefore follows that though an infant may be liable for his own torts, yet since he cannot appoint an agent, he cannot become liable for torts committed by a servant in the course of his employment. [14 R. C. L., sec. 36, p. 260; Covault v. Nevitt, 157 Wis. 113, 146 N.W. 1115, 51 L. R. A. (N. S.) 1092, Ann. Cas. 1916A, 959; Burns v. Smith, 29 Ind.App. 181, 64 N.E. 94, 94 Am. St. Rep. 268; Trueblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756; Robbins & Sanger v. Mount, 27 N.Y.S. 553, 33 How. Prac. 24; 1 Cooley on Torts (3 Ed.), 188.]

"Since in the case before us it is admitted that the appealing defendant, Arnold Feiner by Charles Feiner, his guardian ad litem, was an infant at the time in question, it follows from what we have ruled above that the trial court erred in failing and refusing to sustain the demurrer offered at the close of the case."

We deem the ruling of the Court of Appeals correct as applied to the facts stated. The demurrer at the close of the evidence should have been sustained. The liability of the appellant Feiner, rested solely upon the doctrine of respondeat superior. In other words Feiner was not present at the time of the collision, and for plaintiff to hold Feiner liable it was incumbent upon her to prove that Williams, the driver of the car, was the agent of Feiner and engaged on an errand in Feiner's behalf. Since Feiner was a minor he could not be held in tort on...