Holloway v. Schield

• Decision Date: 16 June 1922
• Parties: EDWARD HOLLOWAY v. WILLIAM G. SCHIELD and WALTER E. FISK; WILLIAM G. SCHIELD, Appellant
• Court: Missouri Supreme Court

243 S.W. 163

294 Mo. 512

EDWARD HOLLOWAY v. WILLIAM G. SCHIELD and WALTER E. FISK; WILLIAM G. SCHIELD, Appellant

Supreme Court of Missouri, First Division

June 16, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Affirmed.

Bryan Williams & Cave for appellant.

The court erred in sustaining the plaintiff's motion for new trial as to the defendant Schield and in setting aside the judgment theretofore entered in favor of the defendant Schield for the following reasons: (1) The petition charged (and the plaintiff is bound thereby) that the defendant Schield employed and instructed the defendant Fisk to store Schield's car in the garage of Fisk, to call for and deliver said car from said garage to defendant Schield, and the petition charges that the accident happened while the car was being so called for or delivered and the evidence unquestionably shows that Fisk was an independent contractor. (2) The facts are undisputed, and under the facts and under these allegations of the petition, as a matter of law, the relation of master and servant did not exist between the defendant Schield and the driver O'Dowd. Sweetnam v Snow, L. R. A. 1916 B, (Mich.) 757; Ouellette v. Superior Motor Works, 157 Wis. 531, 52 L. R. A. (N. S.) 299; Neff v. Brandies, 39 L. R. A. (N. S.) (Neb.) 933. Cases cited in the notes to the three foregoing cases: Flori v. Dolph, 192 S.W. 949; Standard Oil Co. v. Anderson, 212 U.S. 215; Scherer v. Bryant, 273 Mo. 597; Alexander v. Pub. Co., 197 Mo.App. 601; Simmons v. Murray, 232 S.W. 754. (3) The petition alleges (and the plaintiff is bound thereby) that the defendants Fisks were employed to deliver the car and under that allegation there can be no recovery on the theory that O'Dowd was loaned to defendant Schield to deliver the car and thus became the servant of Schield. (4) The petition alleges (and the plaintiff is bound thereby) that the defendant Schield employed defendant Fisk to call for and deliver the car and contains no allegation of any agreement on the part of Schield to be liable for the acts of Fisk or his employees in so doing. And absent such allegation, the plaintiff cannot be permitted to recover on any such agreement in any ordinary action of tort, even if such an agreement existed.

John F. Maloney and Safford & Marsalek for respondent.

(1) Where a servant, in the general employ of one person, is borrowed by another to perform a specific service, the third person, and not the general employer, is responsible for the servant's negligence while performing said specific service. Scherer v. Bryant, 273 Mo. 596; Hilsdorf v. Railroad, 45 Mo. 98; Healey v. Range Co., 161 Mo.App. 483; Alexander v. Pub. Co., 197 Mo.App. 601; Atherton v. Coal Co., 106 Mo.App. 591; Garven v. Railroad, 100 Mo.App. 617; Snider v. Crawford, 47 Mo.App. 13; Brown v. Smith, 68 Ga. 274, 12 S.E. 411; Wood v. Cobb, 13 Allen (Mass.) 58. (2) Under the terms of the arrangement between Schield and Fisk, O'Dowd, while driving the car from Schield's home to the garage, was the servant of Schield. Authorities above; Smith v. Railroad, 85 Mo. 430; Thayer v. Checkley, 127 F. 556. (3) The petition alleges "that in taking said motor vehicle from the Buckingham Hotel, in the city of St. Louis, to 718 Bayard Avenue, defendants herein operated said machine," etc. The allegation that defendant Schield employed defendant Fisk to store and wash the machine at his garage, and to deliver it from the garage "to defendant W. G. Schield" is not repugnant to the former statement, so as to preclude plaintiff from showing that at the time of the accident Schield was operating it through another servant, O'Dowd. Hutchinson v. Safety Gate Co., 247 Mo. 110; Fulwider v. Gas. Co., 216 Mo. 591; Rinard v. Railroad, 164 Mo. 270; Hendricks v. Calloway, 211 Mo. 536, 558; Henderson v. Henderson, 55 Mo. 546; Secs. 1160, 1257, R. S. 1919.

ELDER, J. James T. Blair and Graves, JJ., concur.

OPINION

ELDER, J.

This is an appeal by defendant William G. Schield from an order setting aside a judgment rendered on a directed verdict in favor of said defendant and granting plaintiff a new trial. In granting a new trial as to Schield, the trial court also sustained a motion for a new trial filed by defendant Fisk, against whom a verdict and judgment for $ 8250 had been rendered. We are here concerned, however, solely with the appeal of defendant Schield.

Plaintiff's action is for damages for personal injuries sustained when struck by defendant Schield's automobile. The petition alleges in part as follows:

"That at all times herein referred to defendant W. C. Schield owned the motor vehicle herein referred to, and employed and instructed defendants Walter E. Fisk and Edith Fisk to store and wash said motor vehicle at a garage at or near 718 Bayard Avenue and deliver said motor vehicle from said point to defendant W. G. Schield; that in taking said motor vehicle from the Buckingham Hotel, in the city of St. Louis, to 718 Bayard Avenue, defendants herein operated said machine eastwardly in a public highway on Delmar Boulevard at or near Aubert Avenue, in the city of St. Louis, and turned same north into Aubert Avenue toward plaintiff, who was then riding westwardly on a motor-cycle in a public highway on Delmar Boulevard at or near Aubert Avenue, and defendants in so doing negligently operated said motor vehicle by means of gasoline at an excessive, unsafe and dangerous rate of speed, negligently caused and permitted said motor vehicle to turn suddenly northwardly, negligently failed to give plaintiff any reasonable, timely and sufficient warning of their intention to cause and permit said motor vehicle to turn, negligently failed to keep a vigilant watch ahead of said motor vehicle, negligently failed to give plaintiff any reasonable, timely and sufficient warning of the approach of said motor vehicle, negligently failed to properly guide said motor vehicle, negligently failed to reduce the speed of and stop said motor vehicle, and negligently operated said motor vehicle without any reasonably good and sufficient brakes, . . . and defendants, by the negligence aforesaid, directly and proximately caused said motor vehicle, propelled by gasoline, as aforesaid, to strike plaintiff and the motor-cycle he was riding upon, as aforesaid, and thereby directly and proximately caused plaintiff to come in violent contact with said motor-cycle and the pavement of said street and objects thereon, and thereby to be injured and damaged as hereinafter set out."

The answer of defendant Schield was a general denial, coupled with a plea of contributory negligence. The abstract of the record recites that:

"There was evidence tending to prove the formal allegations of the petition, and that the plaintiff was injured on the 3rd day of May, 1918, as a result of being struck by an automobile owned by the defendant, W. G. Schield, which, at the time, was being driven by one Henry J. O'Dowd eastwardly along Delmar Avenue, in the city of St. Louis, and turning northwardly into Aubert Avenue, in the city of St. Louis. The ownership of the automobile by the defendant, W. G. Schield, was admitted. There was evidence of negligence on the part of the driver, Henry J. O'Dowd, offered by the plaintiff, sufficient to take the case to the jury under the allegations of the petition.

"There was evidence tending to show that the defendant, Walter E. Fisk, operated a public garage at 718 North Bayard Avenue, in the city of St. Louis, and that the defendant, W. G. Schield, some time prior to the accident, had made an arrangement with the defendant, Fisk, for the storing of the said automobile; and that Henry J. O'Dowd was an employee of the defendant, Fisk, and was driving the automobile at the time of the accident.

"The only evidence with regard to the relations existing between the defendant W. G. Schield and the defendant Walter E. Fisk and Henry J. O'Dowd, who was driving the automobile at the time of the accident, was the testimony of Walter E. Fisk."

Defendant Fisk testified in part as follows:

"Q. Mr. Fisk, on May 3, 1918, did you have in your employ at the Standard Garage a man Henry O'Dowd? A. Yes, sir.

"Q. He is now dead, is he not? A. Yes, sir.

"Q. What was his occupation at the Standard Garage? A. Well, his occupation was cleaning cars and general work around there.

"Q. Was he employed to work as a chauffeur there? A. He was employed in the garage to clean cars.

"Q. Did he have any work -- did you require him to do any work outside of this garage? A. No, sir.

"Q. Well, did the Standard Garage, the business organization, the partnership, ever require him to do any work outside of the garage? A. No, sir.

"Q. Now, will you tell the jury what the arrangement was between your concern and Mr. Schield as to what you were to do and what you were not to do, with reference to his machine? A. Yes, I can explain that.

"Q. Will you explain, please? A. Mr. Schield drover over there one -- well, about a year before the accident -- to make arrangements about me to take care of his automobile, and he asked me my price and I told him, and he asked me the price of what I would charge him to grease it twice a month, and I told him. Then after we got through he said he wanted his car brought over to the Buckingham, and I said I wouldn't run any risk of taking it over there -- I couldn't afford to -- that the man --

"Mr Marsalek: Continue, please. A. And I told Mr. Schield that I had always had it on my bill-heads and had a sign in the garage, 'Not responsible for any car delivered or called for,' and had it on my bill-heads, 'By a man requesting his car delivered would make the chauffeur his employee and not mine,' and I told Mr. Schield the same thing.

"Q. ...