Horn v. Rhoads

• Citation: 296 S.W. 389,317 Mo. 572
• Decision Date: 25 June 1927
• Docket Number: 25941
• Parties: Frank Horn v. E. S. Rhoads, Appellant
• Court: United States State Supreme Court of Missouri

296 S.W. 389

317 Mo. 572

Frank Horn v. E. S. Rhoads, Appellant

No. 25941

Supreme Court of Missouri

June 25, 1927

Transferred from Kansas City Court of Appeals.

Reversed.

Cleary & Barnett and John R. James for appellant.

(1) Appellant, the alleged employer, is liable for the negligence of Johnson, the alleged agent or servant, only in the event Johnson: (a) Was the agent or servant of appellant, and (b) was, at the time and place in question, acting within the scope of his employment. Babbitt on Law Applied to Motor Vehicles (3 Ed.) sec. 1085; Home Ins. Co. v. Henderson Lodge, 257 S.W. 422; Wrightman v. Glidewell, 210 Mo.App. 367; Ursch v. Heier, 210 Mo.App. 129; Guthrie v. Holmes, 272 Mo. 215. (2) Johnson was neither the agent nor the servant of appellant. (a) His relationship to appellant does not conform to the definition of either an agent or a servant. 1 Labbatt, Master & Servant (2 Ed.) sec. 2; 4 Elliott on Contracts, sec. 2831. (b) In order to constitute Johnson either an agent or servant of appellant, the evidence must show a contractual relationship between Johnson and appellant. Babbitt on Law Applied to Motor Vehicles (3 Ed.) sec. 1085. (c) No contractual relationship of any kind existed between Johnson and appellant. McCoy v. Griffith, 196 Ky. 406. (d) Even if any contractual relationship did exist, it was such as to constitute Johnson merely an independent contractor. Smith v. Howard, 256 S.W. 402; Stamper v Jesse, 250 S.W. 1008; Thomassen v. Water & Light Co., 251 S.W. 450; Premier Motor Mfg. Co. v Tilford, 111 N.E. 645; Berry on Automobiles, sec. 1033, p. 961; Goodrich v. Fence & Automobile Co., 135 N.W. 58; Barton v. Studebaker Corporation, 189 P. 1025; Wright v. Motor Car Co., 177 P. 237; Calhoon v. Mining Co., 202 Mo.App. 564; Wooley v. Doby, 92 S.E. 295; Emery v. McCombs, 167 N.Y.S. 474; Coonse v. Bethold, 125 N.E. 416; Sweetman v. Snow, L. R. A. 1916 B (Mich.) 757; Ouellete v. Motor & Machine Corp. (Wis.), 52 L. R. A. (N. S.) 299; Neff v. Brandies, 39 L. R. A. (N. S.) 933. (e) Even if any contractual relationship did exist between Johnson and appellant, such as to constitute Johnson the agent of appellant, such contractual relationship covered only Johnson's right to sell the car and did not include any right in him to the possession and use of the car. His possession and use of the car was merely that of licensee. Mere license to use the car does not create agency or the relation of master and servant. Mount v. Naert, 253 S.W. 966; Hays v. Hogan, 273 Mo. 1; Drake v. Rowan, 272 S.W. 101.

Harry G. Kyle, Kenneth W. Tapp and Walter A. Raymond for respondent.

(1) The relation of master and servant may be proved by circumstances. 26 Cyc. 1519; Sandifer v. Lynn, 52 Mo.App. 553; Roberson v. Clevenger, 111 Mo.App. 622, 86 S.W. 512; McCloud v. Western Union Tel. Co., 170 Mo.App. 624, 157 S.W. 101; Singer Mfg. Co. v. Rahn, 132 U.S. 518; Hinkle v. Railroad, 199 S.W. 227. (2) The relation of appellant and Johnson was that of master and servant. Byrne v. Railroad Co., 61 F. 605; Standard Oil Co. v. Anderson, 212 U.S. 215; Hoffman v. Motors Co., 125 N.E. 845; Vaughn v. Davis & Sons, 221 S.W. 782; Fitzgerald v. Cardwell, 226 S.W. 971; Simmons v. Murray, 234 S.W. 1009; Borah v. Motor Co., 257 S.W. 145. (3) The relation of appellant and Johnson was properly submitted to the jury, and its finding should not be disturbed. Rosenberg v. Dahl, 162 Ky. 92, 172 S.W. 113, Ann. Cas. 1916 E, 1110; Standard Oil Co. v. Parkinson, 152 F. 681; Muex v. Holler, 162 S.W. 688; Burgess v. Garvin, 272 S.W. 108; Thomassen v. Water & Lt. Co., 278 S.W. 979.

OPINION

Ragland, J.

Plaintiff, who was driving along a public highway near Kansas City in an automobile, suffered injuries to his person and to his car through a collision with another automobile which was proceeding along the highway in an opposite direction and which was owned by defendant but driven and operated by one Johnson. The collision resulted from Johnson's negligence. This action is to recover the damages sustained by plaintiff. Defendant was not in charge of his automobile in person, he was not even present. If he is liable for plaintiff's injuries, it is because Johnson was at the time of the occurrence acting in the capacity of agent or servant of the defendant. Whether he was or not is the sole question in the case. For a solution of that question the evidence must be looked to.

At the times hereinafter referred to, defendant was engaged in "the mill business," manufacturing doors and sashes; Johnson was an automobile mechanic, not regularly employed as such, nor owning a business of his own, but doing "odd jobs" here and there as occasion offered. He was never at any time in defendant's general employ for any purpose. In the early part of 1922, defendant had a five-passenger touring car which he had been using for a number of years and which he desired to have "overhauled" and put "in good running condition." This work Johnson contracted to do, and did do, for the lump sum of $ 100. The work of putting the car in repair was done on defendant's premises and was completed and paid for about the middle of April, 1922. During the time that Johnson was working on the car he learned from defendant that the latter was willing to sell the car when the repairs were completed, and that he would sell it for $ 750. Thereafter Johnson, apparently on his own initiative and without suggestion of any kind on the part of defendant, showed the car to a number of persons with the view of interesting them in its purchase. But the car was never taken out for a demonstration until May 7, 1922. On that day, Johnson, while driving the car to the place where he was to demonstrate it to a prospective buyer, collided with plaintiff's car, causing the injuries complained of. Now a finding that Johnson on that occasion took the car out for demonstration as the agent or servant of defendant must rest solely on the testimony of Johnson, who was called as a witness by plaintiff, for plaintiff offered no other evidence on that issue, and the defendant's evidence gives him no aid. A part of Johnson's testimony has been summarized; the remainder, so far as relevant to the question under consideration, is as follows:

Direct Examination.

"Q. How did you happen to meet him [defendant] on that day [May 7, 1922]? A. Well, I met him at his office, and talked about selling the car. He had a car he wanted to sell, a used car, a Mercer car. . . . And he told me if I had a buyer for it, to go out and demonstrate it. . . . I asked him if I could take the car out to demonstrate it, about 3:30 or four o'clock, May seventh. . . .

"Q. Go ahead, now, and describe about this day: You told him you had a purchaser for the car, by the name of Mr. Jenkins? A. Well, I told him I had a purchaser for the car, by the name of Mr. Jenkins, and he told me to take the car. When I first seen him, it was in the office of the Federal Sash & Door Company. Well, the car wasn't in the garage of the Federal Sash & Door Company, it was up in Mr. Ross's garage -- that is a partner of Mr. Rhoads, in the Federal Sash & Door Company, and I went up to Mr. Ross's house, and got the car out of the garage, and took this said car, the Mercer car, down to the Federal Sash & Door Company, in front of the Federal Sash & Door Company, and went in and asked Mr. Rhoads for some money for some gasoline, and which he gave me. . . .

"Q. Did he know to whom you were going to try to sell this car? A. No, sir.

" Q. Had you mentioned Mr. Jenkins's name to him? A. No, sir. . . .

"Q. Now, just what was said when he gave you the dollar to buy the gasoline with? A. Well, he told me -- I told him I had a fellow I wanted to demonstrate the car to, and he gave me a dollar to buy some gasoline with, and he never told me any specified time when to demonstrate this car, because it was about four o'clock or a little after four when he gave me the money for the gasoline, and following that, why, Mr. Herbert Jenkins, the fellow I was going to demonstrate it to, he was going to come by my house that night.

"Q. Where did you live? A. 3236 Morrell Avenue.

"Q. And that was the place he [Jenkins] was to come by? A. Yes, sir, and which he come by, and he stopped and told me he hadn't time to look at the car, but to bring the car out and show him the car, and --

"Q. (Interrupting): Now, where did he tell you to bring the car, to show it to him? A. I was going out to the Ross Farm -- Colonel Ross Farm, a farm owned by Mr. Colonel Ross, and it is just about a half a mile south of where the accident occurred.

"Q. Well, did Mr. Jenkins say anything about seeing you out there in the country, in the morning? A. Yes, sir. I told him we had arranged before that time, I was going out there that night anyway, and so I told him I would bring the car out and show him the car.

"Q. And he wanted a demonstration out there -- he wanted you to bring it out there to where he lived in the country, to demonstrate it out there to him? A. Yes, sir. Well, he just told me to come out there. I was coming out there, that way, anyway, and I was going out that night, and he told me to bring it out and he would look over it, and if it was worth the money, he would buy the car."

Cross-Examination.

"Q. Now, then, after you finished that work on the car, and between that time and the time, on May seventh, did you have the car out? A. Well, I had it out one or two times, to test -- that is, to adjust the carburetor, and the bearings on the car.

"Q. That was to make the car work, in accordance with the arrangement you had made with Mr. Rhoads, when you started to work on it, is that it? A. Yes, sir.

"Q. You were simply making good under that one hundred dollar contract? A. Yes, sir, I was.

"Q. ...