Humphrey v. Hogan

• Citation: 104 S.W.2d 767
• Decision Date: 05 April 1937
• Docket Number: No. 18852.,18852.
• Parties: HUMPHREY v. HOGAN et al.
• Court: Court of Appeal of Missouri (US)

104 S.W.2d 767

HUMPHREY v. HOGAN et al.

No. 18852.

Kansas City Court of Appeals. Missouri.

April 5, 1937.

Rehearing Denied May 3, 1937.

Appeal from Circuit Court, Macon County; Harry J. Libby, Judge.

"Not to be published in State Reports."

Action by Frank Humphrey against Miller Hogan and Jewell Tea Company. Judgment for plaintiff, and defendant Jewell Tea Company appeals.

Reversed.

Hunter & Chamier, of Moberly, for appellant.

Lacy & Edwards and D. L. Dempsey, all of Macon, for respondent.

BLAND, Judge.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000. Defendant has appealed.

The facts show that plaintiff was injured on the outskirts of Macon while driving north on Highway No. 63, when his automobile came into collision with a truck of the defendant, Jewell Tea Company, being driven by the defendant, Miller Hogan. There is no controversy as to the negligence of Hogan. The sole issue in this court is whether he, an employee of his codefendant, was acting within the scope of his authority as such employee at the time of the collision.

The facts in this connection show that defendant, Jewell Tea Company, is a corporation engaged in the selling of grocery products at retail; that it has a branch office in the city of St. Louis with assistant managers each having charge of various routes in this state. Each route is also in charge of a route manager working under an assistant manager. Hogan was a route manager in charge of Route 14 with headquarters in Moberly. Hogan's duties were to go from house to house by means of a truck and take orders for the merchandise and deliver and collect for merchandise for his employer. The truck which he used in his work was furnished by the employer. The truck was kept by Hogan in his garage. The garage rent, expenses for gasoline, oil and upkeep for the truck was paid by the employer.

Hogan's route consisted of certain and definite territory, including Moberly, Higby, Salisbury, Fayette, Glasgow, Armstrong and Roanoke. None of his route lay north of Moberly, which is located in Randolph County. The city of Macon is situated in Macon County which joins Randolph County to the north. Hogan had no authority to conduct his employer's business in Macon County, that territory being covered by another route manager. Hogan's route was laid out for him by the defendant. He was instructed to take no other one and that he was to use the truck on none other than the business of the defendant and not for his own pleasure; that he should return to Moberly each night, put the truck in the garage and leave it there until he left on one of his routes the next day; that the truck should not be taken out of his assigned territory without the written permission of the branch operating division, and it should not be used on Sunday for any purpose.

Hogan had twelve sub-routes each covered by a book containing the names of the customers on the sub-route. It appears that Hogan had lost one of these books covering sub-route known as I-A. Information came to the employer that the book had been located in Glasgow. Its assistant manager notified Hogan of this fact and directed him to go to Glasgow and get the book which was to be returned to Moberly. In order to cover sub-route I-A Hogan went west from Moberly on Highway 24 through Clifton Hill and Salisbury and thence to Glasgow which is on Highway No. 5. Highway No. 5 runs south from Highway No. 24 starting 3 miles west of Salisbury. It is 13 miles from highway No. 24 to Glasgow.

These sub-route books of the defendant were valuable ones and were necessary for the route managers to have in order to cover their routes. Hogan's assistant manager was desirous of the one in question being recovered so he told Hogan about noon on Saturday to borrow an automobile and go after the book, but if he could not obtain a car then to take the truck and say nothing about it as he did not want "the superior officers to know."

Hogan was unable to obtain a car and started in the truck with his wife to Glasgow, taking Highways No. 24 and 5. He left Moberly about dark, Saturday evening, and upon arriving in Glasgow he obtained the book. He and his wife ate supper and started on the return trip to Moberly over the same highways they had taken to Glasgow. Hogan's wife decided that she would like to visit her father's family who lived on a farm about 12 miles north of Clifton Hill, a town situated on Highway No. 24 about 10 miles west of Moberly. There is a farm to market road running north from Clifton Hill 23 miles to Callao in Macon County. Holeman, Hogan's father-in-law, lived on a farm about a mile and three-quarters west of this road and about half way between Clifton Hill and Callao. When Hogan and his wife reached Clifton Hill, instead of going on west to Moberly, they turned north and went to the Holeman farm where Hogan left his wife. He then departed, going north to Callao, thence east 8 miles to the city of Macon, where he spent the night (Saturday night) and Sunday with his parents.

He departed with the truck about 6 p. m. of Sunday for Moberly and when he arrived at the edge of Macon, as before stated, the collision in question occurred.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that at the time of the collision, Hogan had departed from his employment and was using the truck for his own purpose and his tortious act in colliding with the plaintiff's car was not committed in the execution of his master's business and within the scope of his employment.

Hogan's deviation from his route back to Moberly must be admitted and plaintiff does not contend that such deviation was not so marked and unusual as not to remove him from the scope of his employment had the collision occurred after the deviation and prior to the time Hogan started from Macon to Moberly. That he was not within the scope of his employment during that time, as a matter of law, cannot be questioned. Ursch v. Heier, 210 Mo. App. 129, 241 S.W....