Igo v. Alford

• Citation: 69 S.W.2d 317,228 Mo.App. 457
• Parties: BERTHA G. IGO, RESPONDENT, v. WM. T. ALFORD, ADMR., ETC., APPELLANT
• Decision Date: 29 January 1934
• Court: Court of Appeals of Kansas

69 S.W.2d 317

228 Mo.App. 457

BERTHA G. IGO, RESPONDENT, v. WM. T. ALFORD, ADMR., ETC., APPELLANT

Court of Appeals of Missouri, Kansas City

January 29, 1934

Appeal from Circuit Court of Jackson County.--Hon. Michael W O'Hern, Special Judge.

REVERSED.

Judgment reversed.

John C Nipp, Chas. N. Sadler and E. E. Thompson for respondent.

Carl J Marold and Shughart & Johnson for appellant.

OPINION

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment against the defendant in the sum of $ 1,000, and he has appealed.

Plaintiff was injured in a collision between the automobile in which she was riding, which at the time was being driven by her husband, and a car owned by one C. P. Jeserich. The collision occurred on September 25, 1929, a few miles north of North Kansas City, on Highway No. 71. After the suit was brought and, prior to its trial, defendant died and the cause was revived in the name of William T. Alford, administrator of his estate, as party defendant.

It is insisted by the defendant that his peremptory instruction should have been given. It is admitted that there was sufficient testimony for the consideration of the jury as to the negligence of the driver of deceased's car, but it is denied by the defendant that the driver thereof was acting as the agent of deceased.

The facts in this connection show that one Shepherd operated, in North Kansas City, what is known as the Shepherd Garage, consisting of an automobile sales agency and a public garage; that he had in his employ one Hartzell, who was foreman of the garage and service manager; that deceased was employed by the Yates Laundry Machinery Company which had entered into an agreement with Hartzell, as the agent of Shepherd, for the repair, in Shepherd's garage, of its automobiles and trucks being used in its business and of its employees; that after the automobile of an employee had been repaired the garage would send the bill therefor directly to the Yates Laundry Machinery Company; that this company would pay it and in turn charge the bill to the employee on whose car the work had been done.

The facts further show that deceased owned an automobile, which he used in the business of his employer; that the clutch of deceased's car had been giving him trouble by slipping; that in an effort to correct this defect he had taken it to two or three garages but they had failed to fix it properly; that it was deceased's intention to take a long trip, on business for his employer, and he desired to take his car to some competent repair shop for the purpose of having the trouble finally corrected; that he spoke to Mr. Yates, in charge of the Yates Laundry Machinery Company, with reference to the matter and Mr. Yates sent him to Shepherd's garage for the work to be done; that on the morning of the collision deceased took his car to that garage and related to Hartzell the trouble that he had been having with the clutch slipping; that he told the latter to fix it and to make any other repairs on the car that were necessary and when he repaired the clutch "not to drive it around here so there won't anything happen" but to take it out and "drive it over the hills" and "give it a good test." "I gave him orders."

The facts further show that Hartzell and one Eley, another mechanic in the garage, worked about an hour upon the clutch; that then, in response to the directions of deceased, Hartzell and Eley, the former driving, took the car out to test it on a hill where the collision occurred; that after leaving the car at the garage deceased went to Excelsion Springs on business for his employer; that when he came back in the afternoon of the same day he went to the garage to see about the car and found it wrecked and learned for the first time about the collision.

It is claimed by the defendant that the relationship between deceased and the proprietor of the garage was that of employer and independent contractor and, for that reason, deceased was not liable for the negligence of the driver of his car. It is claimed by plaintiff that the relationship was not that of independent contractor for the reason that deceased directed Hartzell to take the car and drive it on the hills after he had repaired it. There is no contention that had Hartzell repaired the car and tested it in the usual way without any directions as to how or in what manner it should be tested, deceased or his estate would not be liable.

It was stated in Mattocks v. Emerson Drug Co., 33 S.W.2d 142, 143:

"Where a mechanic or garageman has possession of the car for the purpose of repairing it, free from any direction or control on the part of the owner as to the means by which the final result is to be accomplished, such mechanic or garageman is an independent contractor, and the owner will not be held liable for injuries caused by the former's negligent operation of the car, as while testing it upon the highway, or while taking it to or from the garage."

A great number of cases are cited in support of this statement of the law. In addition, the following might also be cited in support of the statement therein made: 2 Blachfield Cyc. of Auto. Law, p. 1362; Berry on Automobiles (4 Ed.), p. 1248; Drollinger v. McCurdy, 238 N.Y.S. 219; Yearwood v. Peabody, 164 S.E. 901 (Ga.); Winerich Motor Sales Co. v. Ochoa (Tex.), 58 S.W.2d 193. In all of the cases cited there was no express direction from the owner of the car to the garageman or the mechanic as to how the car should be tested, the automobile being left for the purpose of repair and the garageman or the mechanic, in the exercise of his own judgment, had taken it out for the purpose of testing it or locating the trouble when the accident occurred.

However, there is at least one case involving an express direction on the part of the owner of the car as to how it should be tested after the repairs were made. In the case of Ousley v. Ledbetter (Ga.), 161 S.E. 634, the court said:

"Where the owner of an automobile truck, through his agent and driver, delivers it to a mechanic for the purpose of repair, and surrenders the entire control of it to him, the mechanic is not the servant of the owner but an independent contractor. Where the mechanic, under such circumstances, negligently injures another while testing the truck, the owner is not liable in an action for damages for the injury; and the fact that the test was being made with the consent and by the direction of the agent of the owner does not change the rule, it not appearing that the agent was riding in the truck or exercising any control over the mechanic's operation of it during the test." (Italics ours.)

In Thorn v. Clark, 177 N.Y.S. 201, the owner of an automobile left it with a repairman for repairs, the owner directing him "to take the car out," but whether for the purpose of testing it did not clearly appear. The court in that case said, l. c. 202:

"The fact that the owner, Clark, directed Laravie to 'take the car out' does not make Clark liable. Either Laravie took the automobile out to test it, or he was using it for his own purpose. In either event no liability rests on the owner."

"A servant is one who is employed to...