Johnson v. Bi-State Development Agency, BI-STATE

• Decision Date: 31 July 1990
• Docket Number: No. 72430,BI-STATE,72430
• Citation: 793 S.W.2d 864
• Parties: Verma JOHNSON, Plaintiff-Appellant, v.DEVELOPMENT AGENCY, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 864

793 S.W.2d 864

16 A.L.R.5th 873

Verma JOHNSON, Plaintiff-Appellant, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Respondent.

No. 72430.

Supreme Court of Missouri En Banc.

July 31, 1990.

Marc Wallis, St. Louis, plaintiff-appellant.

Joseph H. Guffey, St. Louis, defendant-respondent.

COVINGTON, Judge.

This is an appeal by Verma Johnson from a judgment sustaining Bi-State Development Agency's ("Bi-State") motion for directed verdict at the close of Ms. Johnson's evidence. The Missouri Court of Appeals, Eastern District, affirmed. This Court granted transfer. Rule 83.03. The judgment is reversed and the cause remanded.

On October 16, 1981, Verma Johnson left her job at Shop Towel Service Company in St. Louis, Missouri, and boarded the Bi-State Gravois bus at Grand Avenue. She exited the bus at Sixth and Lucas Streets where she intended to take another bus to her home in East St. Louis, Illinois. She walked around in front of the bus toward the other side of the street. She checked the traffic and then looked up to the driver of the bus. The bus driver looked in his rear view mirror then motioned with his hand to cross the street. Ms. Johnson checked the traffic once more, but, as she stepped from in front of the bus, she was struck by an automobile operated by Linda Martin. The bus driver did not warn that an automobile was approaching.

Ms. Johnson sued both Bi-State and Linda Martin. The driver was deceased at the time Ms. Johnson initiated litigation. Ms. Johnson settled with Ms. Martin who was then dismissed as a party. At the close of plaintiff's evidence, the trial court granted Bi-State's motion for directed verdict on grounds of sovereign immunity and Ms. Johnson's failure to present evidence that the action taken by the bus driver was within his scope of employment.

Ms. Johnson first claims the trial court erred in directing a verdict on the ground of sovereign immunity. She is correct. A brief recitation of the history of the evolution of sovereign immunity and its exceptions is appropriate in the context of the resolution of the question presented. At common law, a municipal corporation was immune from liability for performance of governmental functions but liable for tortious acts committed in performance of proprietary functions. See Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430, 432 (1948); State ex rel. Askew v. Kopp, 330 S.W.2d 882, 889-90 (Mo.1960); State ex rel. Allen v. Barker, 581 S.W.2d 818, 825 (Mo. banc 1979). A public entity is deprived of immunity when performing proprietary functions. Beiser v. Parkway School District, 589 S.W.2d 277, 280 (Mo. banc 1979), citing, St. Joseph Light & Power Co. v. Kaw Valley Tunneling Inc., et al., 589 S.W.2d 260 (Mo. banc 1979). The nature of the activity performed determines the capacity in which the public entity acts. St. Joseph Light & Power Co., 589 S.W.2d at 267. A governmental duty is one which is performed for the common good of all. A duty will be deemed proprietary if it is performed for the special benefit or profit of the public entity acting as a corporate entity. Dallas v. City of St. Louis, 338 S.W.2d 39, 44 (Mo.1960).

In Jones v. State Highway Comm'n, 557 S.W.2d 225 (Mo. banc 1977), this Court abolished sovereign immunity. The legislature responded to Jones in 1978 by enacting § 537.600, RSMo Supp.1989 ¹, which reinstates sovereign or governmental tort immunity as it existed in Missouri prior to September 12, 1977, with two express exceptions, §§ 537.600.1(1) and (2). The governmental-proprietary distinction, thereby, was also resuscitated. State ex rel. Allen v. Barker, 581 S.W.2d at 825. Later, in State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 675 (Mo. banc 1988), this Court held that Bi-State, as a public entity, was entitled to sovereign or governmental immunity as it existed prior to September 12, 1977, and was not a municipality subject to the governmental-proprietary test.

In apparent response to Trimble, the legislature enacted §§ 537.600.3, et seq., providing that sovereign immunity is waived for the proprietary functions of multi-state compact agencies, operating pursuant to the provisions of §§ 70.370 to 70.440, RSMo, including functions such as the operation of motor vehicles involved in the operation of a public transit or public transportation system. § 537.600.4. Bi-State exists and operates its public transportation system solely by authority of §§ 70.370, et seq., RSMo 1986. Ms. Johnson's claim is not defeated by sovereign immunity.

Having determined that sovereign immunity is not a bar to Ms. Johnson's claim, it is then necessary to address the question of whether Ms. Johnson adduced evidence sufficient to show that the bus driver acted within the scope of his employment. Bi-State contends the plaintiff failed to adduce evidence that the act of waving by the bus driver was within his authority and scope of employment. Bi-State can be held liable for the negligence of the driver only upon some application of the principle of respondeat superior.

Whether the act of waving was within the driver's scope of employment is a question of fact for the jury. Although instances when such an activity comes within the scope of employment of the driver of a motor vehicle may be few, it cannot be said as a matter of law that any act of waving by the driver of a motor vehicle, regardless of the intended purpose, is outside the scope of the driver's employment.

In cases involving motor vehicles, Missouri case law affords a rebuttable presumption that the driver of another's vehicle is acting within the course of employment. Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 259-60 (Mo.1973). The presumption arises by showing that the defendant owned or controlled the motor vehicle and that the driver of the vehicle was in the general employ of the defendant.

The issue, then, is whether the evidence was favorable to the plaintiff and whether reasonable inferences from the evidence were sufficient so that reasonable minds could differ as to whether the Bi-State driver was an employee of Bi-State acting within the scope of his employment.

"Direct evidence of the relationship of employer-employee is not required to establish the relationship, but the fact of such a relationship may be established by circumstantial as well as direct evidence." Smoot v. Marks, 564 S.W.2d 231, 236 (Mo.App.1978). In Brison v. O'Brien, 645 S.W.2d 142 (Mo.App.1982), for example, the court found very minimal...