Kickham v. Carter, 47677
| Decision Date | 11 April 1960 |
| Docket Number | No. 47677,No. 1,47677,1 |
| Citation | 335 S.W.2d 83 |
| Parties | Michael D. KICKHAM, Plaintiff-Appellant, v. Kenneth CARTER, Defendant-Respondent, Royal Papers, Inc., a Corporation, Defendant-Respondent, Royal Crown Bottling Corporation of St. Louis, a Corporation, Defendant- Respondent |
| Court | Missouri Supreme Court |
James W. Jeans, Gray & Jeans, St. Louis, for plaintiff-appellant.
William H. Tombrink, Strubinger, Tudor, Tombrink & Wion, St. Louis for defendant Kenneth Carter.
Heneghan, Roberts & Cole, George E. Heneghan, St. Louis, for defendant-respondent, Royal Papers, Inc.
Hocker, Goodwin & MacGreevy, John M. Goodwin, Donald J. Stohr, St. Louis, for defendant-respondent, Royal Crown Bottling Corp. of St. Louis.
HOLMAN, Commissioner.
In this action plaintiff sought to recover damages in the sum of $60,000 for personal injuries alleged to have been sustained by him in an intersectional collision between his car and one driven by defendant Kenneth Carter. Carter was a salesman for Royal Papers, Inc. (hereinafter referred to as 'Royal Papers') which corporation was also made a defendant. The third defendant was Royal Crown Bottling Corporation of St. Louis (hereinafter referred to as 'Royal Crown'). At the conclusion of plaintiff's evidence the court sustained the motion for a directed verdict filed by defendant Royal Papers. The jury returned a verdict for plaintiff against defendant Carter in the sum of $12,500 and found in favor of defendants Royal Crown and (as directed) Royal Papers. Plaintiff has appealed and here contends that the trial court erred (1) in directing a verdict in favor of Royal Papers, (2) in giving Instruction No. 5 at the request of defendant Royal Crown, and (3) in the admission and exclusion of evidence relating to plaintiff's damages and in giving Instruction No. 12 upon that issue. He seeks a new trial as to defendants Royal Papers and Royal Crown and a new trial on the issue of damages as to defendant Carter.
This is the second appeal in this case. See Kickham v. Carter, Mo.Sup., 314 S.W.2d 902. In the first appeal there were contentions that plaintiff failed to make a submissible case and also was guilty of contributory negligence as a matter of law, and hence it was necessary, in that opinion, for us to set out in detail the facts relating to the manner in which the collision occurred. Those issues are not presented upon this appeal and hence a brief statement of the facts will suffice. We refer readers to our first opinion for a complete factual statement.
Plaintiff's case was submitted against Carter upon his hypothesized humanitarian negligence in failing to stop his automobile and thus to have avoided the collision. Carter was a salesman for Royal Papers and the alleged liability of Carter's said employer was predicated upon the doctrine of respondeat superior. In our first opinion we expressed the view that the evidence at the first trial had not been sufficient to support the submission of the issue as to the liability of Royal Papers, but since we were of the opinion that the evidence had not been fully developed on that issue we held that the case should be retried as to said defendant in order to afford plaintiff the opportunity of presenting additional evidence in an effort to prove that Royal Papers was responsible for Carter's actions on the occasion in question. As indicated, on the second trial, the trial court was of the opinion that the evidence was not sufficient to support a submission of that issue and accordingly directed a verdict for said defendant. The alleged liability of defendant Royal Crown was based upon the violation of certain ordinances of the City of St. Louis in that the route salesman had parked one of said defendant's trucks either in the intersection of 'on a cross walk' at the southeast corner of the intersection. The causal connection of said negligence is evidently based upon the contention that, as so parked, the truck obstructed the view of plaintiff as his vehicle approached the intersection.
The collision occurred on March 16, 1956, at about 10:30 a. m. at the intersection of Ninth, a north-south street, and Destrehan, an east-west street, in St. Louis, Missouri. Plaintiff was driving northwardly on Ninth at a speed of 25 m. p. h. As he neared the intersection his view of westbound traffic was obscured by the parked Royal Crown truck. Carter, driving west on Destrehan, stopped at a stop sign before starting to cross Ninth. Plaintiff first saw Carter's car when it was seven or eight feet into Ninth 'edging out' into the intersection at a speed of three to five m. p. h. Plaintiff, then 30 feet away, did not apply his brakes but sought to avoid a collision by honking his horn and swerving to the left. He swerved to the left of the center line and the front of his car 'got past' but his right rear fender was caught by the right front bumper guard of the Carter car and plaintiff was 'wrenched around in the car.' Carter testified that he had stopped his car before the collision. He also stated that plaintiff's car was moving at a speed of 40 m. p. h.
Plaintiff did not think he had been injured in the collision. Each driver gave the other his name and address and plaintiff went on to work. Later in the day his back 'felt a little funny' and the next day, Saturday, he developed 'tremendous pain' in his low back radiating down his left leg. His condition did not respond to treatment and he underwent an operation on July 21, 1956, for the removal of a ruptured disc at the L-3, L-4 level. He lost 28 weeks' work during the year following the collision. His work as a stereotyper ordinarily required him to left lead plates weighing about 45 pounds. Since his operation he has been unable to lift those plates. He has been able to continue working because fellow employees have been doing the lifting for him. According to favorable medical testimony he has sustained permanent partial disability as a result of injuries sustained in the collision.
We will first consider the contention of plaintiff that the court erred in directing a verdict for defendant Royal Papers. In our determination of the question concerning the sufficiency of the evidence to support the submission of the issue as to said defendant's responsibility under the doctrine of respondeat superior we will consider the evidence in the light most favorable to plaintiff. The evidence on that issue was given by defendant Carter and Dennis Aubuchon, a vice-president of Royal Papers, both of whom were called by plaintiff. There is no conflict in that evidence and our task, as stated, is to determine the legal sufficiency thereof.
Kenneth Carter, on the dates mentioned, was living with his stepfather, Joseph Aubuchon, president of Royal Papers. In May 1955, when about 23 years of age, he went to work for Royal Papers in the warehouse. Six months later he became an 'outside salesman' for the company. The company sells all types of paper products such as cups, napkins, towels, etc. No territory is assigned to a salesman. The only restriction is that if a salesman is calling on an account regularly, another salesman is not supposed to call on that account without his consent. Carter's stepfather gave him some instructions and he also learned the work by going with other salesmen to make calls. He owned the car he was driving at the time of the collision, although salesmen for Royal Papers were not required to have a car and the company does not pay any of the expense of operating the same. They are at liberty to walk or use public transportation in calling upon their customers. Mr. Auduchon testified that salesmen were asked to telephone the office of the company about four times a day in order to receive messages and other information helpful in their work. He stated that if a customer calls the office and wants to talk with a salesman the switchboard operator would give the message to the first salesman who called thereafter and then it was up to the particular salesman as to whether he would accept or reject the call. He also stated that sales meetings were held on an average of twice a month, generally for the purpose of introducing new products, but that salesmen were not required to attend these meetings. He said that the only expense allowed the salesmen was that if a salesman took a customer out for an evening's entertainment the company would pay one half of that expense.
Carter testified that he was paid strictly on a commission basis and that the company did not deduct any withholding tax or social security from his earnings. He stated that he was not required to work any particular hours or to call on any particular customers; that he usually went to the office once each day to get mail and receive any messages that might be left for him; that he had a desk in the office and stenographic services were available; that he ordinarily went to the office late in the afternoon when it was too late to make calls; however, on the morning of the collision he had made some calls at Baden and was intending to work around Kirkwood in the afternoon and, since that was near his home, he would not return to the office on that Friday afternoon. Consequently he decided to call at the office before noon and intended to receive his mail and messages and then go to lunch with someone in the office before proceeding to Kirkwood. He was on his way from Baden to the office at the time of the collision.
In regard to the operation of his car Carter testified as follows:
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