Klotsch v. P. F. Collier & Son Corp.

• Decision Date: 10 March 1942
• Parties: Edward F. Klotsch v. P. F. Collier & Son Corporation, a Corporation, and Elmer U. McAtee, Appellants
• Court: Missouri Supreme Court

159 S.W.2d 589

349 Mo. 40

Edward F. Klotsch v. P. F. Collier & Son Corporation, a Corporation, and Elmer U. McAtee, Appellants

Supreme Court of Missouri

March 10, 1942

Reported at 349 Mo. 40 at 52.

Original Opinion of March 10, 1942, Reported at 349 Mo. 40.

OPINION

PER CURIAM.

Respondent has filed a vigorous motion for rehearing. One assignment asserts he made a prima facie case but that our opinion permits it to be swept aside by a single statement of his unfriendly witness, the appellant McAtee. McAtee's statement was that in making the Saturday night trip to Wright City through Wentzville his only purpose was to spend the week end with his wife's parents, and that he had no intention of transacting any business for his employer along the road, or at Wentzville until the following Monday morning 36 hours later. For the reasons stated in the opinion we think respondent was bound by this testimony because he called and used McAtee as his own witness. We concede that if there had been any substantial evidence to the contrary respondent could have taken advantage of it. But there was none.

The two exhibits introduced by respondent purporting to show McAtee had taken two 60c subscriptions for Colliers' publications at Wentzville on Sunday, October 9, did not substantially tend to prove he regularly transacted business on Sunday or that he intended to do so on the trip on November 5. For it was undisputed that he arranged his own routes and working hours. Also, it was conceded that McAtee had had 9 or 10 accounts at Wentzville for several preceding months; but there was no evidence that he had ever transacted any business there on Sunday -- unless on the one occasion mentioned. McAtee himself disputed that, and his daily reports showed the two subscriptions were taken on October 7 instead of October 9, in line with his custom to work at Wentzville between the 5th and 7th of each month. The 5th in this instance (November 5, 1938) fell on Saturday, and according to all the evidence he was occupied in St. Louis county until late that day. Since all this appeared from respondent's own showing, his contention on this point must be disallowed. A verdict cannot be founded on pure speculation.

The other assignment is that under the law McAtee was on a mission for his master, Colliers, enough to make the latter liable for his negligence, even though his version be true that he did not intend to work until Monday morning, 36 hours later. We think a substantial "detour" in time, as well as space, may relieve a master from liability for the negligence of his servant, for the law is well settled that the servant must be acting within the scope of...