Klotsch v. P. F. Collier & Son Corp.
| Decision Date | 10 March 1942 |
| Docket Number | 37124 |
| Parties | Edward F. Klotsch v. P. F. Collier & Son Corporation, a Corporation, and Elmer U. McAtee, Appellants |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 349 Mo. 40 at 52.
Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.
Reversed as to appellant P. F. Collier & Son Corporation and affirmed as to appellant McAtee.
Moser Marsalek & Dearing for appellants.
(1) The evidence adduced by plaintiff, which was the only evidence on the subject, conclusively shows that McAtee was not acting within the scope of his employment when plaintiff was injured on November 5, 1938. McMain v. Connors & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43; Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718. The fact that, at the time plaintiff was injured, McAtee had with him contracts of defendant P. F. Collier & Son Corporation, in connection with some of which he intended to work in Wentzville, St. Peters and St. Charles on November 7th, did not change the character of the mission from personal to one within the scope of his employment. Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240; Humphrey v. Hogan, 104 S.W.2d 767. The only evidence adduced in the case relating to McAtee's mission at the time plaintiff was injured was the testimony of McAtee, whom plaintiff called as his witness, and plaintiff is bound by such testimony. Rodan v. St. Louis Transit Co., 207 Mo. 392, 105 S.W. 1061; Cook v. St. Joseph Ry., L., H. & P. Co., 232 Mo.App. 313, 106 S.W.2d 38. (2) The verdict is excessive. Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Johnston v. St. Louis, 138 S.W.2d 666.
N. Murry Edwards and Fred R. Rodgers for respondent.
(1) The court properly overruled the demurrers of appellant P. F. Collier & Son Corporation to the evidence. (a) Appellant McAtee was within the scope of his employment as a servant and agent of appellant P. F. Collier & Son Corporation at the time he struck and injured the respondent because the accident happened while McAtee was driving an automobile on which Collier Company paid the expenses in his territory, carrying all of Collier's records on which McAtee worked as their agent to a place where McAtee intended to work for the Collier Company. McAtee had not departed from the most direct route to his place of work at the time plaintiff was injured. McAtee's testimony that he intended to drive beyond his place of work when he arrived there did not change the character of his business mission for Collier to one of a purely personal character. Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Gordner v. St. Louis Screw Co., 210 S.W. 930; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S.W.2d 27; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264; La Fleur v. Poesch, 252 N.W. 902; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; McCoy v. Simpson, 139 S.W.2d 950; Burgess v. Garvin, 272 S.W. 108. (b) Although respondent placed McAtee on the witness stand, he is not bound by the adverse conclusions of said hostile adversary witness where he stated that he quit work for defendant Collier Company just before plaintiff was injured and was not working for that company at the time. Monsour v. Excelsior Tobacco Co., 144 S.W.2d 62; Smith v. K. C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Clancy v. St. L. Transit Co., 192 Mo. 615, 91 S.W. 509; Carter v. Wells, 40 S.W.2d 725; Luzzadder v. McCall, 198 S.W. 1144; Detjen v. Moerschel, 138 S.W. 696. (c) Appellant P. F. Collier & Son Corporation offered a general demurrer to the evidence and did not offer separate withdrawal instructions as to the nine assignments of negligence in plaintiff's petition. Appellant Collier Company did thereafter offer instruction 7, which said instruction adopted and resubmitted to the jury respondent's instruction 1, upon which the case was submitted to the jury as to the liability of both defendants Collier Company and McAtee. This being true, the Collier Corporation is now estopped to claim that there was not sufficient evidence to submit the cause to the jury as to it. Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690, 46 S.W.2d 174; Torrance v. Pryor, 210 S.W. 430; Armstrong v. Scullin Steel Co., 268 S.W. 386; Cantley v. Plattner, 67 S.W.2d 125; McDonald v. F. W. Woolworth, 135 S.W.2d 359; Curtis v. Kansas City Pub. Serv. Co., 74 S.W.2d 255. (2) The verdict is not excessive. Thompson v. Quincy, O. & K. C. R. Co., 18 S.W.2d 401; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604; Byars v. St. Louis Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Brucker v. Gambaro, 9 S.W.2d 918; Holman v. Terminal R., 125 S.W.2d 527; Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.2d 50; Stofer v. Kansas City Pub. Serv. Co., 41 S.W.2d 614; Powers v. Kansas City, 18 S.W.2d 545; Baker v. Chicago, B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d 535; Powelson v. Chicago, M. & St. P. Ry. Co., 263 S.W. 149; Roe v. Met. Street Ry. Co., 131 Mo.App. 128, 110 S.W. 611; Stein v. Rainey, 315 Mo. 535, 286 S.W. 53; Blair v. Union Electric L. & P. Co., 213 S.W. 976; Slater v. Atchison, T. & S. F. Ry. Co., 24 S.W.2d 660; Tash v. St. Louis-San Francisco Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Stewart v. Railroad, 149 Mo.App. 456, 130 S.W. 441; Link v. Atlantic Coast Line R. Co., 233 S.W. 834; Brewer v. Mo. Pac. R. Co., 259 S.W. 825.
Respondent, Klotsch, recovered a judgment against appellants in the circuit court of the City of St. Louis for $ 9,601.94 damages for personal injuries sustained when he was struck by an automobile driven by appellant McAtee, an employee of appellant P. F. Collier & Son Corporation (hereinafter called "Colliers"), on Saturday evening, November 5, 1938, about 7 P. M., while walking across Olive Street Road in St. Louis County. McAtee was employed by Colliers as a collector of subscriptions to their publications, and to verify new subscriptions. The place where the collision occurred was in his territory. Respondent called him as a witness and he testified he had finished his week's work on the afternoon of that day, and was on a personal mission of his own at the time of the casualty. The only two assignments of error on this appeal are: (1) that there was no substantial evidence to support a verdict against Colliers because it conclusively appeared McAtee was not acting in the scope of his employment when the collision occurred; (2) the verdict was excessive.
Respondent's case was submitted to the jury solely on the humanitarian doctrine. But since neither appellant contends the evidence failed to make a prima facie case of liability against appellant McAtee, and the only question is whether appellant Colliers was liable for McAtee's negligence under the doctrine of respondeat superior, we need not detail the circumstances of the casualty. It is necessary, however, to state fully the facts bearing on the terms of McAtee's employment and the nature of his mission when the casualty happened.
He had worked as a collector for Colliers for about three years. His compensation under the contract in effect at the time was derived wholly from commissions on collections and stipulated sums for subscriptions verified. He had a territory in the western portion of St. Louis County which included the point where the collision occurred and extended over into St. Charles County as far as Wentzville, St. Charles and intermediate villages. He had a traveling expense allowance of 3c per mile between certain towns, in which he worked, and 75c ferry fare across the Missouri River at St. Charles. When he was employed he was asked whether he had an automobile and was told an automobile would be helpful in his work. The advertisement answered by him when he obtained the job so stated. He was further required to furnish Colliers with a full description of his automobile. But he was not required to use one in the business and could have traveled by bus or other conveyances, and still drawn the same travel allowance.
On the first of each month Colliers would give him from 700 to 900 subscription contracts on which he was expected to make collections or verifications during that month. But he arranged his own routes and fixed his own working hours. He reported to the central office by telephone every morning and personally called at the office each Saturday morning at 8 o'clock for instructions. He often made collections at night. He would send in a report almost every day and would mail remittances by money order. His list included five subscribers on the Olive Street Road and he had had 9 or 10 accounts in Wentzville for three or four months. It had been his custom to make collections on these about once a month, usually between the 5th and 7th of the month.
McAtee testifying as a witness for respondent, said he worked in St. Louis County the day of the casualty and completed his collecting about 3 o'clock in the afternoon. Then he went home and made out his report for the day and mailed it. He and his wife had arranged to spend the week end with her parents at the latter's home near Wright City in Warren County about 13 miles west of Wentzville, both cities being on U.S. Highway No. 40. About 6 o'clock that evening they started to Wright City in his automobile, going over the Olive Street Road, which was the most practical route to both Wentzville and Wright City because the alternate route through St. Charles entailed payment of the ferry fare. But McAtee swore he had no intention of transacting any business for Colliers at Wentzville or elsewhere on that going trip. However he did intend, after having...
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