Kourik v. English

• Decision Date: 05 January 1937
• Docket Number: 34278,34279
• Citation: 100 S.W.2d 901,340 Mo. 367
• Parties: Arthur Kourik v. Thomas J. English et al., Defendants, Thomas J. English and Thomas J. English Adjusting Company, Appellants. Arthur Kourik v. Thomas J. English et al., Defendants, Fidelity-Phenix Fire Insurance Company of New York, a Corporation, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 901

340 Mo. 367

Arthur Kourik v. Thomas J. English et al., Defendants, Thomas J. English and Thomas J. English Adjusting Company, Appellants. Arthur Kourik v. Thomas J. English et al., Defendants, Fidelity-Phenix Fire Insurance Company of New York, a Corporation, Appellant

Nos. 34278, 34279

Supreme Court of Missouri

January 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Reversed as to Fidelity-Phenix Fire Insurance Company and reversed and remanded as to defendants Thomas J. English and Thomas J. English Adjusting Company.

George A. Hodgman for Fidelity-Phenix Fire Insurance Company.

(1) Defendant English and his adjusting company occupied the legal status of independent contractors in their relations with the defendant fire insurance company, which was not liable for their negligence in the operation of Mrs English's car, under the doctrine of respondeat superior. There was no conflict or issue raised by the evidence on this point and nothing for the jury to determine as far as defendant fire insurance company was concerned. 2 Thompson on Negligence, p. 899; 1 Shearman & Redfield on Negligence, sec. 164; Cooley on Torts (2 Ed.), p. 647; Sargent v. Clements, 88 S.W.2d 174; Maltz v Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Rutherford v. Tobin Quarries, 82 S.W.2d 918; Manus v. K. C. Dist. Corp., 74 S.W.2d 506; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Igo v. Alford, 69 S.W.2d 317; Stein v Battenfield Oil & G. Co., 327 Mo. 804, 39 S.W.2d 345; Coul v. Peck D. G. Co., 326 Mo. 870, 32 S.W.2d 758; Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Baker v. Milling Co., 323 Mo. 1089, 20 S.W.2d 494; Mallory v. Louisiana Pure Ice Co., 320 Mo. 95, 6 S.W.2d 617; Timmerman v. St. L. Arch. Iron Co., 318 Mo. 421, 1 S.W.2d 791; Horn v. Rhoads, 317 Mo. 572, 296 S.W. 389; Keim v. Blackburn, 280 S.W. 1046; Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 611; Mullich v. Brocker, 97 S.W. 549; Gayle v. Mo. Car & Fdry. Co., 177 Mo. 427, 76 S.W. 987; Blumb v. Kansas City, 84 Mo. 112; Long v. Moon, 107 Mo. 334, 17 S.W. 810; Fink v. Mo. Furnace Co., 82 Mo. 276; Snyder v. Railroad Co., 60 Mo. 413; Haggerty v. Railroad Co., 100 Mo.App. 118, 74 S.W. 456; Gross v. Robinson, 203 Mo.App. 118, 218 S.W. 924. (2) The mere fact that in respect to occasional losses where a question of policy violation or interpretation might arise, the independent adjuster, English, might report to the insurance company's home office for instructions does not change the essential character of the relationship, for a principal may always reserve supervision and such control as is necessary for a satisfactory performance of the contract without disturbing or infringing upon the status of independent contract. Clark v. Railroad Co., 36 Mo. 218; Larson v. St. Ry. Co., 110 Mo. 241, 19 S.W. 416; Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077; Gayle v. Mo. Car & Fdry. Co., 117 Mo. 427, 76 S.W. 987; Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; Mallory v. Louisiana Pure Ice Co., 320 Mo. 95, 6 S.W.2d 617; Cases under Point (1). (3) The act of English in taking the police officers to Greenville was not within the scope of his duties as an independent adjuster of insurance losses, as far as appellant insurance company was concerned. It was an accommodation to the St. Louis police department, which desired to obtain custody, under warrant, of the criminals who had been apprehended and held at Greenville for the felonious theft of Branch Rickey's automobile. Curtis v. Ind. Co. of America, 37 S.W.2d 616, 327 Mo. 350; Cousins v. Railroad Co., 66 Mo. 572; Snyder v. Railroad Co., 60 Mo. 413.

Anderson, Gilbert, Wolfort, Allen & Bierman for Thomas J. English and Thomas J. English Adjusting Company.

(1) The court erred in refusing to sustain the demurrers to plaintiff's evidence: (a) Because there was no evidence to prove a causal connection between the alleged accident and the claimed injury, and the verdict was necessarily the result of speculation and conjecture on the part of the jury. Adelsberger v. Sheehy, 59 S.W.2d 644; Plank v. Brown Petroleum Co., 61 S.W.2d 328; Kimme v. Terminal Railroad Assn., 66 S.W.2d 561; Cox v. M., K. & T. Ry. Co., 76 S.W.2d 411; Weiner v. St. L. Pub. Serv. Co., 87 S.W.2d 191. (b) Because there was a fatal variance between the pleadings and the proof. Rositzky v. Rositzky, 46 S.W.2d 591; Dimmick v. Snyder, 34 S.W.2d 1004; Robertson v. Vandalia Trust Co., 66 S.W.2d 193. (2) The court erred in giving and reading to the jury plaintiff's Instruction 5 because said instruction submitted the question of the permanency of the injury and there was no evidence proving a permanent injury resulting from the alleged accident. Adelsberger v. Sheehy, 59 S.W.2d 644; Plank v. Brown Petroleum Co., 61 S.W.2d 328; Kimme v. Terminal Railroad Assn., 66 S.W.2d 561; Cox v. M., K. & T. Ry. Co., 76 S.W.2d 411; Weiner v. St. L. Pub. Serv. Co., 87 S.W.2d 191; Derschow v. St. L. Pub. Serv. Co., 95 S.W.2d 1173. (3) The court erred in giving and reading to the jury Instruction 1, on behalf of plaintiff, because said instruction is not supported by the evidence and is at variance with the evidence. Cases under Point (1). (4) The court erred in failing to hold that the verdict was grossly excessive, and so excessive as to have been the result of bias, passion and prejudice on the part of the jury. Shaw v. Railroad Co., 282 S.W. 425; Spencer v. Railroad Co., 317 Mo. 504; Morris v. Atlas Portland Cement Co., 323 Mo. 338; Gordon v. Muehling Pack. Co., 40 S.W.2d 702; Zichler v. St. L. Pub. Serv. Co., 332 Mo. 919; Hiatt v. Wab. Ry. Co., 334 Mo. 908; Osby v. Tarleton, 85 S.W.2d 35.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) There was ample evidence in the record to permit the jury to find that the status of master and servant existed between the appellant Fidelity-Phenix Fire Insurance Company, on the one hand, and the appellants English and his adjusting company, on the other hand. The testimony, and the inferences which can reasonably be drawn from it, establish that the instant case does not contain at least six of the eight elements, including the decisive one of right of control, of the commonly accepted tests for the determination of the relation of independent contrator. The appellant Fidelity-Phenix Fire Insurance Company's demurrer to the evidence was properly overruled in this connection. Morgan v. Bowman, 22 Mo. 538; Young v Wheelock, 333 Mo. 992, 64 S.W.2d 950; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617; Timmermann v. St. L. Iron Co., 318 Mo. 421, 1 S.W.2d 791; Lawhon v. St. Joseph Veterinary Laboratories, 252 S.W. 44; Rutherford v. Tobin Quarries, 82 S.W.2d 918; Flori v. Dolph, 192 S.W. 949; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Sargent v. Clements, 88 S.W.2d 174; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969. (2) The evidence was sufficient to establish that the appellant Fidelity-Phenix Fire Insurance Company was directly interested in the action of its agent and servant, English, in taking the police officers to Greenville for the purpose of bringing back to St. Louis the persons who had stolen the automobile insured by it. The fact that the necessity for English's going to Greenville was created by the work being done by him for the appellant Fidelity-Phenix Fire Insurance Company made the journey an act within the scope of his duties and employment, and the appellant Fidelity-Phenix Fire Insurance Company was not relieved of liability for his negligence in performing that act, notwithstanding that it might be said that he was engaged in his personal business and pleasure in taking the police officers along, and was accommodating them. The appellant Fidelity-Phenix Fire Insurance Company's demurrer was properly overruled in this connection. Haehl v. Wab. Ry. Co., 19 Mo. 325, 24 S.W. 737; State v. McClure, 325 Mo. 1228, 31 S.W.2d 39; Stith v. Newberry & Co., 79 S.W.2d 447; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; McMain v. O'Connor & Sons Const. Co., 85 S.W.2d 43. (3) The action of the trial court, in overruling the demurrers to the evidence offered by the appellants English and Thomas J. English Adjusting Company, was not error because: (a) The entire evidence offered at the trial established that English caused and permitted his automobile to strike "an elevated portion" of the highway, as alleged in the petition, there being no variance in that regard. (b) Even if there had been such a variance as these appellants contend, it would be immaterial, and an insufficient ground upon which to predicate error. R. S. 1929, sec. 817; Westover v. Wab. Ry. Co., 6 S.W.2d 843; Young v. Levine, 31 S.W.2d 978; Schneider v. St. Joseph L. H. & P. Co., 238 S.W. 468; Walton v. Carlisle, 313 Mo. 268, 281 S.W. 482. (4) There was no error in the giving of plaintiff's Instruction 1 because: (a) The instruction predicated a finding against the appellant Fidelity-Phenix Fire Insurance Company upon a finding of the facts correctly hypothesized to establish liability against that defendant under the principle of respondeat superior. Haehl v. Wab. Ry. Co., 119 Mo. 325, 24 S.W. 737; State v. McClure, 325 Mo. 1228, 31 S.W.2d 39; Stith v. Newberry & Co., 79 S.W.2d 447. (5) If it is not conceded, it is manifestly established by the evidence, that plaintiff suffered some injury on the occasion in question as the result of striking his head upon the top of the automobile, and the defendants' demurrers were, accordingly, properly overruled. Meyers v. Wells, 273 S.W. 110; Edmonson v. Hotel Statler Co., 306 Mo. 216, 267 S.W. 612; Kimmie v. Terminal Railroad Assn., 334 Mo. 596, 66 S.W.2d 561. (a) There was substantial evidence in the record to permit a finding by...