Lajoie v. Rossi

• Citation: 37 S.W.2d 684,225 Mo.App. 651
• Parties: HENRY LAJOIE, RESPONDENT, v. MICHAEL ROSSI, APPELLANT
• Decision Date: 06 April 1931
• Court: Kansas Court of Appeals

37 S.W.2d 684

225 Mo.App. 651

HENRY LAJOIE, RESPONDENT, v. MICHAEL ROSSI, APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Buchanan County--Hon. L. A. Vories Judge.

REVERSED.

Judgment reversed.

A. J Bielby, Melvin Duvall and W. J. Boyd for respondent.

Landis & Landis for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in damages wherein plaintiff seeks to recover for loss of services and companionship of his wife, by reason of personal injuries alleged to have been sustained by her in a collision between an automobile in which she was seated and one driven by defendant, Tony Rossi.

The facts of record are that defendants are father and son and that Tony Rossi, an adult, resided at his father's home in the City of St. Joseph. The son owned and operated an automobile.

Plaintiff and his wife resided at No. 415 West Chestnut Street in St. Joseph, Missouri, and their daughter and son-in-law, Mr. and Mrs. Raymond Gilbert, lived with them. About 7:15 P. M. on October 4, 1929, the wife of plaintiff was seated in the rear seat of an automobile, owned and operated by her son-in-law, Raymond Gilbert, said car having been backed out of an alley on the north side of Chestnut Street, a street running east and west in said city, and to the south side of said Chestnut Street where it was stopped, headed north, with its headlights burning. While the Gilbert car was thus located, defendant Tony Rossi, driving a Ford roadster west along Chestnut Street at a rate of speed variously estimated at 40 to 50 miles per hour, ran into and against the Gilbert car in which plaintiff's wife was seated. As a result of the collision, plaintiff's wife received a comminuted fracture of the right shoulder blade, an injury to the right shoulder and right elbow. She was taken into her home, a surgeon was called and she was then taken to a hospital. Her shoulder was bandaged and her arm strapped to her side, after which it is alleged she was completely disabled for several weeks and will be partially disabled permanently.

The testimony shows that immediately before the collision, the elder Rossi asked his son to go to a grocery store which was within a few blocks of their home, and make a purchase of some pancake flour and coffee for breakfast. It is also in evidence that Tony Rossi intended to "see some boys" after he got the supplies for his father. On this point Tony testified:

"A. Dad told me to go down to the store and get some pancake flour and coffee. . . .

"Q. Were you going after this coffee and pancake flour your father told you to get when this collision happened? A. Yes. . . .

"Q. Were you going down to see some boys? A. After I got the pancake flour and coffee."

The testimony develops no dispute that Tony Rossi bought and paid for the Ford roadster himself, and that it was his car. The petition is directed against Tony Rossi and Michael Rossi and alleges the facts as above stated, and charges Tony Rossi was the agent, servant and employee of Michael Rossi and was then and there in charge of and operating said automobile. The negligence charge is, as follows:

"That, at said time and place, defendant Tony Rossi and defendant Michael Rossi, by defendant Tony Rossi as his servant, agent and employee, carelessly, negligently and recklessly ran and drove said automobile and motor vehicle in a westerly direction upon and along said Chestnut Street and into, upon and against the automobile in which plaintiff's wife was seated, at a rapid, high and dangerous rate of speed, under the circumstances, and negligently ran, drove and propelled said automobile and motor vehicle in a westerly direction upon and along said Chestnut Street and into, upon and against the automobile in which plaintiff's said wife was seated, without sounding or giving any warning, by auto horn or other signal device thereon, of the approach thereof to the automobile in which plaintiff's said wife was seated, as aforesaid, and negligently ran, drove and propelled said automobile and motor vehicle upon and against the automobile in which plaintiff's said wife was seated, as aforesaid, and negligently turned and drove said automobile and motor vehicle into, upon and against the motor vehicle and automobile in which plaintiff's said wife was seated, when by the exercise of due and proper care, defendants' said automobile and motor vehicle could have been stopped, or the course thereof changed, in time to have averted a collision with the automobile in which plaintiff's said wife was seated, as aforesaid; that in time and when defendants' automobile and motor vehicle was far enough away from the automobile in which plaintiff's said wife was seated so that, by the exercise of due and proper care defendant Tony Rossi and defendant Michael Rossi, by his agent, servant and employee Tony Rossi, could have stopped their automobile, or turned the same around the automobile in which plaintiff's said wife was seated and thereby have averted a collision with the automobile in which plaintiff's said wife was seated, defendants saw, or in the exercise of due and proper care would have seen, the automobile in which plaintiff's said wife was seated, in said Chestnut Street, and in a position of danger of being struck and collided with unless defendants' said automobile was stopped or the course thereof changed, and that thereafter defendants negligently failed to stop said automobile or motor vehicle, or to change the course thereof, and negligently ran, drove and propelled said automobile and motor vehicle into, upon and against the automobile in which plaintiff's said wife was seated, as aforesaid."

Judgment is asked against both defendants in the sum of $ 10,000. The answer of defendant Michael Rossi is a general denial. The cause was tried to the court and jury, resulting in a verdict for plaintiff in the sum of $ 3,000, against both defendants. At the close of plaintiff's evidence and again at the close of all the evidence, defendant Michael Rossi filed demurrers which were overruled. A motion for new trial was unavailing and defendant Michael Rossi appeals.

The facts as to the cause of the injury to plaintiff's wife are not in dispute. The controversy is (1) as to the liability of Michael Rossi, and (2) as to the amount of the judgment. The motion for new trial urges thirteen points, as shown by the record, but on appeal there are only three assignments of error, as follows: (1) That the verdict is excessive and was the result of passion and prejudice; (2) that the court erred in giving plaintiff's instructions 1 and 2, and (3) in refusing defendant, Michael Rossi's instruction "A" in the nature of a demurrer, offered at the close of plaintiff's case and again at the close of all the evidence. For convenience we shall first consider assignment No. 3, for, if defendant's theory therein is found to be tenable, assignments 1 and 2 need not be considered, the contention being that, as a matter of law, defendant Michael Rossi is not liable for the act of his adult son in operating his own car when not in the employment of his father.

In view of the evidence of record, plaintiff's case is bottomed upon the theory of respondeat superior, and that doctrine may not be held to apply unless there is present in the situation either an employee, servant or agent. It is the law that there is a responsibility placed on one who is having a service rendered in his behalf on either of two grounds, namely, (1) that the service is in itself unlawful; or (2) the manner of the execution of the service was not lawful and was within the control of the master. Except on one of these grounds, the rule of respondeat superior does not apply, and as to the first, it is not contended the service herein was unlawful and that point therefore is not in the case. As to the second ground, the question as to whether or not the appealing defendant may be lawfully held responsible for his son's alleged tortious act depends upon the fact of agency which, of course, includes within its scope the service of a servant or employee.

The relation of principal and agent is contractual. [State ex rel. v. Cox, 286 S.W. 368, 315 Mo. 619.] An agent is defined as one who acts for another by authority from him; one who undertakes to transact some business or manage some affair for another by authority of, and on account of the latter. The term agent applies to anyone who, by authority, performs an act for another. [Peters v. Railroad Co., 150 Mo.App. 721, 131 S.W. 917; 160 Mo.App. 629, 140 S.W. 1197.]

It may be well at this point to discuss the question of servant and employee. A servant is defined as "one who serves or does service, voluntary or involuntary; one who is employed by another for menial offices or for other labor, and is subject to his command; a person who labors or exerts himself for the benefit of another, his master or employer; a subordinate helper." [3 Bouvier's Law Dict. pp. 3047, 3048; Flesh v. Lindsay, 115 Mo. 1, 21 S.W. 907.] And it is held the right of the master to the services of his servant in every respect is grounded on the contract between them. There is no proof, nor is there any contention herein, that Tony Rossi was under contract with his father as a servant. It is plaintiff's position, and the petition so alleges, that Tony Rossi was the servant of his father Michael Rossi in respect to the errand upon which Tony was bent when the accident occurred. It is pointed out in this connection and is true...