Lechner v. Peters

• Decision Date: 17 February 1932
• Docket Number: 30018
• Citation: 46 S.W.2d 527,329 Mo. 891
• Parties: Martin Lechner, a Minor, by Estelle Lechner, His Next Friend, Appellant, v. Fred C. Peters
• Court: Missouri Supreme Court

46 S.W.2d 527

329 Mo. 891

Martin Lechner, a Minor, by Estelle Lechner, His Next Friend, Appellant, v. Fred C. Peters

No. 30018

Supreme Court of Missouri

February 17, 1932

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Appeal from an order sustaining a motion for new trial.

Affirmed and remanded.

Foristel Mudd, Blair & Habenicht for appellant.

(1) There was substantial evidence that defendant Peters paid the wages of the employees during the month of December and previous to the injury to plaintiff. The jury had a right to so find the fact, and the payment of the wages by Peters is competent evidence of his authority and control as master. 1 Labatt on Master & Servant, p. 60. (2) As the work being done by the truck driver at the time of his injuring the plaintiff was for the benefit of defendant Peters, and since Peters got all the benefits of the work during that month, that fact is sufficient to establish the existence of the relation of master and servant between Peters and the truck driver. 1 Labatt on Master & Servant, p. 69, sec. 22. (3) The suit is not based on the contract but on the negligence of Athey, the truck driver, as servant of defendant Peters. The contract was put in evidence as a step in proof of the relation of master and servant between Athey and defendant, arising out of defendant's acts and conduct under the contract. If because of the contract, Peters assumed and exercised the relation of master and the right of control over the business and the employees, then it was immaterial whether his contract actually gave him that right or not. Baker v. Milling Co., 20 S.W.2d 494; 39 C. J. p. 1344, sec. 1560 (cases under Note 19); Id. page 1323, sec. 1520.

Lewis & Rice and Jones, Hocker, Sullivan & Angert for respondent.

(1) The party having the right to discharge Athey and to give him orders not only as to what he was to do, but how it should be done, at the time of the injury to plaintiff, was his employer at that time, and there was no evidence from which the jury would have had the right to conclude that Peters had any such right. 39 C. J. 1269. (2) Under the written contract offered in evidence by the plaintiff, and under which the sale was made to defendant Fred C. Peters, such contract was until closed on December 31, 1925, wholly executory and depended upon a consummation of mutual agreements by the respective parties, and by its express terms the title to the business and property sold did not pass until said date. 35 Cyc. 274-275; Zwisler v. Storts, 30 Mo.App. 171, 172; Lovelace v. Stewart, 23 Mo. 386; Ridgeway v. Kennedy, 52 Mo. 25. (3) In the face of the written contract and the testimony of the witnesses, as well as the admissions of the seller on cross-examination, the title to the property sold did not pass until December 31, 1925, and control of the business, and particularly of the truck in question and its driver, was not under the supervision of the defendant Fred C. Peters. The mere conclusion testified to by Mrs. Schacht that defendant Fred C. Peters was in control of the business, or as to the effect of his acts between December 2nd and December 31, 1925, cannot alter the facts as shown by the written contract and the testimony of the seller and the other witnesses. This is true, regardless of the contention of counsel for appellant that such conclusions were not objected to in time or were not stricken from the record, which is not the fact. 2 Moore on Facts, sec. 1236; Tevault v. Citizens State Bank, 183 S.W. (Mo. App.) 358, 359; Van Bibber v. Swift & Co., 286 Mo. 337; Cosden Oil Co. v. Sides, 35 S.W.2d 817; Childers v. Pickenpaugh, 219 Mo. 435, 436.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Appeal by plaintiff from an order of the Circuit Court of the City of St. Louis sustaining defendant's motion for new trial. Plaintiff, then a boy about eight years of age, was struck and seriously injured by a truck at a street intersection in St. Louis. His suit was brought originally against the Busy Bee Motor Car Company, a corporation, the Schacht Company, a corporation, Fred C. Peters, individually, and Fred C. Peters, Fred W. Peters and A. B. Horton as partners. During the trial and before submission of the case to the jury plaintiff dismissed as to all defendants except Fred C. Peters and the case was submitted with him as the sole defendant.

The petition charged that the defendants collectively were engaged in the automobile repair business; that plaintiff was riding a bicycle southwardly in 39th Street at or near its intersection with Botanical Avenue, when he was struck and injured by an automobile truck owned by the defendants and being driven on their behalf westwardly in Botanical Avenue, his injuries being the result of the negligence of defendant's servant, the driver of the truck. There are ten specifications of alleged negligence on the part of the truck driver, but only two were submitted, viz., failure of the driver to keep his truck as close as practicable to the right side of the highway and negligence under the humanitarian rule. The answer of defendant Peters was a general denial.

The court refused defendant Peters' request for a peremptory instruction directing a verdict for him at the close of plaintiff's evidence and again at the close of all the evidence. Plaintiff recovered a verdict for $ 35,000. The court sustained Peters' motion for a new trial on the ground, specified of record, that the court had erred in refusing his requested instruction directing a verdict for him at the close of the evidence. From that order plaintiff appealed. Further facts will be given in connection with the discussion of issues upon which they bear.

The negligence charged is that of the driver of the truck. Defendant is sought to be held liable upon the theory that the driver was his servant or agent. The question for determination is, therefore, was there the relation of master and servant between Peters and said driver?

Plaintiff was injured on December 27, 1925. The driver of the truck which injured him was one Athey. On and prior to December 2 Athey was admittedly an employee of the defendant Busy Bee Motor Car Company, which then owned and operated the automobile repair and service business involved. One Elsie Schacht, widow of Arthur Schacht, owned or controlled the majority of the corporation stock and managed and controlled the business. On December 2, 1925, she made a contract with defendant Peters by which she agreed to sell and transfer to him, with other property, the above mentioned property, business and good will of said corporation which for brevity we will call the Busy Bee Company. The contract provides:

"This agreement, made and entered into in duplicate this 2nd day of December, 1925, by and between Elsie Schacht of the City of St. Louis, State of Missouri, hereinafter for convenience called 'Owner,' and Fred C. Peters of the City of St. Louis, State of Missouri, hereinafter for convenience called 'Purchaser,' witnesseth:"

Then followed provisions that the owner represents and agrees that she is administratrix of the estate of her deceased husband who owned certain described real estate and 30 shares of the total 90 shares of the Busy Bee Company; that certain portions of that and other real estate mentioned in the contract were leased for ten years to one Kempf at a named rental; that she and her husband owned by the entirety at his death certain other described realty which was rented to various tenants named, stating the amounts payable as rents; that she owns or controls 60 shares of the stock of the Busy Bee Company, is secretary and director and "that she absolutely controls the affairs of said corporation through her stock ownership and as an officer and director;" that all of the properties described are free of liens and encumbrances and that the property described in List A attached, which was to be conveyed to Peters, belonged to the Busy Bee Company or to her. (List A included the truck which struck plaintiff.) The contract then proceeds:

"Owner hereby agrees to sell, transfer and deliver or cause to be sold, transferred and delivered to said purchaser all of the land hereinabove described, together with all improvements fixtures and eqipment located upon said land (except the fixtures and equipment belonging to tenants hereinabove described, which fixtures and equipment are more particularly described in 'List B' hereto attached and made a part hereof) by warranty deed, and all of the personal property described in 'List A' by bill of sale, and to carry out the other obligations herein assumed by her, all for the consideration of $ 113,075, which amount said purchaser hereby agrees to pay as follows:

"(a) $ 5,000 cash as earnest money and part purchase price this day paid by purchaser to owner, the receipt of which is hereby acknowledged;

"(b) Balance of purchase price, to-wit, $ 108,075, in cash upon acceptance by purchaser from owner of warranty deeds and bills of sale evidencing the transfer of the real estate and personal property hereinabove described.

"Owner hereby further agrees to sell and deliver to said purchaser the good will of the Busy Bee Motor Car Company, together with the exclusive right to the use of the name 'Busy Bee Motor Car Company' and to change the name of that company if and when requested by purchaser so to do, so as to make it possible for said purchaser to organize a new company under said name. . . .

"Owner further agrees to comply with the Bulk Sales Law in transferring the property of the Busy Bee Motor Car Company and to take such other action as may be required from time to time by the attorney for the purchaser in order to completely vest...