Leidy v. Taliaferro

• Decision Date: 13 July 1953
• Docket Number: No. 43320,No. 2,43320,2
• Citation: 260 S.W.2d 504
• Parties: LEIDY v. TALIAFERRO
• Court: Missouri Supreme Court

Page 504

260 S.W.2d 504

LEIDY v. TALIAFERRO.

No. 43320.

Supreme Court of Missouri, Division No. 2.

July 13, 1953.

Rehearing Denied Sept. 14, 1953.

Lewis F. Randolph, St. Joseph, Abe Goldman, St. Joseph, for appellant.

Brown, Douglas & Brown, R. A. Brown, Jr., St. Joseph, for respondent.

BARRETT, Commissioner.

On Tuesday, the 2nd day of August 1949, Thomas A. Leidy, Senior, and Thomas A. Leidy, Junior, were returning to St. Joseph from Oklahoma City in a 1949 Ford pickup truck. Approximately eight miles north of Nevada on U. S. Highway 71, Thomas A. Leidy, Senior, to avoid an oncoming truck, drove off the pavement and lost control of the pickup and it turned end over end. The Leidys claimed that as the vehicles passed the large truck struck the left rear end of the pickup. To recover damages for his resulting personal injuries Thomas A. Leidy, Junior, instituted this action against Earl A. and Robert W. Overby, the owners of the large truck, and against J. R. Taliaferro upon the allegation that his father, who negligently drove the pickup, was 'the agent, servant and employee' of Taliaferro. At the close of the plaintiff's evidence the trial court directed a verdict in favor of Taliaferro upon the theory that Thomas Leidy, Senior, was not Taliaferro's agent or employee. The plaintiff dismissed his action as to the Overbys and upon the trial court's overruling his motion for a new trial as to Taliaferro perfected his appeal to this court. Thus, the sole question for decision is whether there was probative evidence from which a jury could reasonably find that Thomas A. Leidy, Senior, was the agent or employee of Mr. Taliaferro on the return trip from Oklahoma City.

The pickup truck belonged to Modern Motors, Incorporated, the authorized Ford dealer in St. Joseph. Mr. Taliaferro is the president and majority stockholder of Modern Motors and in a deposition said, since he is the president and majority stockholder, that the corporation authorizes him to use the corporation's employees in his personal business. Thomas A. Leidy, Senior, was regularly employed by Modern Motors as a maintenance man. It is Mr. Taliaferro's theory that both Leidy, Senior, and Leidy, Junior, were employees of Modern Motors and that they were in the course of their employment on the occasion of the accident and that any claims either of them may have had for injuries were subject to the jurisdiction of the Industrial Commission. Both of the Leidys testified, however, that Thomas Leidy, Junior, was not employed by Modern Motors in 1949 and had not been for over a year and a half. But, as counsel for Mr. Taliaferro stated in the trial court, this action by Thomas Leidy, Junior, is against Mr. Taliaferro personally and it is immaterial that he may have been an employee of Modern Motors if his father was in fact Mr. Taliaferro's personal agent or employee upon the occasion of his injuries. Thomas A. Leidy, Senior, received thirty-nine drafts from Modern Motors' compensation insurance carrier and finally made application for and received a 'lump sum' settlement, the payments totaling $4000. So, as between Leidy, Senior, and his regular employer, Modern Motors, Mr. Leidy may have made an election of remedies, Neff v. Baiotto Coal Co., Mo.Sup., 234 S.W.2d 578, but Leidy, Junior, even if an employee of Modern Motors and receiving compensation, is not precluded from suing Mr. Taliaferro if in fact his father was Mr. Taliaferro's personal agent or employee. Schumacher v. Leslie, 350 Mo. 1238, 232 S.W.2d 913; V.A.M.S. Sec. 287.150; Restatement, Agency, Sec. 374.

The parties cite and rely upon workmen's compensation cases, but they are applicable only in so far as they deal generally with the law of principal and agent or master and servant and are helpful only by way of analogy. This is a common law action for negligence, and whether Leidy, Senior, was the personal agent or employee of Mr. Taliaferro on the trip from Oklahoma City to St. Joseph, so as to render Mr. Taliaferro liable for Leidy, Senior's negligence, O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, 1088, is to be determined by the generally recognized and accepted common law rules governing the relationship of master and servant of principal and agent. 5 Am.Jur., Sec. 374, p. 711. 'Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' Restatement, Agency, Sec. 1. The parties may not have intended to create the legal relationship or to have subjected themselves to the liabilities which the law imposes as a result of it, nevertheless, the relationship exists 'if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act.' Restatement, Agency, Sec. 15. Once the relationship is fixed 'a master is subject to liability for injuries caused by the tortious conduct of servants within the scope of their employment.' Restatement, Agency, Secs. 219, 243. In this connection it may be noted that 'a person may be the servant of two masters' (Restatement, Agency, Sec. 226), or he may become the lent servant of another (Restatement, Agency Sec. 227), or he may act with a mixed or double purpose for himself and another. Foster v. Campbell, 355 Mo. 349, 196 S.W.2d 147; Restatement, Agency, Sec. 236.

With these fundamentals in mind the circumstances of the trip from St. Joseph to Oklahoma City and return were these: Mr. Taliaferro's mother died in Oklahoma City and Leidy, Senior, said that on Saturday, July 30th, 1949, 'Mr. Taliaferro wanted me to go down and haul some goods back that his mother left when she died.' He was to go to Mrs. Taliaferro's residence in Oklahoma City, load the goods on the pickup truck and deliver them to Mr. Taliaferro's residence in St. Joseph, 1911 North 22nd Street. He was to start on the trip the following day, Sunday, which was not a regular work day at Modern Motors. Mr. Taliaferro told him that he could take his wife along but Mrs. Leidy could not go and 'I said, 'How about the boy? Can he go along?' And he said, 'Yes, he will be company for you to go along.'' So Leidy, Senior, asked his son to accompany him on the trip. There was no arrangement for Leidy, Junior, to receive any pay and it does not appear that he was to perform any duties on the trip, and there was no specific arrangement for Leidy, Senior's compensation. Mr. Leidy said...