Mabry v. Swift & Co.

• Decision Date: 02 December 1940
• Docket Number: No. 19792.,19792.
• Citation: 145 S.W.2d 163
• Court: Missouri Court of Appeals
• Parties: MABRY v. SWIFT & CO. et al.

145 S.W.2d 163

MABRY v. SWIFT & CO. et al.

No. 19792.

Kansas City Court of Appeals. Missouri.

December 2, 1940.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by Sid Mabry against Swift & Co. and another for damages sustained in an automobile collision. From a judgment denying plaintiff's motion to set aside an involuntary nonsuit as to named defendant, plaintiff appeals.

Affirmed.

H. K. Bente, of Sedalia, for appellant.

Montgomery, Martin & Montgomery, of Sedalia, for respondents.

BLAND, Judge.

This is an action for damages for personal injuries. The suit was brought against Swift and Company, a corporation, and Henry Wyatt, who made default and judgment went against him. The case proceeded to trial against the defendant, Swift and Company (hereinafter called the defendant). This appeal of the plaintiff results from the refusal of the court to set aside an involuntary nonsuit.

The petition alleges that the defendant is a corporation, with a place of business at Sedalia; that Wyatt was an employee and servant of the defendant and, that while in line of duty and in the service of the defendant, on September 9, 1939, he drove a truck, owned by him, westwardly on Main Street in Sedalia at an excessive rate of speed, and in a reckless, careless and negligent manner against plaintiff's car parked on the south side of Main Street, thereby completely wrecking plaintiff's automobile, to his damage in the sum of $825.00, for which judgment was prayed.

At the trial plaintiff called Wyatt as a witness and interrogated him with reference to his connection with defendant. During the course of the examination he testified that in the year 1935 he began hauling milk to the defendant, at its plant in Sedalia; that he hauled on what was designated as the Oak Grove milk route; that since 1935 he had been hauling milk continuously to defendant at Sedalia, except for about one year, during which time he hauled to the plant of the Page Milk Company at Marshall; that he was hauling milk to the defendant at Sedalia at the time of the collision; that the truck involved was his own truck and used by him in his work.

Plaintiff's counsel then asked Wyatt what duties defendant required him to perform. Thereupon, an objection was made by counsel representing the defendant on the ground that Wyatt was operating under a written contract. Such contract was thereupon produced by the defendant. Defendant had not signed the contract but the witness testified that it was signed by him in July 1939. Plaintiff then again attempted to prove by the witness what duties were required of him by the defendant. Defendant objected to the question and no ruling was made by the court. The court interrogated the witness and brought out the fact that the written contract which he signed was the one under which he had operated and that he had no other agreement with the defendant. Plaintiff's counsel then asked the witness if he did other things not covered by the contract. There was some discussion between the court and counsel for both parties. Counsel for plaintiff then stated: "Now each case stands on its own bottom. I am not trying to modify this contract, but I want to show what other things he done, so the Court can determine whether he was an independent contractor or not and I have a right, under the recent cases to do that; you have to have some evidence. Each case stands on its own bottom and it's the Court's duty to hear the evidence." The court then excused the jury and the following proceedings were had: The Court: "What do you want to show by this witness, Mr. Bente?" (Counsel for plaintiff) Plaintiff's attorney then said he wanted to show the court a case defining "who is an independent contractor". The court again said: "What do you want to show". Plaintiff's counsel then made a long offer of proof to the effect that he desired to show by Wyatt and other witnesses that defendant required the witness "to solicit the different farmers for the sale of their milk to Swift and Company and required him to make said solicitations on all deliveries and further required the witness Wyatt to deliver the checks to the various milk customers for Swift and Company", which the defendant would issue to each of the farmers covering the amount of milk sold to it. He further offered to show that Wyatt was required to give his personal services and attention to the business of the defendant in soliciting customers for the defendant and that the only money defendant paid the witness was "so much per hundred pounds" to haul the milk to the plant; that Wyatt "was at all times under the jurisdiction and control (of the defendant) in the matter and manner in which he delivered said milk to" it. The case was tried upon the theory that the court ruled adversely to plaintiff on the offer, although no such express ruling appears in the record. Plaintiff's counsel then asked counsel for defendant if he had offered the contract. Counsel for the defendant replied in the negative and then offered the written contract and it was introduced in evidence over plaintiff's objection. Thereupon, counsel for plaintiff stated: "This is all of the evidence I have on this phase of the case". Whereupon, the court gave the following instruction to the jury: "The court instructs the jury that under the law and under the evidence the plaintiff cannot recover against the defendant, Swift and Company." Thereupon, plaintiff took an involuntary nonsuit, with leave to move to set the same aside.

The contract in question was dated July 1st, 1939, and was entitled "Milk and Cream Carrier's Contract." Under its terms Wyatt agreed that he would furnish daily fresh sweet milk or cream delivery and empty milk can return transportation between the respective farms and other places in the Township of Oak Grove, Jackson County, to defendant's plant in Sedalia. The contract provided that it should run to the next ensuing April 30 and would be automatically renewed from year to year unless timely written notice was given discontinuing it; that the carrier should transport daily, Sundays and holidays included, by means of suitable equipment supplied and maintained by him at his expense and operated likewise at his expense, and deliver to the manufacturer at the latter's plant in Sedalia from each and every place specified in the schedule whatever milk or cream that might be tendered him along the route; that he should deliver promptly at each of said places, all empty milk cans which the manufacturer desired to send thereto and should the Act of God or extreme weather conditions prevent delivery he should notify defendant as soon as possible; that "It is the essence of this contract that...