Manus v. K.C. Distributing Corp.

• Decision Date: 24 August 1934
• Docket Number: No. 5352.,5352.
• Citation: 74 S.W.2d 506
• Parties: EARL MANUS, RESPONDENT, v. KANSAS CITY DISTRIBUTING CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

74 S.W.2d 506

EARL MANUS, RESPONDENT, v. KANSAS CITY DISTRIBUTING CORPORATION, APPELLANT.

No. 5352.

Springfield Court of Appeals. Missouri.

August 24, 1934.

Appeal from Circuit Court of Jasper County. — Hon. Wilbur J. Owen, Judge.

REVERSED.

Grover C. James and J.D. James for appellant.

Waldren & Andrews and S.W. Bates for respondent.

ALLEN, P.J.

The evidence in this case is, that Harry Byrd, about September, 1930, orally contracted with appellant to travel and sell radios in a territory including Southern Missouri, a part of Southern Kansas and Northern Arkansas. Byrd was to pay all his traveling expenses and receive five per cent commission on the gross sales. As a matter of accommodation, appellant advanced to him a weekly drawing account, for which Byrd made settlement once a month. If the commission amounted to more than $50 a week Byrd was to receive the amount over, and if under $50 a week the difference was to be charged back to Byrd.

Under the contract Byrd was to furnish his own car, pay for all gas and oil and repairs and also pay all his other traveling expenses. He testified that the brakes on his car were sensitive and that if he applied them with very much force the right front brake took hold first, or heavier than the others, which tended to pull the car to the right. He, personally, never had any accidents, because of his experience with and knowledge of the use of the car.

Mr. Evans, the general manager of the defendant company, while in Joplin on one occasion, and while his car was in the shop, borrowed Byrd's car for a short trip. When he returned he inquired of Byrd what was the matter with his brakes, and told him that the car almost threw him through the windshield. This conversation was had about two weeks before the accident in suit.

Byrd and his wife resided in Joplin, Missouri, at an apartment house, in which also resided respondent, Manus, and his wife.

On Saturday afternoon, about February 22, 1931, Byrd left Kansas City, the place of business of defendant, appellant, to go to Joplin. He was driving his car, a Chevrolet. He testified that he made the trip for two reasons, first: That he wished to visit with his wife, and second, that he wanted to interest respondent in buying from him and handling at his employer's store a vacuum cleaner. Respondent was employed at Newman's Department Store, at Joplin.

Byrd arrived at Joplin about nine o'clock that evening. He communicated with respondent, Manus, and suggested a conference with him, on the subject of the vacuum cleaner. Byrd stated that it was not convenient or practicable, on account of the close proximity of other people and the noise in the apartment, to discuss the matter of the vacuum cleaner with Manus, while in the apartment, and suggested that Mr. and Mrs. Manus and he and Mrs. Byrd take a drive, during which they could better discuss the matter. Later in the evening the two couples, in Byrd's car, drove to a road house in or near Pittsburg, Kansas, where they had lunch and some time later in the evening Byrd went alone to another place close by and obtained some liquor. After he returned to the road house and some time between twelve o'clock midnight and one o'clock in the morning they started back to Joplin. It was raining and the pavement was wet. Byrd asked Manus, the respondent, to drive, giving as his reason that he was tired and that he wanted to visit with Mrs. Byrd on the way back. Manus and his wife took the front seat and leaving the road house Manus was driving. Some five or six miles east of Pittsburg, at a curve in the road Manus suddenly applied the brakes, with the result that the car veered to the right and overturned, injuring Manus, respondent, for which injuries this suit was brought.

Byrd was at first made a co-defendant with the appellant, but later and during the trial, the case was dismissed as to him and proceeded against the Kansas City Distributing Corporation, as the only defendant.

THE PETITION.

The petition is in substance, as follows:

That the defendant, Distributing Corporation, had its place of business in Kansas City, Missouri, from where it engaged in the business of selling radios, radio supplies and accessories and other musical instruments. The defendant, Byrd, was in the employ of the defendant corporation, as its agent and salesman. That under the terms of his employment and in the promotion of its business, defendant Byrd, drove and operated a Chevrolet automobile, which was then and there and for a long time prior thereto, in a dangerous and defective condition, in that its brakes had been and were improperly adjusted, and in a defective and dangerous condition. That as a result of the carelessness and negligence of the defendants in permitting the brakes to be and remain in said dangerous and defective condition, and in requesting, directing and allowing plaintiff to drive said automobile, plaintiff received the injuries of which he complains.

The answer of the Distributing Corporation was a general denial and an allegation of contributory negligence.

At the close of the evidence of plaintiff the case was dismissed as to defendant, Harry Byrd.

The verdict of the jury was for the plaintiff in the sum of $1875.

At the close of the plaintiff's evidence appellant, Distributing Corporation, asked an instruction in the nature of a demurrer to plaintiff's evidence, which was refused.

The sole assignment of error, by plaintiff, was as follows:

"1. The court erred in refusing to instruct the jury at the close of the plaintiff's evidence that under the pleadings and the evidence the verdict should be for defendant, Kansas City Distributing Corporation."

In substance, the facts shown by the evidence in the trial, are as follows:

Respondent was driving Byrd's car at the time of the accident. That he was driving at the request of Byrd, because he (Byrd) said he was "tired and tight," and in addition wanted to visit with his wife on the way back from Pittsburg, Kansas to Joplin, Mo.

It is urged by respondent that the proximate cause of the injuries to respondent was the negligence of appellant, in not requiring Byrd, who at first was co-defendant in this case, to have the brakes on his car repaired, after Mr. Evans, one of the appellant's officers became aware of the condition of the brakes on the car.

It is our opinion, however, that in using Byrd, appellant's co-defendant, as the only witness, who testified as to Byrd's relationship with the defendant corporation, was bound by his testimony with regard to the understanding and arrangement between Byrd and the appellant, and in that respect Byrd testified that he was the owner of the car. That he drove the car anywhere he wished, without the company's direction or consent. That he was free to go anywhere in his territory that he wished, which he did, unless the appellant called his attention to some specific prospect of sale of which he, Byrd, was not informed. He was free to follow his own route in his own territory at his own time, and in his own way. That appellant had no control over his car and nothing to do with the repair or upkeep thereof. That he, Byrd, bought his own gasoline and oil and everything that was necessary to operate the car, at his own expense; that he was required to furnish all repairs necessary to the use of the car. That the sole remuneration for his (Byrd's) services, was a commission of five per cent on the gross sales, which he made.

Not a word of testimony was offered, tending to show any understanding upon the part of appellant that it had or claimed to have any control or authority over Byrd's movements, or the use of his car. Within the territory allotted to him, Byrd, was at liberty to go when and where he pleased. Therefore, it appears to us that the evidence disclosed an undisputed degree of independence, so far as Byrd was concerned.

There was no contention that Byrd was not a fit and competent person to exercise independent judgment and discretion in the business for which appellant contracted with him.

The rule in such cases is very clearly stated in the case of Gayle v. Missouri Car & Foundry Company, 177 Mo. l.c. 446, 76 S.W. 987, and cases therein cited:

"The legal test for the determination of this question is stated by Judge THOMPSON in his work on Negligence, Vol. 2, p. 899, Sec. 22 as follows:

"`The general rule is that one who has contracted with a competent and fit person, exercising independent employment, to do a piece of work not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor or his servants, committed in the prosecution of such work.

"`An independent contractor is one who renders service in the course of his occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.'

"This statement of the law specifically approved in Fink v. Mo. Furnace Co., 82 Mo. 276, 52 Am. Rep. 376, in which case it was held that the foregoing statement of the law had been recognized and affirmed in Hilsdorf v. St. Louis, 45 Mo. 98, 100 Am. Dec. 352; Morgan v. Bowman, 22 Mo. 538; Clark v. Ry. Co., 36 Mo. 218; Barry v. St. Louis, 17 Mo. 121. Those cases were reaffirmed in Long v. Moon, 107 Mo. 334, 17 S.W. 810, and again in Crenshaw v. Ullman, 113 Mo. l.c. 639, 20 S.W. 1077... . The rule announced by Judge THOMPSON and approved so often by this court, is approved by Shearman and Redfield on Negligence, pp. 164, 165; ... But it is not easy always to say that the facts of a given case bring it within the definition of an independent contractor. Sherman and Redfield on Negligence declare such contractor to be one who undertakes to do specific piecework for other persons, without submitting himself to their...