Margulis v. National Enameling & Stamping Co.

• Decision Date: 03 February 1930
• Docket Number: 28059
• Parties: Hyman Margulis v. National Enameling and Stamping Company, Appellant
• Court: Missouri Supreme Court

23 S.W.2d 1049

324 Mo. 420

Hyman Margulis v. National Enameling and Stamping Company, Appellant

No. 28059

Supreme Court of Missouri

February 3, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert and W. A. McCaleb for appellant.

(1) One who seeks recovery in damages on the theory of respondeat superior has the burden of proving the relationship of master and servant. Hays v. Hogan, 200 S.W. 286; Drolshagen v. Railroad Co., 186 Mo. 259; Patterson v. Millican, 66 So. 914; Hartnett v Gryzmish, 105 N.E. 988; Burns v. Paint Co., 116 N.W. 182; Neff v. Brandies, 135 N.W. 232; Ferguson v. Winter, 150 P. 299; Silverman v. Garibaldi, 116 N.Y.S. 780; Cullen v. Thomas, 135 N.Y.S. 22; Texas Co. v. Clark & Co., 182 S.W. 351; Western Union Tel. Co. v. Lamb, 203 S.W. 752; Dearholt Motor Sales Co. v. Merritt, 105 A. 316. (2) Right of master to control method and detail of work as to time, place and manner is essential to relation of master and servant. Pyyny v. Biscuit Co., 149 N.E. 541; McCarthy v. Souther, 137 A. 445; Barton v. Studebaker Corp., 189 P. 1025; Premier Motor Mfg. Co. v. Tilford, 111 N.E. 645; Aldrich v. Grocery Co., 89 So. 289; Harris v. McNamara, 12 So. 103; Lookout Mt. Iron Co. v. Lea, 39 So. 1017; Republic Iron Co. v. McLaughlin, 75 So. 962; Fink v. Furnace Co., 82 Mo. 276; Goodrich v. Fence & Auto Co., 135 N.W. 58; Western Indemnity Co. v. Pillsbury, 159 P. 721; Singer Mfg. Co. v. Rahn, 132 U.S. 523; Crenshaw v. Ullman, 113 Mo. 638; Schroer v. Brooks, 224 S.W. 53; Kipp v. Oyster, 133 Mo.App. 711; Jackson v. Butler, 249 Mo. 342; Hopkins v. Empire Eng. Co., 137 N.Y.S. 478. (3) A witness is not necessarily incompetent to testify by reason of the fact that he has been confined in an asylum. State v. Herring, 268 Mo. 535; Singleton v. State, 124 S.W. 92. (4) Former incarceration in an asylum for the insane affects only the competency of a witness to testify and that question is for the court. Evidence as to competency must be submitted to the court, and it is improper and prejudicial to submit such evidence to the jury to affect the credibility of the witness. Equitable Powder Co. v. Ry. Co., 150 S.W. 1028; People v. Harrison, 123 P. 200; People v. Tyree, 132 P. 784; Hicks v. State, 75 N.E. 641; Campbell v. State, 23 Ala. 44; Bell v. Riner, 16 Oh. St. 45. (5) The damages are excessive. Miller v. Schaff, 228 S.W. 488; Foster v. Davis, 252 S.W. 433; Stahl v. Ry. Co., 287 S.W. 628; Lessenden v. Railroad, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Greenwell v. Railroad, 224 S.W. 404.

Jesse T. Friday and Harry Baer for respondent.

(1) The relationship of master and servant was clearly shown by the evidence on behalf of plaintiff. Gordner v. Screw Co., 210 S.W. 930, 201 Mo.App. 349; Koelling v. Fuel & Ice Co., 267 S.W. (Mo. App.) 34; Burgess v. Garvin, 272 S.W. (Mo. App.) 108; Wendt v. Holbrook-Blackwelder, 299 S.W. 66; Hoelker v. American Press, 296 S.W. 1008. (2) On cross-examination, a witness may be compelled to answer any questions which may tend to test his credibility, or to shake his credit by injuring his character, however irrelevant to the facts in issue, or however disgraceful the answer may be to himself, except where the answer would expose him to a criminal charge. Muller v. Hospital Assn., 5 Mo.App. 401; State v. Miller, 100 Mo. 619; State v. Taylor, 118 Mo. 159; State v. Hack, 118 Mo. 92; State v. Potts, 239 Mo. 403; Wendling v. Bowden, 252 Mo. 697; State v. Blocker, 278 S.W. 1016; Brendel v. Elec. L. & P. Co., 252 S.W. 640; Asadorian v. Sayman, 282 S.W. 507. (3) The verdict is not excessive. Evans v. General Explosives Co., 239 S.W. 487; Skinner v. Davis, 280 S.W. 37; Hughes v. Ry., 274 S.W. 703; Johannes v. Laundry Co., 274 S.W. 377; Burton v. Gro. Co., 13 S.W.2d 569; Kleinlein v. Foskin, 13 S.W.2d 659; Schupback v. Meshevsky, 300 S.W. 468; Downing v. Biscuit Co., 8 S.W.2d 887.

OPINION

Frank, J.

Action by plaintiff, respondent here, against defendants, National Enameling & Stamping Company and Justus W. Pfaff, to recover for personal injuries sustained by plaintiff on May 9, 1925, as a result of being struck by an automobile driven by defendant Pfaff. Verdict and judgment in favor of plaintiff in the sum of $ 27,500. Defendant, National Enameling & Stamping Company appealed.

The case was submitted to the jury under the humanitarian rule.

No question is raised as to the sufficiency of the evidence to establish prima-facie that plaintiff's injuries were caused by the negligence of the driver of the automobile. The claim is that appellant's demurrer to the evidence should have been given for the reason that the evidence did not tend to show that defendant Pfaff, the driver of the car, was a servant of appellant, and was at the time in question operating the car as the agent and servant of appellant.

Pfaff, the driver, testified that on May 9, 1925, he was sales manager and city salesman for appellant and had been such for about two and one-half years; that he owned the car, but appellant paid the cost of its upkeep, which included gasoline, oil, tires and general wear and tear on the car; that at the time the car struck plaintiff, he (Pfaff) was driving the car and was on his way from his office at the plant to call on Kinberg Brothers, in St. Louis, Missouri, regular customers of appellant, for the purpose of selling them a bill of goods for appellant. The foregoing is all the evidence touching the relation existing between appellant and Pfaff, the driver of the car.

Appellant's contentions are (1) that the burden was on plaintiff to prove the relationship of master and servant between appellant and Pfaff, and (2) that the right of the master to control the method and detail of the work as to time, place and manner is essential to the relation of master and servant.

The disposition of these contentions involve (1) the determination of the character and quantum of evidence necessary to show prima-facie the relation of master and servant, and (2) whether or not the record contains such evidence.

The demurrer to the evidence challenges the sufficiency of the evidence to show, prima-facie, that Pfaff was appellant's servant, and in furtherance of appellant's business at the time it struck and injured plaintiff.

In 39 Corpus Juris, section 1590, page 1361, it is said:

"The relation of master and servant is prima-facie established where it is shown that the alleged servant was performing labor for defendant at the time of the injury."

In Perry v. Ford, 17 Mo.App. 212, the defendant Brown, owner of a certain building and premises adjacent thereto, employed one Cotter to reconstruct and remodel a certain water closet and privy vault located on said premises. In doing said work the vault was left open and unguarded without any light or signal to warn those who would have occasion to pass that way. The plaintiff fell into said vault and was injured. The suit was against the owner of the building to recover damages for such injuries. The employees of Cotter did the actual work of repairing the water closet. The only evidence as to the contract made by defendant for the repair of the water closet, was the testimony of defendant himself, who said: "I gave the contract to repair this closet to Mr. Cotter, and when he got ready to repair it, I went with him into the saloon and told Mr. Alms I was now ready to repair the closet." Contention was made in that case that the mere statement of defendant that he gave the contract for the work to Cotter raised the presumption that the relation between defendant and Cotter was that of contractor and contractee and not that of master and servant. The court disposed of this contention by saying: "Such is not our opinion. Prima-facie a person found doing a service for another is in the other's employ. [Wood on Master and Servant, p. 584.]" The court further said:

"It cannot then be presumed that Cotter was a contractor and not a servant from the mere general statement by defendant, that he had given the contract to Cotter. But if the defendant wants to relieve himself of liability as master in this case by reason of the relation of contractor, the defendant must prove the existence of that relation. If the defendant wants to escape liability because by the terms of the contract his liability has been imposed upon Cotter, he must prove the terms of the contract. From the evidence in this case the terms of the contract do not appear and we cannot say that Cotter was not defendant's servant. The presumption is that Cotter was such servant. The evidence does not tend to rebut that presumption."

In 39 Corpus Juris, section 1582, page 1356, it is said: ". . . if defendant claims that he is not liable because the work was being done by an independent contractor, the burden is on him to prove such relationship, especially where a prima-facie case to show the relation of master and servant is made out, and where the facts recited are as consistent with the theory of the relation of master and servant as with that of independent contractors."

The same conclusion is reached by the Kansas City Court of Appeals in Knoche v. Pratt, 194 Mo.App. 300, 304, 305, 187 S.W. 578.

In the instant case, the only evidence bearing on the relation between appellant and defendant Pfaff, is the testimony of Pfaff, who said that he was sales manager and city salesman for appellant and at the time his car struck the plaintiff he was on his way from his office to call on a regular customer of appellant for the purpose of selling this customer a bill of goods for appellant. This evidence shows that Pfaff was in appellant's employ as salesman and at the time in question was using the car in the performance of a service for a...