Miltenberger v. Hulett

• Decision Date: 05 April 1915
• Citation: 175 S.W. 111,188 Mo.App. 273
• Parties: ELLIOTT MILTENBERGER, Appellant, v. PAUL HULETT, Respondent
• Court: Kansas Court of Appeals

175 S.W. 111

188 Mo.App. 273

ELLIOTT MILTENBERGER, Appellant, v. PAUL HULETT, Respondent

Court of Appeals of Missouri, Kansas City

April 5, 1915

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

Judgment affirmed.

D. W Robert and Walker & Walker for appellant.

Gillespie & Conley for respondent.

OPINION

ELLISON, P. J.

In September, 1913, plaintiff came into Columbia, Missouri, as a passenger on one of the incoming trains, intending to enter the State University in that city, as a student. Defendant was in the transfer business and plaintiff on inquiring where he could find a transfer office was directed to defendant's. He went there and gave his trunk check to a man in the office directing him to send the trunk to his (plaintiff's) boarding house. The man took the check accepted pay for the transfer and said he would send the trunk as directed. It was never delivered, and defendant denies any knowledge of the transaction; stating, that if a man received the check and transfer charges, he was an imposter acting without authority. In response to this plaintiff claims the man was in defendant's office in apparent charge of his business and that he (plaintiff) had a right to rely upon appearances. The trial court found for defendant.

Defendant's place of business is a single room about eighteen feet square with a place for coal fuel cut off from one side. The room is about six feet above the street, and is reached by steps leading from the sidewalk. It has a glass front and there is a small place latticed off where defendant, or his assistant sat and generally transacted the business. Defendant's wife ordinarily occupied this place, and was in charge the day of the transaction in controversy.

Plaintiff testified in the circuit court that, "The man was standing there by a trunk which was standing quite inside the doorway. I handed him the check and asked him if he would deliver my trunk to my address 701 Hitt street and he said he would, and he took the check and wrote on it, as I suppose, 701 Hitt. He said, 'Do you want to pay for it now, or when it is delivered?' and I said, 'It don't make any difference, I would just as soon pay you now.' I handed him twenty-five cents and he marked it paid. Then I went out. When he wrote on the check he rested it upon a trunk." It appears from plaintiff's testimony that he did not see defendant's wife in the room, nor any one else, save this man.

Defendant's wife testified that she was in the room all day from seven o'clock in the morning until seven o'clock at night, that she ate her lunch in the room and was only absent a few moments when it was necessary for her to go into the place where the coal, above referred to, was kept.

The law is that if a proprietor of a place of business by negligence permits one who is not his agent to be in apparent charge and who assumes to transact the proprietor's business with a patron, the appearances being such as would lead a man of ordinary care, to believe the imposter was really his agent, he will not be permitted to take advantage of the imposter's lack of authority. [Ingalls v. Averitt, 34 Mo.App. 371; Tiffany on Agency, 34, 37; Story on Agency, sec. 127, and authorities infra.]

The evidence tended to show a state of facts which would render defendant liable under that statement of the law. It tended to show (if his wife was not present) that he had negligently left his place unoccupied and thereby gave opportunity to the imposter to impose upon an innocent stranger. Or, if his wife was left in charge, that she, temporarily at least, left the office without locking the door. Or, if she was not absent, she knew of the action of the imposter, or could have known, by the exercise of reasonable care.

In this state of the evidence in plaintiff's behalf, the court gave two instruction for him substantially embodying the law as above stated. In doing so the court found it necessary to add a qualification that plaintiff exercised the ordinary care of an ordinary prudent person in concluding that the man he found there was in charge and authorized to transact the business. The point of objection is that the qualification threw a burden of inquiry onto plaintiff as to one assuming to act as an agent with authority. If we judge by the argument in behalf of plaintiff, he draws inferences which the qualification does not justify. He asks: Must one dealing with a person in apparent charge of a store go out and inquire as to his authority? or must he require such person to exhibit his credentials? The instruction does not bear that meaning. The evidence was not conclusive as to the apparent character or authority of the man plaintiff found at defendant's place of business. Undoubtly, one entering the place of business of another, should not, under ...