Mullally v. Langenberg Bros. Grain Co.

• Decision Date: 12 November 1936
• Parties: Alice Turner Mullally v. Langenberg Brothers Grain Company, a Corporation, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 645

339 Mo. 582

Alice Turner Mullally v. Langenberg Brothers Grain Company, a Corporation, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge;

Reversed.

Hollingsworth & Francis, Joseph N. Hassett and Ernest E Baker for appellant.

(1) Plaintiff was not entitled to recover against defendant on account of injuries she alleges were negligently inflicted upon her by her husband while allegedly in the employ of defendant. Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084; Ex parte Badger, 226 S.W. 936, 286 Mo. 139; Planck v. Planck, 199 S.W. 1183; Rogers v Rogers, 177 S.W. 382, 265 Mo. 200; Rice v. Gray, 34 S.W. 567; Faris v. Hope, 298 F. 727; Maine v. Maine & Son, 201 N.W. 20, 198 Iowa 1278; Riser v. Riser, 240 Mich. 402; Emerson v. Western Seed & I. Co., 216 N.W. 297; Caines v. Mercer, 55 S.W.2d 263; Meece v. Holland Furn. Co., 269 Ill.App. 164; Sacknoff v. Sacknoff, 161 A. 669; David v. David, 157 A. 755. (2) Under the doctrine of respondeat superior, the master is not liable for negligent injuries where the servant is not liable and the master has action over against the servant to recover any loss sustained due to the negligence of the servant. Wright v. Hannan & Everitt, Inc., 81 S.W.2d 303; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899; McGinnis v. C. R. I. & P. Ry., 200 Mo. 347, 98 S.W. 590; Michely v. Miss. Valley Steel Co., 221 Mo.App. 205, 299 S.W. 830; New Orleans & N. E. Ry. v. Jopes, 142 U.S. 18; 39 C. J. 1265, note 8. (3) Plaintiff was not entitled to recover against defendant in this case, because: (a) There is no substantial evidence in the record sufficient to make a question of fact as to whether plaintiff's husband, the alleged employee of defendant, was at the time of the accident acting as a servant for defendant within the scope of his employment, so as to make defendant liable for his negligence. McMain v. Connor & Son Co., 85 S.W.2d 43; Duggan v. Toombs-Fay Co., 228 Mo.App. 61, 66 S.W.2d 973; Wolf v. Term. Railroad Assn., 282 Mo. 559, 222 S.W. 114; Gutherie v. Holmes, 272 Mo. 215, 198 S.W. 854; Anderson v. Nagel, 214 Mo.App. 134, 259 S.W. 858; Melcher v. Handelman, 249 S.W. 152; Ursch v. Heier, 210 Mo.App. 129, 241 S.W. 439; Kilroy v. Crane Agency, 203 Mo.App. 302, 218 S.W. 425; Calhoon v. Mining Co., 202 Mo.App. 564, 209 S.W. 318; LaJoie v. Rossi, 225 Mo.App. 651, 37 S.W.2d 684. (b) There is no substantial evidence in the records that the defendant invited plaintiff to accompany her husband, Dan S. Mullally, or that Dan S. Mullally had any authority to invite plaintiff and thereby bind his employer, and such invitation as he extended to plaintiff was without authority and beyond the scope of his employment and was not sufficient to make plaintiff an invitee of defendant. Berry v. Springfield, 13 S.W.2d 552; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Hall v. Railroad Co., 219 Mo. 553; Stipitich v. Security Stove & Mfg. Co., 218 S.W. 964; Hartman v. Muehlebach, 64 Mo.App. 565.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) Plaintiff is entitled to recover, from her husband's employer, damages for injuries suffered by her as the direct result of the negligence of her husband while he was acting within the scope of his employment by the defendant. Schubert v. Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, affirming, 223 A.D. 502, 228 N.Y.S. 604; Poulin v. Graham, 102 Vt. 307, 147 A. 698; Hensel v. Hensel Yellow Cab Co., 209 Wis. 489, 245 N.W. 159; Met. Life Ins. Co. v. Huff, 48 Ohio App. 412, 194 N.E. 429; Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107, 68 A. L. R. 1497; Smith v. Smith, 179 S.E. 812. (2) Defendant's liability for the acts of its agent and servant done within the scope of his authority, under the doctrine of respondeat superior, is primary and independent, and rests upon the maxim that "what one does by another, he does by himself." Stith v. Newberry & Co., 79 S.W.2d 447; Haehl v. Wab. Railroad Co., 119 Mo. 325, 24 S.W. 737; State v. McClure, 325 Mo. 1228, 31 S.W.2d 39; Gorman v. K. C. Showcase Works Co., 19 S.W.2d 559; Daniel v. Phillips Petroleum Co., 73 S.W.2d 355; Authorities under Point (1), supra. (a) The mere fact that there might be no liability on the part of the servant to the third party injured through his negligence is of no consequence. McGinnis v. Railroad Co., 200 Mo. 347, 98 S.W. 590; Schubert v. Schubert Wagon Co., supra. (b) Likewise, the mere fact that the master might have an action over against the servant is not material. Schubert v. Schubert Wagon Co., supra; Chase v. New Haven Waste Material Corp., supra. (3) The evidence established that the purpose of plaintiff's husband, in making the trip from St. Louis to Portage des Sioux and return, was to directly further the defendant's business, and directly within the scope of his employment, and even if it could be said that he had deviated from the scope of his employment in leaving the direct route between St. Louis and Portage des Sioux for the purpose of going to the Carton cottage, he had returned to that route previous to, and was within the scope of his employment at the time plaintiff was injured. Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Beem v. Lee Merc. Co., 85 S.W.2d 441; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Cable v. Johnson, 63 S.W.2d 433; Nagle v. Alberter, 53 S.W.2d 289; Schulte v. Grand Union T. & C. Co., 43 S.W.2d 832; Sawtell v. Stearn Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264; Anderson v. Nagel, 214 Mo.App. 134, 259 S.W. 858; La Bella v. S.W. Bell Tel. Co., 24 S.W.2d 1072; Edwards v. Rubin, 221 Mo.App. 246, 2 S.W.2d 205; McCarter v. Burger, 6 S.W.2d 979; State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638. (4) There was ample evidence in the record that plaintiff's husband had either express authority or implied authority, by reason of defendant's course of action and conduct both before and after plaintiff's injury, as its agent and servant and one of its principal officers, to extend to plaintiff an invitation which would create the status of invitor and invitee between defendant and plaintiff, respectively. Mason v. Down Town Garage Co., 53 S.W.2d 409; Gilliland v. Bondurant, 51 S.W.2d 559, affirmed Gilliland v. Bondurant, 59 S.W.2d 679; 2 C. J., p. 504, sec. 124; Cut Rate Woolen Co. v. U.S. Tailoring Co., 267 S.W. 969; St. Louis Gunning Adv. Co. v. Wanamaker, 115 Mo.App. 270, 90 S.W. 737.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

Daniel S. Mullally, plaintiff's husband, was employed by the defendant, Langenberg Brothers Grain Company a corporation. The company "furnished" him "an automobile in connection with the business." This automobile "was garaged and kept" at the home of Mr. and Mrs. Mullally in the city of St. Louis. On Saturday afternoon, September 12, 1931, they drove, in this company automobile, to a summer "lodge," near Portage de Sioux in St. Charles County, owned by their friends, and hosts on this occasion, Mr. and Mrs. Carton. The Mullallys spent Saturday afternoon and night and the following day (Sunday) as guests at the Carton lodge leaving there "about seven-thirty" Sunday evening to return to their home in St. Louis. Mr. Mullally was driving the automobile and at a point on Highway 94, in St. Charles County, where the highway crosses over a narrow bridge the automobile was driven against or struck "a fence" or guard "railing" at the side of the entrance to the bridge and Mrs. Mullally was injured. Alleging that at the time her husband was "operating" the automobile "as the agent and servant of the defendant," "within the line and scope of his employment for the defendant" and that he so negligently and carelessly, in several respects specified, operated the automobile as to cause it to strike the "fence or railing," she brought this action against the defendant company for damages for the injuries she sustained. Upon a trial in the Circuit Court of the City of St. Louis plaintiff had a verdict and judgment in the amount of $ 18,500 and the defendant appealed.

Appellant's first contention is, that as the wife could not maintain an action against the husband for damages on account of injuries caused by his negligence the same immunity applies to the husband's employer where the action against the employer as in this case, is based solely upon the doctrine of respondeat superior. Respondent concedes: "That, under the law of this State, as it exists at the present time, a wife cannot maintain a civil action against her husband for damages for personal injuries sustained by reason of his negligence," but says that does not preclude a recovery by the wife against the employer under the respondeat superior rule if the negligent act causing the injuries occurred while the husband was in the performance of the duties of his employment and acting in the course and within the scope of that employment. The rule in this State is, as stated, that "a wife cannot maintain a civil action against her husband for a personal tort." The reason and basis of the rule is fully stated in Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, and Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382. In the Willott case we held that a wife could not maintain a civil action against her husband for injuries sustained from the husband's negligent operation of an automobile. But we find no Missouri decision, and none is cited by the parties, ruling the question whether, alleging that she sustained personal injuries on account of the negligence of her husband while he was acting in the course and scope of his employment, a wife can maintain an action for damages against her husband's employer. There are two distinct lines of authority upon...