Pillsbury Flour Mills Co. v. Miller

• Decision Date: 16 June 1941
• Docket Number: No. 11944-11948.,11944-11948.
• Citation: 121 F.2d 297
• Parties: PILLSBURY FLOUR MILLS CO. v. MILLER (two cases). SAME v. KAMMEYER (two cases). SAME v. KAMMEYER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F.2d 297 (1941)

PILLSBURY FLOUR MILLS CO. v. MILLER (two cases). SAME v. KAMMEYER (two cases). SAME v. KAMMEYER et al.

Nos. 11944-11948.

Circuit Court of Appeals, Eighth Circuit.

June 16, 1941.

Paul Barnett, of Kansas City, Mo. (Emil B. Corzine, of Kansas City, Mo., H. P. Tudor, of St. Louis, Mo., and Watson, Ess, Groner, Barnett & Whittaker, of Kansas City, Mo., on the brief), for appellant.

John B. Gage, of Kansas City, Mo. (Alfred B. Page, of Kansas City, Mo., Ike Skelton of Lexington, Mo., and Gage, Hillix, Hodges & Cowherd, of Kansas City, Mo., on the brief), for appellees.

Before SANBORN and JOHNSEN, Circuit Judges, and COLLET, District Judge.

COLLET, District Judge.

These five consolidated actions grow out of an automobile accident which occurred on April 30, 1938.

Mrs. Saverna Miller, Raymond Kammeyer and Eleanor Kammeyer were occupants of an automobile when it was struck by another automobile operated by Albert A. Meinershagen, Jr. The latter was instantly killed. Mrs. Miller, Raymond and Eleanor Kammeyer were seriously injured. All recovered judgments against appellant for damages on account of their injuries. Appellee George Miller, the husband of Saverna Miller, obtained judgment for damages for the loss of his wife's services and consortium, medical expenses and property damage. Arthur and Lena Kammeyer are the father and mother of Arthur and Eleanor Kammeyer, and obtained judgment for damages for the loss of services of their minor children and the expense of medical services for them. Each of the actions sought damages in excess of $3,000. The plaintiffs are residents of Missouri. The defendant is a non-resident corporation. The aggregate amount of the judgments was $29,000.

Meinershagen was appellant's salesman and was operating appellant's automobile at the time of the accident. His negligence is admitted. The questions presented are:

(1) Whether there was sufficient evidence that Meinershagen at the time of the accident was acting within the scope and in the course of his employment by appellant, and

(2) Whether error was committed by the District Court in the admission and exclusion of evidence.

Meinershagen had been in appellant's employ for approximately two years prior to his death. His duties consisted of calling upon customers for the purpose of selling appellant's products. His compensation was a fixed salary. An automobile was furnished by appellant for his use, appellant paying the expense of its operation. By reason of the extent of his service with appellant, Meinershagen was entitled to a vacation of two weeks in April, 1938. He discussed his vacation with appellant's sales manager, stating that he intended to go to Colorado and New Mexico. On Friday, April 15, 1938, he wrote appellant's office manager the following letter:

"4/15/38 "Mr. Chappell:

"I am not leaving till Monday evening and will give you a brief outline Sunday in a letter as to anything that might come up on my territory. If there is anything you might want to talk to me about you can call me at home Monday. I might be in the office Monday evening.

"Yours truly "Al "Speedometer reading is 11512 mi"

It was customary for appellant's salesmen to use the automobiles assigned to them for their personal use, but when they did so they paid appellant three cents per mile therefor. Meinershagen was to use the automobile assigned to him on his vacation, hence the postcript giving the speedometer reading. The following day, after the above letter was written, Saturday, April 16th, Meinershagen was in Kansas City. His fiancee, who was to accompany him on his vacation trip, lived there. Appellant's branch office was also located there. During the morning he visited appellant's office and talked with the sales manager, leaving when the office closed at 1:30 P. M. He did not communicate further with the office before leaving on his vacation. The sales manager testified that Meinershagen's vacation was to begin Monday, April 18, 1938, and continue for two weeks.

With his fiancee accompanying him he drove to New Mexico and Texas, visiting his brother at Albuquerque and her brother at Tyler, Texas. They left Tyler with her brother accompanying them at 1:00 P. M., Friday, April 29th, and drove to Wichita, Kansas, arriving there at midnight. Meinershagen left his fiancee and her brother at a bus station in Wichita to take a bus at 12:40 A. M. to Kingman, Kansas, where the latter were to visit relatives. Kingman is west and Kansas City is east of Wichita. Meinershagen continued on to Kansas City. He arrived at his fiancee's sister's apartment in Kansas City about 6:00 or 6:30 A. M., Saturday morning, where he left some articles belonging to his fiancee. He remained there only five or ten minutes. At that time he apparently was very tired, he had not shaved, his clothes were mussed and his hair not combed. The accident occurred at about 7:30 A. M., one and one-half miles south of Higginsville, Missouri, and approximately fifty miles east of Kansas City. Meinershagen was traveling toward Higginsville at a speed estimated at eighty miles per hour. Mrs. Miller saw Meinershagen's car approaching and, seeing it gradually veering across the paved highway, drove her car onto the right shoulder of the highway. Meinershagen's car continued to veer to the left and without diminishing its speed struck the Miller car "head on", with terrific force. As noted, Meinershagen was instantly killed. When his car was reached by the first to arrive at the scene of the accident, he was cleanly shaved, had on a business suit, white shirt and tie. Between the divided front seats of his car was found an imitation leather or leather zipper brief case which appeared to have something in it. The contents were not examined. He had no brief case with him on his vacation trip. Appellant had equipped him with a brief case described as rather bulky and with no zipper. The brief case furnished by appellant was returned to its office two or three weeks after the accident by a relative of Meinershagen and then contained a sales manual, order book and code book.

Higginsville was in Meinershagen's territory. It was his custom to go there at intervals of two or three weeks, usually on Saturday, when he would call on his customers, check their stock and take orders for appellant's products. His father lived in Higginsville and was one of Meinershagen's best customers. Frequently, he spent Sunday there and although St. Joseph, Missouri, was his headquarters he referred to Higginsville as his home. He had, previous to his employment with appellant, been in business there. He had no regular hours of employment and could begin and end his day's work as he chose. He was supposed to work on Saturday morning. Appellant's employees were divided into groups and to each group was assigned a quota of business for the year. If the quota was reached each employee in the group received a bonus in salary. On April 30th, the day of the accident, Meinershagen's group had one month in which to reach its quota. Meinershagen was required to make a written report daily of his business activities when working. His last report was for Friday, April 15th. Appellant's Kansas City office usually opened at about 8:30 A. M.

It is appellant's contention that any presumption that Meinershagen was acting in the course of and within the scope of his employment which arose from the fact that he was in the general employ of appellant and was operating appellant's automobile, disappeared upon proof that Meinershagen was on his vacation at that time.

Whether the fact, if it be a fact, that Meinershagen's vacation period had not yet expired at the time of the accident, is sufficient to destroy the presumption noted, will become purely abstract in this case if, as appellees contend, all of the facts in evidence when viewed in an aspect most favorable to the jury's conclusion, were sufficient to support that conclusion without the aid of the presumption. We, therefore, pass to the consideration of the latter question.

Were the facts proven sufficient to justify the inference that Meinershagen was acting within the scope and within the course of his employment at the time of the accident? We glean from the testimony of his customers at Higginsville that Meinershagen was interested in his work as a salesman of appellant's products. He discussed nothing else with those customers when calling on them and always appeared to enjoy seeing them. He belonged to a group of employees who would profit by the attainment of a fixed quota of sales within a pre-determined period which would end in thirty days after the date of the accident. He left Tyler, Texas, many hundreds of miles distant from Kansas City, at 1:00 P. M., Friday, the day before the accident and, with the assistance of his fiancee's brother drove constantly until he reached the scene of the accident, stopping only for refreshments once in Oklahoma, pausing to leave his fiancee and her brother at Wichita and once again briefly at Kansas City. He had been away from his work for approximately two weeks and had not called on his customers at Higginsville within that time. It was his custom and duty to call on them at intervals of two or three weeks. No one had done that for him while he was away. There is no suggestion that it was necessary that he arrive at his father's home which he called his home at an hour that required such traveling speed and constancy. At some place between the apartment of his fiancee's sister and the scene of the accident and between 6:00 or 6:30 and 7:30 A. M. he evidently shaved hurriedly, changed his clothes and picked up a brief case. He was usually careful about his appearance but again there is no intimation that there was any especial reason for those acts if his only purpose in reaching Higginsville early Saturday morning was to visit his parents. He drove rapidly from Kansas City toward Higginsville...