Rainwater v. Wallace

• Decision Date: 01 March 1943
• Docket Number: No. 20150.,20150.
• Parties: RAINWATER v. WALLACE et al. (EMPLOYERS MUT. LIABILITY INS. CO., Garnishee).
• Court: Missouri Court of Appeals

169 S.W.2d 450

RAINWATER v. WALLACE et al. (EMPLOYERS MUT. LIABILITY INS. CO., Garnishee).

No. 20150.

Kansas City Court of Appeals. Missouri.

March 1, 1943.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports".

Action by William M. Rainwater against Paul Wallace and another for injuries sustained in an automobile accident. Plaintiff obtained judgment against named defendant. Plaintiff instituted garnishment proceeding against the Employers Mutual Liability Insurance Company, in aid of writ of execution sued out on the judgment. From an adverse judgment, the garnishee appeals.

Affirmed.

Arthur R. Wolfe and James R. Sullivan, both of Kansas City, for garnishee, appellant.

William A. Pevehouse and Cope & Hadsell, all of Kansas City, for respondent.

BLAND, Judge.

This is a garnishment proceeding in aid of a writ of execution sued out upon a judgment for damages for personal injuries, which judgment was in favor of William M. Rainwater, plaintiff, and against Paul Wallace, defendant. There was a verdict and judgment in favor of plaintiff, and against the garnishee, in the sum of $1484.65, and the garnishee has appealed.

The facts show that, on the afternoon of Sunday, July 17, 1938, defendant, Wallace, while using an automobile truck, owned by one Norman Klein, had a collision with an automobile driven by the plaintiff, Rainwater. Plaintiff brought suit for damages for personal injuries, which he sustained in the collision, against Wallace and Klein, alleging that Wallace was acting in the line of his duties and within the scope of his employment as the agent, servant and employee of the defendant, Klein, in driving the truck in question. The court directed a verdict in favor of defendant, Klein, resulting in plaintiff taking an involuntary nonsuit as to him. It is admitted that the verdict was so directed because plaintiff failed to introduce any evidence tending to show that the relationship of respondeat superior existed between Wallace and Klein at the time of the collision and in connection therewith. Thereafter, plaintiff moved the court to set aside the nonsuit and his motion was overruled. He took no appeal. The jury returned a verdict against Wallace in the sum of $1250, no part of which has ever been paid. Plaintiff sued out a writ of execution upon the judgment, as before stated, and prosecutes this garnishment proceeding against the garnishee, the Employers Mutual Liability Insurance Company, claiming that Wallace, in connection with the collision, was covered by the omnibus clause of a policy of liability insurance, which the garnishee had issued to Klein engaged in the tree surgery business.

In this (garnishment) proceeding the deposition of Wallace was taken in the State of California, and was introduced in evidence by the plaintiff.

He testified that Klein was in the tree surgery business in Kansas City, operating under the name of Mid-West Tree Experts; that this business consisted of planting and maintaining trees, cabling, bracing, feeding and cavity work, removing dead trees or hazardous limbs and "keeping in shape" tree shrubbery, etc.; that Wallace was employed in Kansas City by Klein as the latter's foreman and superintendent; that he was so employed at the time of the collision in question; that the vehicle involved in the collision was a half ton truck; that this vehicle was used in the business of Klein in connection with the solicitation of business, getting to and from work, hauling such tools, equipment and material as were needed; that the tools and equipment were kept at Wallace's home in Kansas City; that the truck was also garaged at the home of Wallace for his use and convenience in getting to and from work and so that he could load the necessary tools in the morning before going to work; that Wallace received 60 cents per hour for his labor, plus an allowance of 10 cents per hour to cover the oil and gasoline that he was required to purchase for the truck; that if he made a continuous trip of 25 miles, or more, Klein paid him 4 cents per mile additional for such a trip; that part of the work of the witness was to solicit new business, on which he received a commission of 5%. Wallace was available 24 hours a day seven days a week. He testified that practically on every Sunday he performed work in some capacity for Klein in connection with the latter's business.

Klein testified that, on occasions, he permitted Wallace to use the truck on the latter's own affairs.

One of the main points in dispute in the case is whether Wallace was on a mission in connection with the tree surgery business for Klein at the time of the collision, or, upon a private mission of his own.

It appears that one Prescott, a real estate agent connected with the Swope Park Realty Company, had been talking with Wallace about buying or renting a house, and that Prescott had given Wallace the names of some persons who owned houses, listed for sale or rent with the Swope Park Realty Company, with a view that possibly Wallace could get some tree surgery work from the owners; that the owners were to be contacted in reference to the matter; that Prescott, in promoting his real estate sales, caused to be set out in his yard a number of small elm trees and, on occasions, he would give a few of these trees to persons who purchased property from him.

Wallace testified that, at the time of the collision, he and his wife were on their way, in Klein's truck, to the office of the Swope Park Realty Company, for the purpose of obtaining a list of houses for his inspection with the view of buying, and that he was also on his way to see Prescott with reference to inspecting the elm trees in Prescott's yard to determine if they were large enough to move; that he had planned on moving some of them for Prescott if they were large enough; that Prescott had also given him the address of two properties that were under the former's supervision and management and that it was his intention to inspect on this trip the trees at these addresses. At places in his testimony the witness expressed some uncertainty as to whether it was his intention to inspect trees at these properties, stating that it had been two years since the accident and his memory was not clear in reference to the matter; that "I don't believe that I had any other definite appointment. I think at that late hour of the day that I couldn't have gone any place else" than to the office of the Swope Park Realty Company and to see Prescott. However, he testified, definitely, as to two of the purposes he had in mind, that is, obtaining a list of houses from the Swope Park Realty Company that were available for sale, and to see Prescott about the trees in the latter's yard; that "I might have caught him (Prescott) at the office of the Swope Park Realty Company, or he might have been home, I had these two places in mind, to catch him at one place or the other"; that he did not recall whether he was on his way to Prescott's house or the Swope Park Realty Company at the time of the collision (the office of the realty company and Prescott's house were but two blocks apart), but that it was his intention on this trip to get the list of houses for sale from the Swope Park Realty Company and to see Prescott about the trees in the latter's yard; that he did not recall definitely as to which place he was going first whether to Prescott's house or the office of the realty company but thought it was the former.

He further testified that the collision occurred about 4:30 in the afternoon; that about noon of that day he had called at Klein's house with the truck and delivered to him some work orders that had been procured during the previous week; that he usually handed his orders in every Saturday or Sunday; that on the day in question "We discussed the work for the week ending the Saturday before this, and the possibility of landing some particular job in question, that might have been anybody's job. It was of a business nature"; that he did not recall telling Klein that he intended to look at some trees that afternoon; that he thought he told Klein that he was going over to the Swope Park Realty Company that afternoon for the purpose of looking at a house; that "I do not recall of telling him anything definitely that I intended to do other than to look for a house".

The testimony of Prescott corroborated that of Wallace, to some extent, in relation to the character of errand Wallace was making the afternoon in question as related to inspecting trees.

The policy in question provided: "Name of Insured Norman Klein d/b as Midwest Tree Experts. * * * The purpose for which the automobile is to be used is: ( ) Pleasure and Business; (X) Commercial. * * * Definition of `Insured' The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial', each as defined herein, and provided further that the actual use is with the permission of the named insured. * * * Policy Period, Territory, Purposes of Use This policy applies only to accidents which occur and to direct losses to the property insured which are sustained during the policy period, while the automobile * * * is owned, maintained and used for the purposes stated as applicable thereto in the declaration. (a) The term `pleasure and business' is defined as personal, pleasure, family and business use. (b) The term `commercial' is defined as the transportation or delivery of goods, merchandise, or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in the declaration".

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