Riedel v. Atlas Van Lines, Inc.

• Decision Date: 27 January 1960
• Docket Number: No. 16264.,16264.
• Parties: Walter K. RIEDEL, Appellant, v. ATLAS VAN LINES, INC., and Knowles Storage & Moving Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

272 F.2d 901 (1959)

Walter K. RIEDEL, Appellant, v. ATLAS VAN LINES, INC., and Knowles Storage & Moving Company, Appellees.

No. 16264.

United States Court of Appeals Eighth Circuit.

December 30, 1959.

Rehearing Denied January 27, 1960.

Albert Thomson, Kansas City, Mo. (Tom J. Helms; Davis, Thomson, Van Dyke & Fairchild, Kansas City, Mo., on the brief), for appellant.

Glenn A. Burkart, Springfield, Mo. (Frank C. Mann, Springfield, Mo., Frank J. Stark, and John R. Caslavka, Kansas City, Mo., on the brief), for appellees.

Before WOODROUGH and MATTHES, Circuit Judges, and MICKELSON, District Judge.

MICKELSON, District Judge.

This action was brought by the plaintiff to recover damages for personal injuries sustained in an automobile collision which occurred on March 8, 1958. The parties will be referred to as they were designated in the trial court. Jurisdiction is based upon diversity of citizenship, and the amount involved exceeds the statutory requirements.

The plaintiff, Walter K. Riedel, was severely and permanently injured when his vehicle was struck head-on by an automobile driven by one James Harris in Vernon County, Missouri.

The defendants in the action were James Harris, hereinafter called Harris; Knowles Storage & Moving Company, a corporation, hereinafter called Knowles; and Atlas Van Lines, Inc., a corporation, hereinafter called Atlas.

The facts are as follows: Knowles owned a tractor-trailer unit, and entered into a lease agreement (hereinafter called the lease) with Atlas, the pertinent provisions of which will be hereinafter mentioned. Harris was furnished by Knowles as the driver of the unit and was on the Knowles payroll. The lease provided that Atlas was to pay rental to Knowles for the use of the unit according to the applicable rules and regulations of Atlas, and was to use the unit exclusively in the business and service of Atlas; the unit was to be operated solely and exclusively under the direction and control of Atlas; Knowles agreed to maintain the unit at its cost in good condition of repair and service, and agreed to pay all expenses of operation, including wages of the driver, taxes, repairs and other costs.

Harris was an hourly employee, paid by Knowles. When his unit broke down he received "lay over" time; i. e., he received eight hours' pay for six days while waiting, no pay for the seventh day, and the pay commenced again on the eighth day. Harris' duties as a Knowles employee were cross-country moving, loading and unloading of household goods and furniture, driving the unit and occasionally collecting C.O.D. charges. He was in sole charge of the unit.

The day before the accident here in question, Harris was driving the unit loaded with furniture near Rich Hill, Missouri. The motor "went out" and Harris "babied" it into the Tracy Brothers garage at Rich Hill. Tracy, the garage man, examined the engine and found that it needed a new shortblock. Harris called McGuire, a Knowles executive, who authorized the installation of a new shortblock. Tracy, with Harris accompanying him solely for the ride, drove to Kansas City, where Tracy purchased a new shortblock and returned at once to Rich Hill.

The following day, being the day of the collision here involved, Tracy started to install the shortblock but found that a valve seat in the head of the engine was loose. There was no equipment in Rich Hill with which a valve seat could be repaired. Repairs of this sort had to be made in Nevada, Missouri, a town 14 miles from Rich Hill.

On direct examination Tracy testified that Harris was in a hurry to get the unit on the road, and suggested that he borrow Tracy's car and take the head to Nevada while Tracy worked on the engine. On cross-examination Tracy testified that he told Harris that if Harris had a way to Nevada, he, Tracy, could get the job done quicker. Tracy then said, "there is my automobile". Harris did not request Tracy to loan him his car. Tracy told Harris where to go in Nevada, and what to have done there.

Harris testified that the trip to Nevada in Tracy's car was made at Tracy's suggestion, and that Tracy told him where to go and what to have done; that Tracy did not pay him or promise to pay him anything for making the trip; that while he was in Rich Hill he was receiving layover time pay from Knowles, and that the longer he stayed in Rich Hill the more money Knowles would owe him; and that Tracy was to receive the same amount for the repair of the truck whether it was finished one day or the next. He further testified that McGuire, the Knowles representive, did not tell him to participate in the repairs, did not tell him to make the trip to Nevada and did not know that he was making the trip; that he had never had any authority or instructions from Knowles to use any automobile other than the tractor-trailer unit furnished.

McGuire testified that the more tonnage hauled by Atlas the more Knowles received in compensation; that Harris was on the Knowles payroll at the time of the collision; that Harris had called him for instructions three times after the unit broke down. McGuire further testified that he told Harris, "to see that the job was done, have it done, yes"; that from the time of the breakdown until the time of the collision he was the only person who had authority as a representative of Knowles to tell Harris what to do; and that he did not authorize Harris to make the trip from Rich Hill to Nevada, and that he knew nothing about Harris making the trip until after the accident.

While Harris was returning from Nevada to Rich Hill in the Tracy automobile transporting the head of the Knowles tractor engine, the collision occurred as a result of which this suit was brought.

Prior to trial, Atlas moved for summary judgment under Rule 56, F.R.Civ. P., 28 U.S.C.A., based upon the pleadings, plaintiff's interrogatories to Atlas and its answers thereto, the lease, affidavits of Tracy and McGuire, and the deposition of Harris. The trial court granted Atlas' motion.

The case proceeded against Harris and Knowles, and at the close of all the evidence, defendant Knowles moved for a directed verdict in its favor, which the court granted. Judgment in its favor was entered accordingly.

It is from these judgments in favor of Atlas and Knowles that the plaintiff here appeals. The case against Harris alone was submitted to the jury and a verdict in favor of the plaintiff and against Harris in the amount of $85,000 was returned.

The points presented on this appeal are (1) is Knowles liable to plaintiff by reason of the negligence of its employee Harris; and (2) is Atlas liable to plaintiff by reason of the negligence of Harris.

The plaintiff contends that Knowles is liable for the reason that Harris was its servant or employee, and at the time of the accident was acting within the scope of his employment and authority; and that the fact that Harris was using an instrumentality (the Tracy car) different from that furnished (the tractor-trailer unit) by Knowles did not relieve Knowles from liability for Harris' negligence. He further contends that Atlas had the joint right to control Harris and is therefore responsible for torts committed by Harris in the performance of his work for Atlas.

In support of these contentions, plaintiff cites several cases from jurisdictions other than from the State of Missouri. In fact, he cites no Missouri cases, and we have found none...