Riggs v. Higgins

• Decision Date: 05 June 1937
• Citation: 106 S.W.2d 1,341 Mo. 1
• Parties: Nina Riggs v. S. M. Higgins et al., Metropolitan Life Insurance Company, Appellant
• Court: Missouri Supreme Court

106 S.W.2d 1

341 Mo. 1

Nina Riggs v. S. M. Higgins et al., Metropolitan Life Insurance Company, Appellant

Supreme Court of Missouri

June 5, 1937

Appeal from Newton Circuit Court; Hon. E. E. Smith, Judge;

Reversed.

A E. Spencer, A. E. Spencer, Jr., and Mosman, Rogers Bell & Buzard for appellant.

Under the evidence adduced the driver of the automobile, Higgins on his journey from Neosho to Joplin and at the time and place of the accident, was not a servant of the appellant, acting within the scope of his employment, in respect to the transaction out of which the injury arose. Higgins was not performing any of the regular or ordinary duties of his employment and was outside the territory where he worked. He had no duty that day except to attend the meeting. He was on his way from his home in Neosho to Joplin to be present. Until he reached the meeting place he was sole master of his action and owed no duty to appellant. Appellant's only requirement of Higgins, on the day in question, was that he be present in Joplin to attend a meeting of similar agents, and the question of how and when he would travel, what route he would pursue and all the details of the journey were for Higgins to determine as he saw fit. Appellant was only concerned in the resulting presence of Higgins at the meeting. Higgins was driving his own automobile, and on the journey appellant had or exercised no right or power of control over Higgins in his operation of the machine. Hence, appellant cannot properly be held liable for any negligence on the part of Higgins in driving his automobile, and no submissible case was made against it. Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296; McCarthy v. Souther, 83 N.H. 29, 137 A. 445; Wesolowski v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 A. 166; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77; Pyyny v. Loose-Wiles Biscuit Co., 263 Mass. 574, 149 N.E. 541; Child's Case, 174 N.E. 211; Wescott v. Young, 275 Mass. 82, 175 N.E. 153; McCraner v. Nunn, 129 Kan. 802, 284 P. 603; Dohner v. Winfield Wholesale Grocery Co., 116 Kan. 237, 226 P. 767; Kyle v. Postal Telegraph-Cable Co., 118 Kan. 300, 235 P. 116; James v. Tobin-Sutton Co., 182 Wis. 36, 195 N.W. 848; Nagy v. Kangesser, 32 Ohio App. 527, 168 N.E. 517; Nussbaum v. Traung Label & Lithograph Co., 46 Cal.App. 561, 189 P. 728; Mauchle v. Panama-Pacific Int. Exposition Co., 37 Cal.App. 715, 174 P. 400; Stockwell v. Morris, 22 P.2d 189; Nettleship v. Shipman, 161 Wash. 292, 296 P. 1056; Adams v. Tuxedo Land Co., 267 P. 926; 39 C. J., p. 1268, sec. 1452.

Karl Greenhaw and Ruark & Ruark for respondent.

It is difficult to understand how, where as here, a servant is engaged in doing the very thing in and about his master's business that he has been directly commanded to do; and doing it in the usual, customary and only practical way, it can be said to have been outside the scope of his authority. 39 C. J., p. 277, sec. 402; Foose v. Waverly Coal Co., 239 S.W. 874; Gordner v. St. Louis Screw Co., 201 Mo.App. 349. Manifestly Higgins was either the servant of the appellant or an independent contractor. Usually an independent contractor is one who has a regular employment or trade, which he offers to the public. Semper v. American Press, 217 Mo.App. 55; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Aubuchon v. Security Const. Co., 291 S.W. 189. The burden was upon the defendant to show that Higgins was an independent contractor. Plaintiff made a prima facie case by proof that Higgins was employed by the appellant. 39 C. J., p. 1356, sec. 1582; Hoelker v. American Press, 296 S.W. 1011; Knoche v. Pratt, 194 Mo.App. 305; Margulis v. Natl. Enameling Co., 23 S.W.2d 1051; Aubuchon v. Security Const. Co., 291 S.W. 187; Shamp v. Lambert, 142 Mo.App. 575; Garretzen v. Duenckel, 50 Mo. 112. It makes no difference that the automobile belonged to the servant, if it was used in the master's business with the master's knowledge and consent. Schmitt v. American Press, 42 S.W.2d 972; Burgess v. Garven, 219 Mo.App. 162; Gordner v. St. Louis Screw Co., 201 Mo.App. 349. The right -- the power of control -- has always been held to be the most important distinction between a servant and an independent contractor. And where, as here, the servant is using his automobile in the employer's business, with the knowledge and consent of the employer, the employer is liable for the injuries caused by the negligent operation of the automobile; and the question of whether the employee is a servant or independent contractor is for the jury. Following are Missouri authorities on this point: Margulis v. Natl. Enameling Co., 23 S.W.2d 1049, 324 Mo. 420; Burgess v. Garven, 219 Mo.App. 162; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Semper v. American Press, 217 Mo.App. 55; Schmitt v. American Press, 42 S.W.2d 969; Gordner v. St. Louis Screw Co., 201 Mo.App. 349; Koelling v. Union Fuel Co., 267 S.W. 34; Brunk v. Hamilton Shoe Co., 66 S.W.2d 903; Thomassen v. West St. Louis Water Co., 312 Mo. 150; Maher v. Donk Bros. Coal Co., 20 S.W.2d 888, 323 Mo. 799; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969; Borah v. Zoellner Motor Car Co., 257 S.W. 145; Karguth v. Donk Bros. Coal Co., 299 Mo. 580; Mattocks v. Emmerson Drug Co., 33 S.W.2d 142; Cholet v. Phillips Pet. Co., 71 S.W.2d 799; Berry on Automobiles (6 Ed.), p. 1146, sec. 1385; 2 Bashfield's Cyclopedia on Automobiles, p. 1357; Fuqua v. Lumberman's Supply Co., 76 S.W.2d 715; 18 R. C. L., sec. 247; 39 C. J., p. 71, sec. 60, p. 1332, sec. 1525; 6 Labatt on Master & Servant, p. 6888, sec. 2282; 14 R. C. L., sec. 3, p. 67. But if Higgins had been an independent contractor or an agent acting outside the scope of his authority, then the defendant insurance company, by assuming control over him and in giving him orders and directions, became liable for his acts in following those directions. Klaber v. Fidelity Bldg. Co., 19 S.W.2d 762; Lawhon v. St. Joe Laboratories, 252 S.W. 44; Clayton v. Wells, 26 S.W.2d 969; 39 C. J., p. 1344, sec. 1560.

Collet, J. Hays, C. J., Tipton, Leedy and Ellison, JJ., concur: Gantt and Frank, JJ., dissent.

OPINION

COLLET

This case comes to the writer on reassignment. Respondent, plaintiff below, brought this action against S M. Higgins and the Metropolitan Life Insurance Company to recover damages for the death of her husband, alleged to have been caused by the negligence of Higgins. Respondent obtained a judgment for $ 10,000 against both defendants. The Metropolitan Life Insurance Company appealed.

Higgins was employed by appellant as its agent. His duties were to make collections of insurance premiums due the company and to solicit policies of insurance. That work was confined to a definite, assigned territory consisting of a part of the city of Neosho and some outlying contiguous territory. Higgins owned an automobile which he used in going from place to place within his territory in the discharge of his duties.

Appellant had an established custom of calling all of its agents in the so-called Joplin district in to Joplin for instructions. These meetings were held almost every week. Notices of these meetings were given the agents in advance and they were expected to attend. Higgins was notified that such a meeting was to be held at Joplin on the morning of December 5, 1931. Joplin was not in the territory assigned to Higgins but the latter territory was within the Joplin district. On the morning of December 5, 1931, Higgins and his wife and daughter left Neosho in Higgins' automobile. Higgins intended to attend the meeting at Joplin that morning. His wife and daughter were to go on to Webb City in the automobile to visit and later in the day return to Joplin, meet Higgins and all three return to Neosho. On the way to Joplin Higgins' automobile struck respondent's husband, inflicting injuries from which he died. Higgins was driving the automobile. The circumstances surrounding the accident need not be related since appellant concedes for the purposes of this appeal, that there was evidence that Higgins negligently operated his automobile and thereby struck and killed respondent's husband and that the latter was free from negligence.

The facts incident to the relationship between Higgins and appellant are stated in appellant's brief as follows:

"The primary question is the relation between Higgins, the driver of his car, and the appellant, on the former's journey from Neosho to Joplin and at the time and place of the accident. All the evidence as to this, as well as Higgins' general relation to appellant, comes from two witnesses, viz.: Darnell, a witness for plaintiff, and Higgins, a defendant. There is no conflict in their testimony. Each was an agent of appellant, assigned to specific territory in Newton County. Their duties were to go over their respective territories and there to collect premiums payable weekly or monthly as they became due and there to try to sell insurance. They deposited their collections in a Neosho bank, to the credit of the manager of the Joplin office, and a duplicate deposit slip was sent to that office. The agents were paid on a commission basis. The territory given Higgins was a part of Neosho and along the highway to Seneca on the west and the highway to Goodman to the south. He could not work in any other territory. When he took an application for insurance he had the application signed, and it was his duty to get it to the Joplin office either by mail, by the manager or assistant manager when he was in Neosho, as they were frequently, or in person as he might determine. Higgins reported to the Joplin office by mail about every day and so received instructions from that office.

"When Higgins was employed he had a car; it was necessary for him...