Ross v. St. Louis Dairy Co.

• Decision Date: 17 November 1936
• Docket Number: No. 33572.,33572.
• Citation: 98 S.W.2d 717
• Parties: MARY ROSS, Appellant, v. ST. LOUIS DAIRY COMPANY, a Corporation, ET AL.
• Court: Missouri Supreme Court

98 S.W.2d 717

MARY ROSS, Appellant, v. ST. LOUIS DAIRY COMPANY, a Corporation, ET AL.

No. 33572.

Supreme Court of Missouri.

Division Two, November 17, 1936.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

AFFIRMED.

Roger D. Moore and F. Warner Fischer for appellant.

(1) There was evidence sufficient to require a submission of the case to the jury showing that plaintiff was injured as alleged in her second amended petition as a proximate result of the negligence of the driver of the milk truck referred to in the evidence. Cox v. Reynolds, 18 S.W. (2d) 575. (2) There was evidence sufficient to require submission of the case to the jury tending to show that the truck in question was being operated by the St. Louis Dairy Company at the time of the collision in which plaintiff was injured. Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361; Fleischmann v. Polar Wave Ice Co., 148 Mo. App. 133, 127 S.W. 665; O'Malley v. Heman Const. Co., 255 Mo. 391, 164 S.W. 566; Hall v. Ry. Co., 124 Mo. App. 661, 101 S.W. 1137; Wiedeman v. St. L. Taxicab Co., 182 Mo. App. 523, 165 S.W. 1105; Rockwell v. Standard Stamping Co., 210 Mo. App. 168, 241 S.W. 979; Hampe v. Versen, 224 Mo. App. 1144, 32 S.W. (2d) 793; Gannon v. Laclede Gas Light Co., 145 Mo. 517, 46 S.W. 968, 47 S.W. 907, 43 L.R.A. 505; Lafferty v. K.C. Casualty Co., 229 S.W. 750; Robb v. Bartels, 263 S.W. 1013; Staley v. Lawler, 224 Mo. App. 884, 27 S.W. (2d) 1039; Fuqua v. Lumberman's Supply Co., 76 S.W. (2d) 719; Burgess v. Garvin, 219 Mo. App. 173, 272 S.W. 112; Gordner v. St. L. Screw Co., 201 Mo. App. 349, 210 S.W. 930; Karguth v. Donk Bros. Coal & Coke Co., 299 Mo. 580, 253 S.W. 367. (3) Respondents, as the members of the last board of directors of the St. Louis Dairy Company, which afterwards changed its name to the Cabkay Dairy Company, are liable for plaintiff's injuries to the extent of the assets of said company coming into their hands as its liquidating trustees. Secs. 9755, 9760, R.S. 1919, Secs. 4561, 4566, R.S. 1929; Nudelman v. Thimbles, Inc., 225 Mo. App. 533, 40 S.W. (2d) 475; Eberle v. Koplar, 85 S.W. (2d) 919; Yerxa, Andrews & Thurston, Inc., v. Viviano, 44 S.W. (2d) 98.

Carter & Jones and James E. Garstang for respondents.

(1) The court did not err in directing a verdict for the defendants because it was conclusively shown that the cause of action was barred by the Statute of Limitations of the State of Illinois which, under the provisions of the laws of Missouri, governed. Secs. 79, 80, 81, 82, 84, 85, 87, 89, 90, 91, Chap. 32, pp. 748, 749, Cahill's Ill. R.S. 1931; Sec. 869, R.S. 1929; Frizell Grain & Supply Co. v. Ry. Co., 201 S.W. 78; McCoy v. Ry. Co., 134 Mo. App. 622; Deal v. Ry. Co., 176 Mo. App. 8; Secs. 15, 22, Ch. 83, p. 1812, Cahill's Ill. R.S. 1931; Garth v. Robards, 20 Mo. 523; Hussman v. Druege, 181 S.W. 118; State ex rel. v. Allen, 124 Mo. App. 465; Thornton v. Nome & Sinook Co., 26 Ill. App. 76; Pennsylvania v. Sloan, 1 Ill. App. 364; Hubbard v. U.S. Mortgage Co., 14 Ill. App. 40; Sidway v. Land Co., 187 Mo. 649; Pierce v. Sou. Pac. Ry. Co., 40 L.R.A. 350; Tollivar v. Richmond Cement Works, 152 N.C. 656, 68 S.E. 200; Turcott v. Ry. Co., 101 Tenn. 102, 45 S.W. 1067, 40 L.R.A. 768; Colonial Mortgage Co. v. N.Y. Thresher Co., 14 N.D. 147, 103 N.W. 915, 70 L.R.A. 814; St. L., etc., Ry. Co. v. Taliaferro, 67 Okla. 37, 168 Pac. 788; Consolidated Textile Corp. v. Gregory, 289 U.S. 85, 53 Sup. Ct. 539; L.R.A. 1915C, p. 544, notes in connection with Hale v. Ry. Co., 39 Okla. 192, 134 Pac. 948. (2) The evidence established conclusively that the truck in question was owned and operated by Barnhart-Niehaus & Company, and that said Barnhart-Niehaus & Company was an independent contractor. Therefore, a submissible case was not made against respondent defendants. Caul v. Peck Dry Goods Co., 32 S.W. (2d) 758, 326 Mo. 870; Flori v. Dolph, 192 S.W. 949; Igoe v. Alford, 69 S.W. (2d) 317, 228 Mo. App. 457; Mattocks v. Emerson Drug Co., 33 S.W. (2d) 142. (3) The presumption of ownership, agency and operation, if any, arising out of the fact that the name "St. Louis Dairy Company" was printed upon the sides of the truck in question took flight in view of positive evidence of ownership, operation and control of independent contractor. Murphy v. Tumbrink, 25 S.W. (2d) 133; State ex rel. Kurz v. Bland, 333 Mo. 946.

COOLEY, C.

Action for damages for personal injuries sustained by appellant, plaintiff below, while riding in an automobile driven by her husband when the automobile collided with a large milk truck. At the close of all the evidence the trial court gave a peremptory instruction directing a verdict for respondents, defendants below, whereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside. She duly filed such motion, which was overruled, and she appealed.

The suit was brought against the St. Louis Dairy Company, a Missouri corporation, two Delaware corporations and five individuals who composed the last board of directors of said St. Louis Dairy Company, which, after the accident which gave rise to this action and before suit was filed had, by appropriate action, first changed its corporate name to Cabkay Dairy Company and then procured a decree in the St. Louis Circuit Court dissolving the corporation and appointing the members of the last board of directors trustees to wind up its affairs. Before trial plaintiff dismissed as to the two foreign corporations and, upon suggestion of the dissolution of the Missouri corporation, dismissed as to it also. One of the individual defendants died before trial, and the cause proceeded against the four surviving board members, as trustees of the dissolved corporation, viz., John P. Cabanne, Robert L. Kayser, Edwin F. Hagemann and Edwin A. Kayser, who were thus left as the only defendants in the case and who are the respondents herein. The question of their liability depends upon whether or not St. Louis Dairy Company, as it was named at the time of plaintiff's injury, was liable. It is not contended they or any of them are liable personally.

Plaintiff was injured about nine-thirty P.M., September 26, 1926. Suit was filed September 25, 1931. The collision occurred on the "Free Bridge" across the Mississippi River between St. Louis, Missouri, and East St. Louis, Illinois, but on the Illinois side, so that the Illinois Statutes of Limitations govern on that question. Respondents pleaded those statutes and contend that under them and our Section 869, Revised Statutes 1929 (Mo. Stat. Ann., p. 1158), plaintiff's action is barred. They also contend that the driver of the truck was not the employee, servant or agent of St. Louis Dairy Company but of an independent contractor, Bernhardt, Niehaus & Company, wherefore St. Louis Dairy Company was not liable for his alleged negligence. No point is made on this appeal that the truck driver was not guilty of actionable negligence or that plaintiff is precluded from recovery because of contributory negligence, so the evidence relating to those questions need not be detailed. While the trial court did not indicate the ground upon which it gave the peremptory instruction directing a verdict for defendants, the latter assume, and we think rightly, that it was either because in the opinion of the court the action was barred by the applicable Statutes of Limitations or because the evidence conclusively established that the truck involved in the collision was owned and operated by an independent contractor, not the servant or agent of St. Louis Dairy Company, or perhaps for both said reasons.

On the master and servant issue the evidence was as follows: — Plaintiff's husband testified that at the scene of the accident and immediately after the accident he "looked the truck over and saw the lettering on it `St. Louis Dairy Company'" and that "There was not any name of any other company on there that I saw." He also testified that immediately behind the truck that collided with his car there was another truck with the same name printed on it and no other name. This second truck does not appear to have figured in the accident. Mr. Ross was going east and the truck west. Just ahead of Ross a Mr. Dauer was driving east in an automobile. Dauer testified that as he met and passed the truck the latter was so far over to its left that he, Dauer, had barely room to "skimp through" between the truck and the bridge girders, and that as he thus passed the truck he "got a glimpse of the lettering `St. Louis Dairy Company' on the truck;" that he saw no other lettering upon it. Such testimony of those two witnesses constituted all of plaintiff's evidence in chief on this subject.

At the close of plaintiff's evidence defendants requested an instruction in the nature of a demurrer to the evidence, which was at that time refused. They then introduced evidence which, on this issue, was as follows:

Edwin F. Hagemann, secretary-treasurer of St. Louis Dairy Company (which for convenience we may hereafter refer to as the Dairy Company) at the time of and long prior to the accident, testified that during all of the year 1926 Bernhardt, Niehaus & Company, of Collinsville, Illinois, did the hauling of milk for the Dairy Company from the latter's plant at Highland, Illinois (known as the pasteurizing and bottling plant), to St. Louis, Missouri, under a written contract, which was introduced in evidence. It may be here stated that the truck herein involved was at the time of the accident carrying a load of milk from the Dairy Company's plant at Highland, Illinois, to St. Louis, Missouri. Hagemann testified that the Dairy Company had no property right or ownership in any of the trucks used by Bernhardt, Niehaus & Company in the hauling of milk and did not employ any of the drivers. He described the trucks thus:

"They are large, enclosed, ice box body trucks — they are refrigerator bodies and the big bodies, for advertising...