Rosser v. Standard Mill. Co.

• Decision Date: 14 April 1958
• Docket Number: No. 1,No. 46412,46412,1
• Citation: 312 S.W.2d 106
• Parties: Horton ROSSER and Lawson Fore, Plaintiffs-Respondents, v. STANDARD MILLING COMPANY, a Corporation, Defendant-Appellant, and Edward F. Doyle, Defendant
• Court: Missouri Supreme Court

Page 106

312 S.W.2d 106

Horton ROSSER and Lawson Fore, Plaintiffs-Respondents, v. STANDARD MILLING COMPANY, a Corporation, Defendant-Appellant, and Edward F. Doyle, Defendant.

No. 46412.

Supreme Court of Missouri, Division No. 1.

April 14, 1958.

Culver, Phillip, Kaufmann & Smith by W. J. Sherwood, W. H. Utz, Jr., St. Joseph, for defendant-appellant.

Price Shoemaker, Elmer E. Reital, St. Joseph, for plaintiffs-respondents.

HOLMAN, Commissioner.

At about 5:30 p. m. on September 17, 1954, plaintiffs received personal injuries and damage to their property when the car in which they were riding was struck by a truck being driven by defendant Edward F. Doyle. In this action against Doyle and the truck owner, Standard Milling Company, plaintiff Horton Rosser obtained a verdict for $2,965.50 and plaintiff Lawson Fore a verdict for $7,000. The verdicts were against both defendants. Doyle did not appeal. The corporate defendant appealed from the ensuing judgments to the Kansas City Court of Appeals but that court transferred the appeal here as it was of the view that the amount in dispute exceeded $7,500. We have appellate jurisdiction for the reason stated by the court of appeals. Keely v. Arkansas Motor Freight Lines, Mo.Sup., 278 S.W.2d 765.

Plaintiffs' recovery against the appellant was based upon the doctrine of respondeat superior, the petition alleging 'that at all times hereinafter mentioned Edward F. Doyle was the agent, servant and employee of defendant Standard Milling Company and, at the time of the collision hereinafter described, said Edward F. Doyle was engaged in the business of defendant Standard Milling Company, and at said time was acting within the scope of his employment.'

The instant collision occurred on U. S. Highway 36 about one mile west of Troy, Kansas. Plaintiffs were both professional rodeo contestants. On the afternoon in question they were en route from Topeka, Kansas, to Chillicothe, Missouri. The car in which they were riding was owned by Rosser and was being driven at the time by Lawson Fore. Attached to the car was Rosser's horse trailer with his horse in it.

As plaintiffs proceeded eastwardly their car was following a large automobile transport truck. As they neared the point of collision Fore saw the truck Doyle was driving approaching from the east. According to the testimony of Mr. Fore, the westbound truck veered across the road toward the south and sideswiped the transport. Following that impact the truck bounced back to the north and then returned to the south side of the road, striking the left side of the Rosser car. As a result of the collision, the Rosser car went over a 15-foot embankment and came to rest on its top. Plaintiffs got out of the car and were able to pull the horse out of the overturned trailer. They returned to the highway about five or ten minutes after the collision.

Frank Carter, undersheriff of Doniphan County, Kansas, testified that shortly before the instant collision he had received a call advising him that 'a truck was taking too much of the highway' and he started out to find it; that when about one-half mile from the scene of the occurrence in question he received a radio call advising him of a 'wreck just west of Troy'; that upon arrival he found a truck 'crossways of the road on its side,' and a Dodge car with trailer attached 'on its top over the grade'; a transport truck was parked 200 feet beyond; that he talked with Doyle whom he described as 'drunk' and, following that conversation, took him to jail. The view we take of this case makes it unnecessary to further detail plaintiffs' evidence except for the testimony of undersheriff Carter and plaintiff Fore as to statements made by Doyle at the scene of the collision and later when he was in jail. The first contention briefed by the appellant is that the court erred in admitting testimony (over its repeated objections) as to those out-of-court statements of Doyle.

The testimony of Carter which is complained of herein (objections omitted) is as follows:

'Q. Did you have occasion to talk to Doyle while he was in jail? A. Yes, sir.

'Q. Tell us just what he told you about this accident. A. You want when I talked to him at the scene?

'Q. Both at the scene and later on. A. I asked whose truck it was, where he lived, and he didn't have a driver's license and I asked how come he was driving that truck without a license. He said, 'I don't usually drive it, but I had to have some braces for a crib--.' I said, 'Where is the braces? They aren't on the truck,' and he said, 'They couldn't make them this evening, and I got to go back after them in a couple of days, had them ordered.'

'Q. Did he tell you where he had been? A. Been to St. Joseph.

'Q. Did he tell you where he intended to get the braces? A. No, I don't believe he did. He said they had to make them was the reason he didn't have them.

'Q. Is that what he told you at the scene? A. That is right.

'Q. Now then, did you have occasion to talk to him along the same lines at a later time? A. Oh, yes--talked to him every day [in jail].

'Q. Did he tell you at any other time about the mission he had in Missouri? A. He also told me he had a couple of teeth pulled while he was over there and that is the reason he drinks.'

In rebuttal, Lawson Fore testified (objections omitted) as follows:

'Q. Mr. Fore, did you talk to Mr. Doyle at the scene and immediately after this accident occurred? A. I talked to him as soon as we got the horse out of the trailer and could get onto the pavement.

'Q. Did you make any inquiry from Mr. Doyle as to how or why he happened to be using this truck? A. I said, 'How come you are using the company truck?' and he said he had been to St. Joseph after some parts.'

The various objections interposed to the foregoing testimony were that the statements of Doyle were hearsay, not a part of the res gestae, and an attempt to prove the fact and scope of agency and the scope of employment by out-of-court statements of the agent.

In connection with the foregoing it should be noted that it appeared from answers of appellant to interrogations that on September 17, 1954, Standard Milling Company owned the truck in question, and that Doyle was employed by said company as manager of its grain elevator at Hiawatha, Kansas, and his duties 'consisted of receiving, shipping, storing and merchandising of grain, and improving and maintaining buildings and equipment,' and that the 'truck was used for moving grain on premises from flat storage facilities to dump pit and in moving railroad cars into position for loading grain. Also used in picking up supplies for elevator. Edward F. Doyle was authorized to use truck in going to and from work in Hiawatha, Kansas.'

Mr. Doyle did not testify or appear at the trial. Defendants, however, presented the testimony of Harry Rosenberger, a utility worker at the elevator (the only employee other than Doyle), who stated that Mr. Doyle left the elevator about 9:30 on the morning of September 17, and never returned. On cross-examination he stated that on one occasion Doyle drove the truck to Falls City, Nebraska, and on another to Atchison, Kansas, but the witness was not permitted to state whether those trips were on company or personal business; that on one or two occasions Doyle had driven the truck to St. Joseph for lumber.

Max G. Strauss testified that he was assistant manager of appellant's 'country elevator department' and that the Hiawatha mill was under his supervision; that the rods in a bin snapped in July 1954, and they were replaced in August 1954; that he was in Hiawatha on September 16 (the day before the casualty) and instructed Mr. Doyle not to use the truck for any personal purpose with the exception of going back and forth to work in Hiawatha; that on the 16th he had gone over the whole plant and the work and there was no business of the Milling Company that would have taken Doyle to St. Joseph on the 17th. He also stated that he had not heard of the trips to Falls City and Atchison until he had heard Mr. Rosenberger testify to that effect, but that the company had not had any business for Mr. Doyle to transact in those cities. Mr. Strauss stated further that he had given Mr. Doyle permission to go to St. Joseph in the early part of 1954 for some lumber that could not be obtained in Hiawatha. The witness also stated that Mr. Doyle was discharged immediately after receipt of a report of the collision.

W. E. Jamieson of the Jamieson Machine Company, St. Joseph, testified that his company had shipped some 28-foot rods and nuts to Standard Milling Company on August 17, 1954, by Ragland Truck Lines but that nothing further had been sold to that company until they shipped a screw conveyer in December 1954.

We will now consider appellant's contention of error in the admission of Doyle's statements to Carter and Fore. The parties have apparently briefed the case upon the assumption that the law of Missouri would control in determining that question, as well as the contention, hereinafter discussed, that plaintiffs did not make a submissible case as to appellant. We will adopt that assumption, observing, in that connection, that ordinarily 'the law of the forum controls as to * * * the admissibility of the evidence; and the sufficiency of the evidence to go to the jury.' 15 C.J.S. Conflict of Laws Sec. 22i, p. 955. It has long been the rule in this state that 'neither the fact nor scope of agency can be established by the mere out of court declarations to the alleged agent.' State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42, 45. In the instant case it was admitted that appellant owned the truck in question and that Doyle was employed as manager of its Hiawatha elevator. It was admitted in Doyle's answer that he was driving the truck at the time of the collision and such was tacitly conceded by appellant. In that situation the foregoing rule may be applicable in a general...