Rubinelli v. Union Electric Light & Power Co.

• Decision Date: 15 May 1945
• Docket Number: No. 26799.,26799.
• Citation: 187 S.W.2d 762
• Parties: RUBINELLI v. UNION ELECTRIC LIGHT & POWER CO. et al.
• Court: Missouri Court of Appeals

187 S.W.2d 762

RUBINELLI v. UNION ELECTRIC LIGHT & POWER CO. et al.

No. 26799.

St. Louis Court of Appeals. Missouri.

May 15, 1945.

Appeal from St. Louis Circuit Court; W. K. Koerner, Judge.

"Not to be reported in State Reports."

Action by Peter Rubinelli against the Union Electric Light & Power Company and another to recover for damages to plaintiff's automobile. From a judgment for plaintiff against both defendants, the named defendant alone appeals.

Reversed.

Moser, Marsalek & Dearing and Granville L. Gamblin, all of St. Louis, for appellant.

Gustav Vahlkamp and Louis H. Steffen, both of St. Louis, for respondent.

ANDERSON, Judge.

This is an action to recover for damages to plaintiff's automobile. The action was brought against appellant Union Electric Light & Power Company and Columbus L. Williams. The petition alleged that plaintiff's damage resulted from the negligence of defendant Williams, who at the time was acting as the agent and servant of appellant. The trial below resulted in a verdict and judgment for plaintiff and against both defendants.

Appellant assigns as error the refusal of its requested instruction in the nature of a demurrer to the evidence, and in support of this assignment contends that under the evidence it was not liable for the acts of Williams at the time plaintiff was injured.

The parties have filed in this court an abbreviated or partial transcript of the evidence, in narrative form, under Section 135 of the Code of Civil Procedure, Laws of 1943, p. 393, Mo.R.S.A. § 847.135. That portion of the evidence relevant to the issues on this appeal is as follows:

Columbus L. Williams, a codefendant in the trial court, was called as a witness for and in behalf of the plaintiff, and testified substantially as follows:

On March 24, 1939, he was engaged in the selling of electrical appliances to the retail trade for the defendant Union Electric Light & Power Company, and had been so engaged for several years. His income was $75 per month and commissions on the sales of electrical appliances, He received no other remuneration from the Union Electric Light & Power Company. He was free to make the sales to any purchasers he could find anywhere in the City of St. Louis, or St. Louis County, Missouri.

He obtained his sales leads on his own initiative and the Union Electric Light & Power Company gave him leads which it had received from other sources. He was not required by Union Electric Light & Power Company to perform any other services for it.

His sales agreement with the Union Electric Light & Power Company was oral, and provided that he could go anywhere in St. Louis or St. Louis County at any time he saw fit to do so in connection with the sale of appliances.

He received no directions or instructions from the Union Electric Light & Power Company as to the means or mode of transportation to be used by him in performing his work, but was free to, and did, select his own means and mode of transportation. The Union Electric Light & Power Company paid no portion of his transportation expenses and made him no allowances therefor.

He further testified that the Union Electric Light & Power Company exercised no control as to where he would go in St. Louis or St. Louis County in soliciting or consummating sales of appliances and gave him no directions or instructions or when such calls should be made; but that he was required to report to his immediate field supervisor of sales by telephone about every hour to inform the supervisor where he then was.

He further testified that he was not required to keep any particular hours, but was required to devote his entire time to the sale of appliances, and sometimes interviewed prospects at night and often took them to the salesroom of Union Electric Light & Power Company for demonstrations after the working hours of the prospects.

As a part of the service he rendered his customers he also attended to procuring the execution of wiring contracts, and would do anything else necessary to complete the sale; that the larger his volume of sales, the greater his income.

He further testified that he was using his automobile on March 24, 1939, and about 11:50 a.m., parked it going east, on the south side of Easton Avenue, in front of number 6210, for the purpose of calling on the Schuerman Building and Realty Company, to get a wiring agreement signed for one of his customers, M. F. O'Brien of 2729 Harry's Lane, to whom he had sold an electric range.

Upon his return to his automobile he drove from the curb and after he had turned the front end of his car out into the main traveled portion of the south side of the street, he heard the noise of another automobile which was traveling east on the south side of the street. Therefore, he immediately applied his brakes and stopped, and about that time an automobile driven by plaintiff ran into his automobile....