Sharp v. W. & W. Trucking Co., 52600

• Citation: 421 S.W.2d 213
• Decision Date: 13 November 1967
• Docket Number: No. 52600,52600
• Court: United States State Supreme Court of Missouri
• Parties: Kenneth SHARP, Respondent, v. W. & W. TRUCKING COMPANY, Appellant.

Page 213

421 S.W.2d 213

Kenneth SHARP, Respondent, v. W. & W. TRUCKING COMPANY, Appellant.

No. 52600.

Supreme Court of Missouri, En Banc.

Nov. 13, 1967.

Rehearing Denied Dec. 11, 1967.

Clifford B. Smith, Kansas City, for respondent.

Harold T. VanDyke, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.

STORCKMAN, Judge.

This is a personal injury action wherein the jury returned a verdict for $13,000 against the defendants Cleodis Brown and W. & W. Trucking Company, a corporation. The defendant Brown did not appeal. The judgment against the defendant Trucking Company was appealed to the Kansas City Court of Appeals where it was affirmed. On order of this court, the cause was transferred pursuant to Art. 5, § 10, of the 1945 Constitution of Missouri, V.A.M.S. The appellant will for convenience sometimes be referred to as the Trucking Company, W. & W., or the defendant.

The primary contention on appeal is that the trial court erred in refusing to sustain the Trucking Company's motion for a directed verdict at the close of all the evidence. Additional contentions are that certain documentary evidence was erroneously admitted, that the court erred in giving oral instructions to the jury, and that the verdict is excessive. In determining whether a submissible case was made against the defendant Trucking Company, the evidence must be reviewed in the light most favorable to the plaintiff, and he is entitled to all reasonable inferences arising from the evidence. Gardner v. Simmons, Mo., 370 S.W.2d 359, 360(1).

Bowen Construction Company and Blue Valley Crushed Stone Company operated an asphalt plant and rock quarry at 1201 Manchester in Jackson County. These two corporations were owned by the same persons; they produced building and paving materials which were hauled by motor trucks from the plant to job sites of customers. In 1962 this hauling was done by A--1 Trucking Company, apparently a voluntary association of about 50 truckers. This arrangement proved unsatisfactory and early in 1963 the Bowen companies went back to dealing directly with individual truckers. The W. & W. Trucking Company was incorporated in October 1962 by Henry Woodward and Booker T. Washington. In March 1963 the Trucking Company made a verbal agreement with the Bowen companies to do their hauling and it was so performing on May 6, 1963, when the accident in question occurred. A written agreement between Bowen and the Trucking Company was not executed until June 19, 1963.

The agreement between Bowen and W. & W. Trucking Company granted the Trucking Company the sole and exclusive right to haul and deliver all the crushed stone, gravel, asphalt and other building materials shipped by motor truck in bulk from Bowen's premises at 1201 Manchester. The Trucking Company was required to own or hire and operate a sufficient number of trucks not exceeding 30 to do all of Bowen's hauling. The Trucking Company agreed to employ capable and competent men and equipment in good repair and Bowen had the right to reject any drivers or trucks unsatisfactory to it. The Trucking Company agreed to be liable for the value of any load it failed to deliver.

The defendant Cleodis Brown was the owner of two trucks, one of which he drove. He employed Ralph Murray to operate the other one. Brown had hauled Bowen construction materials as a member of A--1 Trucking Company and continued with W. & W. Company under an oral arrangement which will be more fully described later. On the morning of Monday, May 6, defendant Brown made some repairs to the truck operated by his employee Murray and was driving it from his home at 1620 Myrtle to the Bowen plant when he collided at 17th and Jackson Street with a motor vehicle driven by the plaintiff who was severely injured. Brown's defense was failure of his air brakes to operate when he undertook to stop at a traffic sign. The jury found against Brown on the issue and, since he did not appeal and the defendant W. & W. does not raise the question on appeal, we need not consider further the issue of Brown's negligence.

The question for determination on this appeal is the responsibility of W. & W. for Brown's acts. The pleadings and instructions designate the standards under which the plaintiff claims the Trucking Company is liable. The petition charges that Cleodis Brown at the time of the collision in question was operating his truck on the business of W. & W. Trucking Company and was acting within the scope of his employment as its agent. Instruction No. 3 directing a verdict against the Trucking Company required the jury to believe that 'the driver, CLEODIS BROWN, was operating his motor vehicle within the scope and course of his agency for W & W TRUCKING COMPANY at the time of the collision'. See MAI No. 18.01. Instruction No. 4 states that 'Acts were within the 'scope and course of agency' as that term is used in these instructions if: 1. they were performed by CLEODIS BROWN to serve the business of W & W TRUCKING COMPANY according to an express or implied agreement with W & W TRUCKING COMPANY, and 2. W & W TRUCKING COMPANY either controlled or had the right to control the physical conduct of CLEODIS BROWN.' See MAI No. 13.06. The instructions thus submit the issues of whether Brown was operating his vehicle within the scope of his agency and define acts within the scope and course of his agency as being performed 'to serve the business' of the Trucking Company 'according to an express or implied agreement' and that the Trucking Company 'either controlled or had the right to control' Brown's physical conduct.

The agreement between the Trucking Company and Brown for hauling Bowen's materials was wholly oral. Nevertheless, the trial court admitted in evidence over defendant's objection a form of written contract which purported to be a lease of an owner's truck to W. & W. for five years and an agreement by the owner to work for W. & W. for the same period of time. Brown refused to sign such a contract. The defendant Trucking Company contends the admission of this Exhibit 7 was erroneous in that it injected a collateral issue, was not a proper method of proving the agreement between Brown and the Trucking Company, and was misleading and confusing to the jury. The exhibit consists of three separate printed sheets or pages. One is a truck 'LEASE' to be signed by both parties whereby the trucker agrees to lease his truck to the Company for a period of five years in consideration of the payment by the Company of the sum of ninety percent of the gross revenue derived from the earnings of the truck during the term of the lease. The trucker agrees to store and care for the truck, to make necessary repairs, not to lease, rent, pledge or hypothecate the truck without the Company's written consent, that the earnings from the use of the truck shall be paid to the Company and it shall pay the trucker ninety percent thereof, and if the trucker breaches any of the terms or conditions of the lease he shall become liable to the Company for an amount equal to the average earnings of the truck for the previous twelve-months' period. The Company reserves an option to renew the lease for an additional term of five years. The Company can cancel the lease if the trucker breaches 'any of the terms and conditions of this lease or of the Rules and Regulations attached hereto and made a part hereof.'

There were 14 items on the second sheet of the exhibit entitled 'RULES, REGULATIONS AND PENALTIES'. Their full text is not important. To indicate their general nature, it is sufficient to say that the trucker agrees that all drivers and owners shall observe yard and lot courtesy, cooperate, be union members, maintain neat and clean personal appearance, keep trucks in good working condition, refrain from the use of alcohol or drugs on the job, obey orders, not indulge in loud, boisterous or profane conduct while on the job, observe traffic laws and ordinances, complete all jobs started, and carry liability insurance for personal injury and property damage in an approved company in the amount required by state law. The third sheet of the agreement is designed for signing by the trucker alone. By its terms he agrees to work exclusively for the Company for a period of five years 'at the election' of the Company for any of its signed contract jobs and that his truck is 'leased and firmly bound' to the Company for any of its signed contract jobs. The trucker further agrees that all of his earnings and the earnings of his truck shall be paid directly to the Company of which the Company would retain ten percent, and that he will report at all times his places of employment to the Company.

The defendant Cleodis Brown, called as a plaintiff's witness and examined solely as to the nature of his agreement with W. & W. Trucking Company, identified the form of unsigned contracts, Exhibit 7, and testified he did not sign any such contract or any working agreement. He summed up his agreements and reasons for them as follows: 'I agreed to W. & W. that my truck would be on the job at all times whenever they needed a truck, I would abide by their rules and regulations. I didn't sign a five-year contract, because I didn't want the truck tied up five years. I am new at the trucking business, I didn't know exactly how it would last--in other words, W. & W. didn't exactly have a signed contract at that time themselves, I didn't want to sign with them, because they wasn't signed.' Although Brown's agreement was entirely oral, it was repeatedly referred to in the trial court as a 'lease agreement' and plaintiff's counsel was permitted to interrogate him about each provision of Exhibit 7 and whether he agreed to it. The exhibit was passed to the jury for their examination despite the fact that it contained irrelevant and incompetent matters, such as the requirement that the truckers carry liability insurance for personal injuries and property...