Smith v. Fine

• Citation: 175 S.W.2d 761,351 Mo. 1179
• Decision Date: 06 December 1943
• Docket Number: 38589,38590
• Parties: Marjorie Smith, by her next friend, Helen Smith, v. Abraham Fine and National Clothing & Furniture Company, a Corporation, Appellants
• Court: United States State Supreme Court of Missouri

175 S.W.2d 761

351 Mo. 1179

Marjorie Smith, by her next friend, Helen Smith, v. Abraham Fine and National Clothing & Furniture Company, a Corporation, Appellants

Nos. 38589, 38590

Supreme Court of Missouri

December 6, 1943

Appeal from the Circuit Court of the City of St. Louis; Hon William H. Killoren, Judge.

Reversed and remanded.

Wilbur C. Schwartz and Victor Packman for National Clothing & Furniture Company, appellant; Orville Richardson of counsel.

(1) There was a total failure of proof that defendant could have stopped after imminent peril arose. This resulted from the fact that plaintiff was not in imminent peril until defendant turned from the eastbound tracks toward the north side of the street. Plaintiff failed to prove where defendant was when he turned, i. e., when her imminent peril arose. Therefore, she failed to prove that at that time he was far enough away from her to stop. Wilson v. Washington Flour Mill Co., 245 S.W. 205; Miller v. Wilson, 222 Mo.App. 1041 288 S.W. 997; Riggs v. K. C. Rys. Co., 220 S.W. 697; Baker v. Wood, 142 S.W.2d 83; Bauer v Wood, 154 S.W.2d 356; Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730. (2) Plaintiff was placed in imminent peril only after the defendant turned from the eastbound car tracks toward the wrong side of the street. There was no evidence that defendant thereafter could have avoided the collision. Ridge v. Jones, 335 Mo. 219 71 S.W.2d 713; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Burton v. Joyce, 22 S.W.2d 890; White v. Mo. Motors Distributing Co., 47 S.W.2d 245; Rafferty v. Levy, 153 S.W.2d 765; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Napier v. Ferris, 159 S.W.2d 364; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; Murray v. St. L. Wire & Iron Co., 238 S.W. 836. (3) By submitting her case to the jury under the humanitarian doctrine alone the plaintiff abandoned all other charges of negligence, and the case must be so regarded for the purpose of determining on appeal whether the trial court erroneously refused to direct a verdict for the defendants. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. (4) "A master is liable for the acts of his employee only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong at the time of the injury, and in respect of the very transaction out of which the injury arose." Plaintiff failed to do so, and hence the demurrer should have been sustained. Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; 39 C. J. 1268, sec. 1452; 35 Am. Jur., sec. 552, p. 985; Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240; Klotsch v. P. F. Collier & Son Corp., 340 Mo. 40, 159 S.W.2d 589. (5) The facts in the case affirmatively show that the relationship of master and servant did not exist between Fine and the company at the time of the accident, as he could choose his own medium of transportation, either in reporting to the company or in making a collection, and that he was not directed to make the trip which resulted in the accident, but, on the contrary, he was making it for his own convenience, without previous disclosure to the company, and that the company had no control over his physical conduct in the performance of required tasks, but merely prescribed the result, the means and the methods being within the discretion of Fine. Hence the demurrer should have been sustained. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Bass v. Kansas City Journal-Post Co., 347 Mo. 681, 148 S.W.2d 548; Douglas v. Natl. Life & Acc. Ins. Co., 155 S.W.2d 267; Pfeifer v. United Bakers Supply Co., 160 S.W.2d 795; Becker v. Donahue, 168 S.W.2d 960. (6) the test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. The evidence clearly showed that Fine was a "free agent" in selection of the means of transportation, and was entitled to discard his automobile and employ other means of conveyance, and that he was not directed to be at the time or place where the accident occurred in connection with any required duty for the company; that Fine was on a mission for his own convenience and he had no card assigned to him upon which to make a collection, and that his employer did not know of his alleged intention to effect, if possible, a collection before reporting to the company that morning. Hence the demurrer should have been sustained. Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; Reiling v. Missouri Ins. Co., 153 S.W.2d 79; Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240. (7) The court erred in giving instruction No. 1 because: Instruction 1 was broader than the evidence. There were no facts in evidence that the defendant Abraham Fine was the "servant" of this appellant at the very time of the accident and was acting in the "course" of his employment. The instruction submitted a legal conclusion and not a question of fact by asking the jury to determine whether Fine was a "servant." Furthermore, it failed to submit any facts from which the court could declare the legal conclusion that Fine was a "servant" at the time of the accident. Also see State ex rel. v. Ellison, 270 Mo. 645, 653, 195 S.W. 722. (8) The fourth paragraph of this instruction was not connected up with the third paragraph so as to confine the jury to a consideration of whether defendant was negligent in failing to stop after peril arose. This resulted in submitting primary negligence in the same instruction with secondary negligence, and the elimination of contributory negligence as a defense to the primary charge. At best the instruction was prejudicially confusing. White v. Kansas City Pub. Serv. Co., 347 Mo. 895, 149 S.W.2d 375, 140 S.W.2d 711; Mayfield v. Kansas City So. R.R. Co., 337 Mo. 79, 85 S.W.2d 116; Schipper v. Brashear Truck Co., 132 S.W.2d 993; Rodenkirch v. Nemnich, 168 S.W.2d 977. (9) The instruction was broader than the evidence and not justified by the evidence in that there was no proof that the failure of the defendant Abe Fine to stop his automobile was the proximate cause of the accident and there was no evidence that the defendant Abe Fine saw or could have seen plaintiff in a position of imminent peril in time to have stopped his car with safety to himself and his car and thereby have prevented the accident. See cases under Points (1) and (2); Also see State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (10) The court erred in permitting Fine to testify as to what his intentions were without restricting the scope of the testimony as being binding only on him. Admissions made by an agent after a transaction is closed are not binding on his principal, nor is the company bound by any declarations of his motives. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Barker v. Railway Co., 126 Mo. 143, 28 S.W. 866; State ex rel. Vesper Buick Automobile Co. v. Daues, 323 Mo. 388, 19 S.W.2d 700; 2 Chamberlayne on Evidence, sec. 1346, pp. 1708, 1711; 22 C. J., p. 349. (11) Moreover, Fine's testimony concerning his intentions were mere "conclusions" without probative force. Collins v. Leahy, 146 S.W.2d 609. (12) The court erred in permitting the plaintiff's mother, Mrs. Helen Smith, to testify that after the accident the defendant Fine told her not to worry about the hospital and medical expenses, that he would "take care of everything"; that he wanted the plaintiff to have "every kind of care" -- anything that was necessary, and offered to have her taken from the City Hospital to a private hospital. The evidence was prejudicial, immaterial, and should have been excluded on grounds of public policy. State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14; Waters v. Hays, 118 S.W.2d 39; Winter v. Van Blarcom, 258 Mo. 418, 167 S.W. 498; Ocean Acc. & Guarantee Corp. v. Mo. Engineering & Contracting Co., 63 S.W.2d 196. (13) The court erred in permitting plaintiff's mother, Mrs. Helen Smith, to testify that the defendant Fine pleaded with her to dismiss a charge of careless driving which had been placed against him. It was highly improper and prejudicial to prove that defendant had been arrested on a police court charge and it was immaterial whether he asked plaintiff's mother not to press that charge. State v. York, 142 S.W.2d 91; State v. Menz, 341 Mo. 74, 106 S.W.2d 440; Hoffman v. Graber, 153 S.W.2d 817; Marrah v. J. & R. Motor Supply Co., 165 S.W.2d 271; State v. Abel, 8 S.W.2d 55.

Wilbur C. Schwartz for Abraham Fine, appellant; Orville Richardson of counsel.

(1) The court erred in refusing to give and read to the jury instructions in the nature of demurrers to the evidence requested by both defendants at the close of the plaintiff's evidence and at the close of the whole case. There was a total failure of proof that defendant could have stopped after imminent peril arose. This resulted from the fact that plaintiff was not in imminent peril until defendant turned from the eastbound tracks toward the north side of the street. Plaintiff failed to prove where defendant was when he turned, i. e., when her imminent peril arose. Therefore, she failed to prove that at that time he was far enough away from her to stop. Sapp v. Carman Co., Inc., 95 S.W.2d 658; Bumgarner v. Eckstrum, 67 S.W.2d 520; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Wilson v Washington Flour Mill Co., 245 S.W. 205; Miller v. Wilson, 222 Mo.App. 1041, 288 S.W. 997; Riggs v. K. C. Rys. Co., 220 S.W. 697; Bibb v. Grady, 231 S.W. 1020; Baker v. Wood, 142 S.W.2d 83; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Bauer v....