Smoot v. Marks

• Citation: 564 S.W.2d 231
• Decision Date: 24 January 1978
• Docket Number: No. 38184,38184
• Parties: Willie W. SMOOT and Leaverta Curry and Blanche Elizabeth Smoot and Bobbie Pettigrew, Plaintiffs-Appellants, v. Eddie MARKS and Supreme Cab Company, a corporation, Defendants-Respondents. . Louis District, En Banc
• Court: Court of Appeal of Missouri (US)

Page 231

564 S.W.2d 231

Willie W. SMOOT and Leaverta Curry and Blanche Elizabeth

Smoot and Bobbie Pettigrew, Plaintiffs-Appellants, v. Eddie MARKS and Supreme Cab Company, a corporation,

Defendants-Respondents.

No. 38184.

Missouri Court of Appeals, St. Louis District, En Banc.

Jan. 24, 1978.

Motion for Rehearing and/or Transfer Denied March 10, 1978.

Steven I. Toybes, Fox, Goldblatt & Singer, Inc., St. Louis, for plaintiffs-appellants.

Morris Shenker, Cordell Siegel, St. Louis, for defendants-respondents.

SIMEONE, Chief Judge.

This is an appeal by plaintiffs-appellants from a judgment of the Circuit Court of the City of St. Louis which set aside jury verdicts in favor of the plaintiffs and which sustained the respondent-Supreme Cab Company's motion for judgment notwithstanding the verdicts. Rule 72.01(b). We issued our divisional opinion on September 27, 1977, reversing the judgment of the circuit court. Supreme Cab filed its motion for rehearing. We sustained the motion for rehearing and heard arguments before an expanded panel. We now withdraw our divisional opinion and, for reasons hereinafter stated, we adhere to the conclusion reached in our divisional opinion. We reverse the trial court's judgment and remand the cause with instructions to reinstate the verdicts of the jury and enter judgments in accordance therewith.

The facts giving rise to this litigation follow.

On August 24, 1974, Mr. Willie Smoot was operating his automobile northwardly on Grand Avenue in the City of St. Louis at or near Hebert Street. His mother, Blanche Elizabeth Smoot, his grandmother, Leaverta Curry, and his girlfriend, Bobbie Pettigrew, were passengers in the automobile. As Mr. Smoot stopped behind a bus he was struck from the rear by an automobile bearing the insignia Supreme Cab or Supreme Cab Co. and driven by Mr. Eddie Marks. The taxi pushed Mr. Smoot's automobile into the bus. Mr. Smoot and his passengers were injured. All four plaintiffs filed suit against the driver of the taxi, Mr. Eddie Marks, and the Supreme Cab Company seeking damages. Trial was held in 1976. All the witnesses Smoot, Mrs. Smoot, Mrs. Curry and Bobbie Pettigrew testified that the taxi was marked with the words "Supreme Cab Co." on the side of the door and on the dome light on top of the cab. Bobbie Pettigrew testified that the number 135 was painted on the cab. Mr. Smoot did not talk to the driver of the vehicle, Mr. Eddie Marks, but did talk to the police. The driver of the taxi "appeared to be intoxicated." "He was running off at the mouth and he was kind of staggering a little bit, smelled like he was ." According to Miss Pettigrew, the man "did a whole lot of lipping but finally told me that he didn't have anything to say, he'd call his supervisor." According to Miss Pettigrew, Mr. Marks would not give any information to Mr. Smoot so she called the police. At the scene, Marks "clowned a whole lot . . . he told me (Pettigrew) to get out of his face . . . ." Miss Pettigrew said:

"This man came from Supreme Cab. Miss Curry and Blanche went on to the hospital first. We followed later. This man went with us to the hospital, the supervisor. I forget what his name is. And he was there when we checked, you know, at the emergency room and stuff like this and he wanted to make a settlement then." ¹

Bobbie Pettigrew further testified that Marks told her he was going to call the supervisor and

"(t)he man came. He showed a badge, you know."

. . . (H)e flashed something, that he was the agent from Supreme Cab. He identified himself being I say this: He identified himself. He gave me his name and something else but I filed this accident report . . . when he seen the car and everything and seen that when we went to the hospital Willie's mother was hospitalized he wanted to fix Willie's car, you know. He said he wanted to do the fair thing that was right."

There was no objection to this testimony.

At trial the defense presented two witnesses Florence Brodkin, vice president of Supreme Cab and head bookkeeper, and Mr. Doyne Beckley, license inspection supervisor for the City of St. Louis. The thrust of their testimony was that certain procedures are required before a taxicab is considered in service for operation as a taxicab, and that this particular taxicab operated by Mr. Eddie Marks on August 24, 1974 was out of service and did not obtain an in-service status until September, 1974.

Florence Brodkin testified that none of the cabs are actually owned by the company but by the driver or "somebody who hires the driver." She explained the procedure for driving a taxicab for Supreme Cab Company: (1) the applicant must apply for a "spot" there are only forty-five openings; (2) the taxi must be inspected and a Board of Public Service sticker obtained indicating the taxi was capable of being driven; (3) the sticker would be affixed to the rear window of the cab and then other licensing was required; (4) additional licensing procedures have to be complied with; (5) a $150.00 fee must be paid by the applicant to Supreme Cab Co. which in turn furnishes dispatchers and service to send drivers out to a particular location and "supervision, any normal help;" and (6) after the fee is paid, the City must issue a monthly insurance Board of Public Service sticker to be put on the windshield and "it's only issued if that cab is eligible to drive that month." A driver would not go to the company to have the cab painted with an insignia. She testified that on August 21 (24?) Supreme Co. cab 135 was not in service. She explained exhibit A the company's allocation of the 45 cabs allotted to Supreme Cab from July 1974 through June 1975. The exhibit showed the numbers of the cabs, the names of the drivers, the fee paid for each and other data. Under the notation cab 135 the name C. Williams ² was crossed out and the name Marks inserted. ³ As to the months of July and August the exhibit shows cab 135 as "Out" indicating out of service although there is a notation that $49.00 had been paid on August 21, 1974 as a deposit. According to Mrs. Brodkin, the cab went in service in September. According to her, Marks would have been "authorized to operate as an agent of Supreme Cab" when "he paid the balance of that sticker money and we issued him the sticker to be affixed to the front of the cab." The balance of the $150.00 was paid on September 3 as shown by a receipt. She testified that, prior to September 3, Mr. Marks was not a driver "for Supreme Cab Company." As to a supervisor being called, the supervisor would "simply go out and investigate what had happened." And, when a supervisor went out when a call came in, it would not indicate that the person calling was or was not "an employee or agent of the Supreme Cab Company." On cross-examination she did not know, without checking the records, whether there was an "accident report" of the incident on August 24, but when she went over the records prior to coming to court she did not "discover" any report.

Mr. Doyne Beckley also explained the procedure required to place a taxicab in service in the City. According to his records, the cab owned by Marks was previously out of service and titled in another person. He reiterated that if the cab does not have a monthly insurance sticker it is not allowed to go out on the street. No monthly insurance sticker had been issued for the month of August. The insurance sticker, introduced as an exhibit, had not been issued to cab 135. The net effect of his testimony was that the cab was not in service in July and August.

On cross-examination he admitted that taxicabs "will be on the street and not properly licensed." In such instances Mr. Beckley contacts the police department for enforcement.

At the conclusion of the defendant's case, a statement of Mr. Marks taken before a court reporter and by an employee of Supreme Cab two days after the incident was introduced over objection as an "admission against interest." In the statement, Mr. Marks stated that he was not employed but had a Pontiac with "Supreme Cab" on it, that he intended to go "into service as an operator" of the cab on September 1. He admitted having an accident on August 24, 1974, and that "(a) little kid named John" was in the automobile at the time and that he was "going to cut some grass." A lawnmower was in the back. He stated that he was on his own personal business. He recognized that to put a cab on the Supreme stand it would cost $150.00 a month and that he paid $49.00 and would pay the balance on August 31.

Mr. Marks did not testify or appear at the trial. He could not be located.

Defendant's motion for a directed verdict was overruled.

The court instructed the jury in separate instructions that a verdict could be rendered for each plaintiff if the jury believed that (1) Mr. Marks was an "employee" of Supreme Cab Company and was operating "within the scope and course of his employment," ⁴ (2) Mr. Marks' automobile came into collision with the rear of plaintiff's automobile, (3) Mr. Marks was negligent, and (4) as a direct result of such negligence, plaintiffs were injured.

The jury returned a verdict for each of the four plaintiffs in the amount of $1,000.00 each against both Marks and Supreme Cab Company. In proper time Supreme Cab moved for judgment in accordance with its motion for a directed verdict, contending that there was no evidence to prove that Mr. Marks was operating the vehicle "within the scope and course of his employment or agency for Supreme Cab Company," and that the evidence proved that cab 135 was not in service during the month of August, 1974.

On May 14, 1976, the trial court sustained the motion notwithstanding the verdict and the plaintiffs duly appealed.

On this appeal plaintiffs contend the court erred in sustaining the motion to set aside the verdict because a fact question relating to whether Mr. Marks was an agent of Supreme Cab at the time of the incident was raised. Appellan...