Snowwhite v. Met. Life Ins. Co.
| Decision Date | 02 May 1939 |
| Docket Number | No. 35595.,35595. |
| Citation | 127 S.W.2d 718 |
| Parties | ALLACE SNOWWHITE v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, and MARTIN NUSHY, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
REVERSED AND REMANDED FOR RETRIAL AS TO THE DEFENDANT AGENT.
Louis R. Weiss for Martin Nushy; Mosman, Rogers, Bell & Buzard for Metropolitan Life Insurance Company.
(1) The court erred in granting plaintiff a new trial against defendant, Metropolitan Life Insurance Company, for the reason that the evidence wholly failed to show that, at the time of the accident, Nushy was engaged in any service for that defendant or was in any way subject to its control and, therefore, the peremptory instruction offered by Metropolitan Life Insurance Company at the close of all evidence should have been given, and as the verdict of the jury was for the right party, it should be reinstated and judgment should be entered thereon, regardless of any alleged errors in instructions. Vert v. Met. Life Ins. Co., 117 S.W. (2d) 252; Riggs v. Higgins, 341 Mo. 1, 106 S.W. (2d) 1; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W. (2d) 717; State ex rel. v. Hostetter, 115 S.W. (2d) 802; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Wesolowski v. Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 Atl. 166; American Natl. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W. (2d) 370; American Savs. Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115; Amer. Law Institute, Restatement of Law of Agency, secs. 220, 250, 251; Stockwell v. Morris, 46 Wyo. 1, 22 Pac. (2d) 191; Barnes v. Real Silk Hosiery Mills, 108 S.W. (2d) 58. (2) The court erred in granting plaintiff a new trial because of the giving of Instruction L, for the reason that the instruction was not erroneous. Nushy was charged with a "positive wrong," namely, the failure to use the "highest degree of care." R.S. 1929, sec. 7775. If the evidence was evenly balanced and the jury could not determine whether or not the charge of negligence against defendants was true, then the verdict should have been for defendants. (3) The plaintiff's evidence was not sufficient to create an inference of negligence against Nushy. Therefore, the peremptory instruction which he offered should have been given, and the verdict being for the right party, the court erred in granting the plaintiff a new trial. The plaintiff's case rested upon speculation and conjecture and it should not have been submitted to the jury, Scotten v. Met. Life Ins. Co., 336 Mo. 724, 81 S.W. (2d) 313; Watkins v. Bird-Sykes-Bunker Co., 322 Mo. 830, 16 S.W. (2d) 38; Keim v. Blackburn, 280 S.W. 1046; State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690; Knight v. Wabash Ry. Co., 85 S.W. (2d) 399.
C.S. Walden, Frank D. Rader, Paul S. Conwell and Leo A. Spalding for respondent.
Action to recover for personal injury, in an amount within the jurisdiction of this court. Verdict went for defendants. A new trial was granted and defendants appealed. We might state that plaintiff, respondent here, has not favored us with a brief.
Defendant, Nushy, owned and was driving the car that struck plaintiff. He, at the time, represented defendant, insurance company, and had assigned to him a certain area or territory, in Kansas City, Mo., called an industrial debit. It was his duty to call weekly upon those holding industrial policies in his debit and collect premiums thereon. Also, he took applications for industrial policies and for ordinary life insurance policies. For collecting premiums on his debit policies he received 15 per cent of amount collected, and when ordinary life insurance policies were issued on applications he secured, he received a commission on the premiums paid like the ordinary life insurance agent. The defendant, insurance company, knew that Nushy had a car, and he had the company's consent to use the car in working his debit, but the company had nothing to do with the car's upkeep, and paid nothing on its operation. Also, it appears that the defendant, insurance company, had no control over Nushy as to the manner in which he worked his debit, or when he worked it, except it was his duty to work it weekly.
Plaintiff proceeded on the theory that, at the time of her injury, Nushy was on a mission for the insurance company, and that the facts were such that both Nushy and the insurance company were liable.
The case went to the jury solely on the humanitarian doctrine. A new trial was granted on the theory that error was committed in giving Instruction L (hereinafter set out) on behalf of defendants. Defendants contend that Instruction L was proper, but if not, they say that the matter is of no consequence because plaintiff failed to make a submissible case, and that the court should have given their separate demurrers to the evidence at the close of the whole case.
Defendants have filed a joint brief, but most of it is taken up with the contention that plaintiff failed to make a submissible case against the defendant, insurance company, and we first dispose of that contention.
Plaintiff was struck and injured on December 22, 1932, about 6 P.M., and the case was tried for the second time on March 2, 1936. According to the defendant, Nushy, on the day of plaintiff's injury, he resided in north Kansas City, and quit work in his debit about 4 P.M. After quitting work, he went home, changed clothes, and had supper. He then went from his home to a beauty shop in Kansas City to see Miss Vera Melching about getting a package, which he says was a cake. He says that he was intending to take this cake to Miss Opal Denton at 3641 Central Street, and with whom he had been "going out," and who had asked him to pick up the package "and bring it out there some time that day." Nushy testified that, when his car struck plaintiff, he was on his way to deliver the cake, and was not on any mission for the defendant, insurance company. Nushy's debit was a certain area which included Broadway from the south side of Fourteenth Street on the north to the north side of Seventeenth Street on the south. His car, going south, struck plaintiff on Broadway, and a short distance south of 1316. The place was not in the debit territory, but was near thereto. In an endeavor to show that Nushy, at the time of plaintiff's injury, was on such a mission for the insurance company as would make the company liable for his negligence, plaintiff showed by Mrs. Manning, who resided, at the time, at 1640 Broadway, and in the debit, that Nushy had an appointment with her to be at her home at 7:30 P.M. on day of plaintiff's injury, and that the purpose of the appointment was either to deliver a policy on her life to her, or to take her application for a policy, and Mrs. Manning testified that Nushy came to her house on the day of plaintiff's injury at about 7:30 P.M.
Nushy testified that about 7:30 P.M., and after the accident, he, pursuant to a previous engagement, did call upon Mrs. Manning at 1640 Broadway. Nushy also was not clear as to whether he delivered a policy to Mrs. Manning or took her application. He also said that, when he left home, he intended to call upon Mrs. Manning before he returned. It also appears that he did not deliver the cake that night. Nushy's deposition was taken, and plaintiff introduced a part of this deposition. In the deposition Nushy testified that, after he left Mrs. Manning's he made a collection in his debit that night about 8 o'clock, and then "went straight home." William L. Magoon, manager, in Kansas City, of defendant, insurance company, and a witness for plaintiff, testified that a collection made at night, as it is claimed Nushy made the collection from Mrs. Large, "was within the scope" of Nushy's duty. At the trial Nushy testified that he had checked up on the collection from Mrs. Large and found that he did not make that collection on the night of plaintiff's injury.
[1] It appears that the Manning policy was, or was to be, the ordinary insurance policy, and would not be for attention in Nushy's debit. Under the ruling in Vert v. Metropolitan Life Ins. Co. (enbanc), 342 Mo. 629, 117 S.W. (2d) 252, the defendant, insurance company, would not be liable for any negligence on the part of Nushy while on his way to see Mrs. Manning about an ordinary life insurance policy. In ruling the Vert case, the court said (342 Mo. 629, 117 S.W. (2d) l.c. 256):
"The decisive point is that Crowe (the agent) was not on or returning from a trip which the company had directed him to make, nor which was made for the purpose of performing any duty the company required him to do. The trip was made to carry on another kind of activity which was clearly separate and apart from his regular industrial insurance duties. There should be a clear distinction between an agent who is employed and authorized to bring about only contractual relations between his principal and others on his initiative and by his own methods, and a servant or employee who is employed to perform physical service within the time and in the manner his employer might direct. The American Law Institute's discussion on this rule states: ...
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