Staley v. Lawler

• Decision Date: 07 April 1930
• Citation: 27 S.W.2d 1039,224 Mo.App. 884
• Parties: BENJAMIN G. STALEY, RESPONDENT, v. M. P. LAWLER ET AL., DEFENDANTS, MICHAEL P. LAWLER, APPELLANT
• Court: Kansas Court of Appeals

27 S.W.2d 1039

224 Mo.App. 884

BENJAMIN G. STALEY, RESPONDENT, v. M. P. LAWLER ET AL., DEFENDANTS, MICHAEL P. LAWLER, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1930

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

AFFIRMED.

Judgment affirmed.

Mytton Parkinson & Norris for respondent.

Stringfellow & Garvey for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3,000 and defendant, Michael P. Lawler, has appealed.

The facts show that plaintiff was injured on February 6, 1928, while standing in a public street in the city of St. Joseph when he was struck and injured by an automobile belonging to the defendant, Lawler (hereinafter called the defendant); that he was rendered unconscious by the collision and was taken to a hospital; that he regained consciousness in the hospital at which time there was present one Plumb, one Amelunxen, the driver of the car who was in the general employ of the defendant, and Amelunxen's wife.

No point is made in reference to the negligence of Amelunxen but defendant contends that his demurrer to the evidence should have been sustained for the reason that there was neither evidence that might have been submitted to the jury establishing Amelunxen's agency for him at the time Amelunxen struck the plaintiff nor evidence upon which a presumption of agency might have been based.

The evidence relative to the question as to whether Amelunxen was upon the business of the defendant at the time the former struck plaintiff is as follows:

Defendant, Lawler, was and had been for many years engaged in the business of selling automobiles under the name of the Lawler Motor Company, owning and conducting an agency for Ford cars in St. Joseph. Amelunxen, who was a defendant in the cause was employed on a salary by Lawler and had been so employed for six or seven years and engaged in any work which he was directed to do which was chiefly the solicitation of purchasers of automobiles.

Plaintiff was the first witness in the cause and after testifying as to the collision and his being taken to the hospital he was asked what conversation he had at the hospital with Amelunxen. To this defendant, Lawler, objected and the testimony was admitted at that stage of the case for the reason it was learned that Amelunxen would later testify and might deny the admissions he made to plaintiff. In other words the conversation between plaintiff and Amelunxen was admitted for the purpose of impeaching Amelunxen. Plaintiff was asked:

"Q. What conversation did you have with Mr. Amelunxen? A. They asked me if I did not see him. I told them I did when his car was further away, but my attention was directed to the traffic. I asked if he didn't see me. He said, 'well, no, he was in a hurry and was on his way to see a prospect for Mr. Lawler and his motor car company to sell him a car, and also to make collections,' the way I remember it, and he didn't see me."

Plaintiff then offered in evidence as admissions certain questions and answers by defendant, Lawler, made in the latter's deposition. In that part of his deposition offered in evidence by plaintiff Lawler testified that in the month of February, 1928, he had in his employ Amelunxen as a salesman; that the witness was the owner of the Ford car which was in Amelunxen's charge as salesman; that the car was operated under a license owned by the witness; that Amelunxen's duties were to sell automobiles and solicit orders for automobiles and "general work" . . . "anything I might delegate him to do such as janitor work if necessary." At the time this testimony from Lawler's deposition was read in evidence defendant's counsel stated that he thought he had a right to read the rest of the deposition which defendant later did, as part of his case.

Plaintiff introduced evidence tending to show negligence on the part of the driver, Amelunxen, testimony as to plaintiff's condition immediately after the injury and evidence that one Plumb had a conversation with Amelunxen at the hospital. Plaintiff then rested. Defendant requested a peremptory instruction which was refused. Defendant then offered and read in evidence the remainder of the deposition of the defendant. Lawler, which was to the effect that Amelunxen was classified as a salesman; that he had a right to sell cars at any time of the day under the rules; that it was not the custom for Amelunxen to solicit sales in the evening unless he did so on his own account unknown to the witness; that the witness ran his office between eight and six o'clock; that the largest number of sales was not made outside those hours; that salesmen did not make sales in the evening unless it was at the special request of the purchasers to come and call on them; that the rules and regulations of the office were that the men worked between eight in the morning and six in the evening; that he had talked with Mr. Lydick about one of the witness' cars having struck a man, the car driven by Amelunxen; that he did not recall that he said to Lydick that Amelunxen had authority to sell cars any time of the day or night; that he knew that Amelunxen had his car that evening; that he furnished all salesmen with the use of automobiles; that the cars were furnished permanently and charged to their account and they were held responsible for them; that they used those cars "for any purpose they see fit to. It is charged against them until the car is turned back or we recall it or sell it;" that it was the salesman's car all of the time, used in his business, and charged to him "for record purposes."

"Q. And they have the right to use that car in demonstrating for the purpose of making a sale any time during the twenty-four hours? A. They use it for personal or business purposes."

The witness had no regulations as to what movements the salesmen should personally make after business hours, and no rule denying them any right; their working hours are between eight and six; that is the end of their employment, "so far as we are concerned," "it is a verbal understanding." The witness did not recall any cars being sold after business hours because he did not have charge of that particular end of the business. He did not know whether Amelunxen sold cars outside business hours or not. His employees were supposed to work from eight in the morning to six at night, and he never asked a man to do any work after office hours. When the place closes it is closed. He never directed salesmen not to attempt to sell cars outside of business hours; that was a matter for their own judgment, it was left to their own judgment "absolutely." They were informed what the rules were in regard to the working hours, and they could use their own judgment what they were to do after that. "My old pep talk is that we never expect a man to do something that the boss won't do. I never work nights."

Defendant further testified that a salesman makes out his daily report and reports everything he had done that day, previous to his last report, and he either hands it in at six o'clock that night, or at the following morning meeting. Since June, 1927, to November, 1928, there really had been no cars to sell as the Ford Company was not making them. Consequently, employees were switched to other work. The witness kept four men and laid off the others and just had them around on whatever work could be found, to keep them for the new cars. If a salesman went out and demonstrated a car in the evening and tried to sell it the witness did not know it; "we have had" no occasion to make a demonstration of a Ford car for ten years. The cars furnished salesmen are to transport them around to see the customers, not to demonstrate the car. His business was different from other automobile concerns, they stay open every night; he closed at six. He ran a white man's shop; by that he meant that the salesman use their own judgment about how to sell the cars, make their own appointments absolutely, by white man's show he meant that it was run on American hours and in American ways.

Defendant introduced medical testimony and then called defendant Amelunxen as a witness. Amelunxen testified that on the night of the collision he was driving up Sixth street, going to a show with his wife; that when he left home he had in mind to go to the show; that he left home about twenty-five minutes after six; that he was going up Sixth street and did not see anyone; that he felt something against the car and his wife said, "I believe you hit somebody;" that he went over to the side of the depot and stopped and came back; that the plaintiff was lying in the street; that the ambulance was there in five minutes and took plaintiff to the hospital. The witness went to the police station to report and then to the hospital. It could not have been over ten minutes. The witness' wife went with him to plaintiff's room. The witness denied that he stated to plaintiff that at the time of the injury he was in a hurry to get uptown to see some prospect and sell a car for Mr. Lawler. Plumb, the witness' wife and an attendant were present. The witness remained there twenty or twenty-five minutes; was in the room ten or fifteen minutes. Plaintiff was conscious.

On cross-examination, the witness testified that he had seen the plaintiff when the witness was further down the street, but did not see him when he got up to him; that he saw him about 150 feet away; that plaintiff was standing still; that he did not see him when plaintiff was struck; that when the witness got back to the plaintiff the latter was semi-conscious dazed more than anything...