State ex rel. Missouri Highway and Transp. Com'n v. Keeley, 55804
| Decision Date | 17 October 1989 |
| Docket Number | No. 55804,55804 |
| Citation | 780 S.W.2d 84 |
| Parties | STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Appellant, v. James KEELEY and Pepsi-Cola Bottling Company of St. Louis, Inc., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Paul R. Sterrett, Rich Tiemeyer, Kirkwood, for plaintiff-appellant.
Joseph H. Mueller, Robyn Greifzu Fox, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, St. Louis, for defendant-respondent.
Appellant, Missouri Highway and Transportation Commission (hereinafter Commission), appeals the order of the trial court that sustained the motion for directed verdict filed at the close of the Commission's case by Respondent, Pepsi-Cola Bottling Company of St. Louis, Inc., (hereinafter Pepsi), and that dismissed the Commission's cause of action without prejudice for failure to prosecute.
In 1979, the Commission filed suit against Pepsi and James Keeley (hereinafter Keeley), a maintenance supervisor employed by Pepsi in September, 1977. The first amended petition alleged that the negligence of Keeley caused damage to the Commission's bridge on Route W in Jefferson County, Missouri. It further alleged that, at the time of the accident, Keeley was acting as the agent, servant and employee of Pepsi and was acting within the course and scope of his employment. Pepsi moved for summary judgment on the basis that no agency relationship existed between Keeley and itself. The trial court granted summary judgment. The Commission then filed an appeal which this Court dismissed for lack of a final judgment because the claim against Keeley remained pending in Circuit Court. State Hwy. Comm'n v. Keeley, 696 S.W.2d 865, 867 (Mo.App.1985). Thereafter, the trial court entered a default judgment against Keeley in the amount of $1,069,566.70. 1
The Commission again appealed the trial court's summary judgment in favor of Pepsi. This Court reversed and remanded. We held that a presumption arose that Keeley was acting within the scope of his employment by Pepsi at the time of the alleged accident because, when the accident occurred, Keeley was employed by Pepsi and the car operated by Keeley was owned by Pepsi. State Hwy. Comm'n v. Keeley, 715 S.W.2d 338, 340 (Mo.App.1986). The record, however, contained no facts to either confirm or rebut this presumption. We stated that
[w]hile the record does not show a business purpose for the operation of the vehicle at 4:30 in the morning, neither does it show such a purpose did not exist. Without such evidence, the existence or nonexistence of the agency relationship between Keeley and Pepsi remains a matter of speculation; and the presumption of the relationship of agency, created by the fact Keeley was an employee of Pepsi, is not destroyed.
At the subsequent trial, the Commission presented the testimony of Trooper Frank Autry who had responded to the scene of the accident at 4:38 a.m. on September 17, 1977. In the course of the trooper's investigation, Keeley admitted that he was the driver of the car when the accident occurred.
The Commission also presented evidence that created a presumption of agency. Its witness, Leonard Richardson (hereinafter Richardson), testified on direct examination that he was employed as a vice-president by Pepsi in September, 1977. By reason of that employment, Pepsi had assigned him a company car, a 1974 Chevrolet Impala. After work on Friday, September 16, 1977, Richardson, at his home in Eureka, released the car to Keeley in order that Keeley could perform a tune-up on the car at his home in Pacific and return it to Richardson the next day. Keeley's position at Pepsi, which was under the supervision of Richardson, did not involve performing tune-ups on cars. Keeley had previously performed tune-ups on other cars for Richardson. Neither Pepsi nor Richardson paid Keeley for his labor, although Pepsi was to reimburse Richardson for parts. Neither Richardson nor Keeley discussed Keeley's use of the car for personal purposes.
On cross-examination, Richardson testified that he released the car to Keeley for the sole purpose of performing a tune-up, which was undertaken by Keeley as a personal favor to Richardson; that at no time before the date of the accident, on September 17, 1977, had he ever given the company car to Keeley for personal use or purpose; that Keeley was neither to be paid by Pepsi for performing the tune-up nor to keep time records on it; that he was to pay Keeley for any needed parts and Pepsi would reimburse him for those parts; that he gave no direction to Keeley on behalf of Pepsi to drive the company car on company business at 4 a.m. on September 17, 1977; that, to his knowledge, no one at Pepsi gave Keeley any direction or order to drive that company car at 4 a.m. on September 17, 1977; that Keeley's duties as maintenance supervisor for Pepsi included no maintenance of automobiles or of other vehicles.
The trial court sustained Pepsi's objection to testimony of the Commission's witness on the issue of damages, Allen Laffoon, division engineer of bridges with the Missouri Highway and Transportation Department. Through Laffoon's testimony, the Commission sought to prove its damages by measuring the replacement and repair value of the bridge rather than the difference between the value of the bridge immediately before and immediately after the damage occurred. The trial court did, however, permit the Commission to make an offer of proof. The Commission declined, however, to offer evidence under an alternate theory of damages.
At the close of the Commission's evidence, Pepsi moved for directed verdict. The trial court granted Pepsi's motion and, in the alternative, dismissed the Commission's case for failure to prosecute by reason of the Commission's failure to offer proof under an alternate theory of damages. Following denial of its motion for new...
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