State v. Ellison

• Citation: 287 Mo. 139,229 S.W. 1059
• Decision Date: 01 April 1921
• Docket Number: No. 22258.,22258.
• Court: United States State Supreme Court of Missouri
• Parties: STATE ex rel. DOCK & BROS. QUINCY BREWERY CO. v. ELLISON et al., Judges.

229 S.W. 1059

287 Mo. 139

STATE ex rel. DOCK & BROS. QUINCY BREWERY CO. v. ELLISON et al., Judges.

No. 22258.

Supreme Court of Missouri, in Banc.

April 1, 1921.

Certiorari by the State, on the relation of Dick & Bros. Quincy Brewery Company against James Ellison and others, Judges of the Kansas City Court of Appeals, to review the determination of such court in the case of Robert E. Vaughn v. William F. Davis & Sons and Dick & Bros. Quincy Brewery Company, 221 S. W. 782. Record quashed.

Culver & Phillip and John S. Boyer, all of St. Joseph, and William B. Bostian and R. R. Brewster, both of Kansas City, for relator.

Duvall & Boyd, of St. Joseph, for respondents.

JAMES T. BLAIR, J. Certiorari.

The record brought here by the writ is that of the Kansas City Court of Appeals in Vaughn v. Wm. F. Davis & Sons et al., 221 S. W. 782. Vaughn was struck and injured by an automobile truck in use for the delivery of beer and soda water in the city of St. Joseph. He sued W. F. Davis & Sons, of St. Joseph, and Dick & Bros. Quincy Brewery Company, an Illinois corporation, and had judgment. The brewery company, relator here, alone appealed. The Court of Appeals affirmed the judgment.

Relator contends the opinion rendered in the case is in several respects in conflict with decisions of this court. One of these contentions goes to the ruling that there was sufficient evidence to take to the trial jury the question whether relator was liable for damages resulting from the truck driver's negligence. This makes it necessary to set out the facts stated in the opinion of the Court of Appeals in connection with the ruling mentioned. These facts are as follows:

"There was no question but that the driver was in the course of his employment, driving the truck in the business of delivering beer, for which it was intended and used; nor is there now any contention over the fact that he negligently ran plaintiff down and injured him permanently and seriously. The great contest is over the question whether the relationship of agency or master and servant can be said to have existed between the driver and the brewery company, so as to render the latter liable for the former's negligence. Or, in other words, is the evidence such that the jury can say such a relationship did exist?

"The record discloses that the time of the injury, and for four years prior thereto, Davis & Sons were distributing agents for the brewery company in the city of St. Joseph, and were also engaged in the manufacture and sale of soda water. They occupied a certain building at Main and Isadore streets on which the brewery company paid the rent, and in it were stored the shipments of beer which the brewery regularly made to St. Joseph. In it the brewery company maintained a refrigerating plant and paid the expense of refrigeration, so as to keep the beer at the proper temperature until it was delivered to the saloons and possibly elsewhere throughout the city. The brewery company paid for the wholesale and retail liquor licenses which were required of Davis & Sons. The brewery company fixed the price at which the beer, which Davis & Sons distributed, was sold. Davis & Sons sold and delivered the beer from said warehouse or depot, collected the money for it, deducted their commission, and remitted the balance to the brewery company, and the empty barrels and cases were returned to it at Quincy at the latter's expense. In addition to distributing beer, Davis & Sons collected rents and notes due the brewery company, representing it in making contracts whereby the retailer agreed with the brewery company to handle the brewery company's beer, and in the buying of saloons for the brewery which were licensed in the name of individuals, but which belonged to the company. The compensation Davis & Sons received for all these things was the commission they got on the beer sold.

"Formerly, the beer had been delivered in wagons furnished by the brewery company, but about a year before plaintiff's injury the brewery company in lieu thereof sent the truck in question to be used in the delivery of beer by Davis & Sons, and the purpose was to `expedite the delivery of the brewery company's beer in St. Joseph. At the direction of the company Davis & Sons had painted on one or both sides of the truck the sign `Dick & Bros. Quincy Brewing Company,' the brewery company bearing the expense thereof. When it was necessary to repair the truck the expense thereof was borne by the brewery company. Also, at the direction of the company, Davis & Sons took out two policies of indemnity insurance, the premiums on both of which were paid by the company. One of these policies insured the brewery company against loss or damage to the truck caused by collision, and the other insured the brewery company against liability on account of injuries to any person by the truck in question. After these policies were issued, but prior to plaintiff's injury, the truck was involved in another accident, claim for which was settled by an attorney representing the brewery company. This evidence in relation to the policies and the settlement of a claim thereunder was admitted solely as bearing on the relationship existing between the brewery company and the truck, together with the business in which it was being used.

The foregoing facts were elicited from W. F. Davis, whom plaintiff put upon the stand, and who, when asked as to the arrangements between Davis & Sons and the brewery company, with reference to sending the truck to them, replied: `They (the brewery company) sent it here for to use in their business.' And when asked why they sent it, he replied: `They sent it here to be used in hauling and delivering beer. Q. Whose beer? A. Dick & Bros., Quincy, Ill.'

"Under cross-examination, however, by the brewery company, the following was brought out: That the driver of the truck was employed `though' W. F. Davis & Sons, and they paid him; that Dick & Bros. Brewery Company sold beer to no one in St. Joseph except to Davis & Sons; that they, Davis & Sons, bought f. o. b. Quincy, Ill. In answer to the question, `Whose beer is it which you buy when it is loaded on the train at Quincy?' he said, `It is supposed to be ours.' It was further elicited by defendant in cross-examination of Davis, and through other testimony offered by the appellant herein, that Davis & Sons delivered the beer by means of this truck, which was owned by the brewery company, but was `loaned,' without charge, for use as a matter of accommodation and custom between them, and that Davis & Sons were also permitted to use the truck in delivery of their soda water; that regardless of whether Davis & Sons sold the beer they `ordered' or whether they collected or did not collect for it, they owed the amount they ordered. It was elicited, however, that when they ordered beer they `just send in an order for it.' When asked what terms are stated, witness answered `No terms at all.' When asked what were the agreed terms between them, he said, `We sell the beer and send them the invoice price.' When asked if Davis & Sons sold a barrel of beer to a man in St. Joseph who never paid for it, would they `have to pay for that beer just the same to Dick & Bros.?' he answered, `Well, yes; we do.' When asked who directed the driver of the truck where to go and prescribed his duties, he said, `W. F. Davis & Sons, I suppose.' And when asked, `Did Dick & Bros. have anything whatever to do with deciding who should drive the truck; where he should go, what he ought to do, or have anything to do by way of directing his actions? ` he replied, `None.'"

I. The Court of Appeals held the evidence sufficient to support the jury's finding that relator was responsible for the driver's negligence. Relator contends this ruling necessitates the quashing of the record.

(1) Relator sets out some things as evidence which do not appear in the opinion. These cannot be considered. State ex rel. v. Ellison, 278 Mo. loc. cit. 47, 210 S. W. 881;: State ex rel. v. Reynolds, 226 S. W. 564; State ex rel. v. Ellison, 266 Mo. loc. cit. 610, 611, 182 S. W. 996, Ann. Cas. 1918C, 1.

(2) Conflicts with decisions of the Courts of Appeals cannot be made the basis of a judgment quashing the record under examination.

(3) Relator contends the ruling conflicts with Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127; Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, Ann. Cas. 1918D, 1123; Mockowik v. R. R., 196 Mo. 550, 94 S. W. 256, and Bolman v. Bullene, 200 S. W. 1068. The gist of relator's argument in this connection is that Vaughn's right to have the issue in question submitted to the jury depended solely upon a presumption arising from the ownership of the truck, and that this presumption was destroyed by other evidence. In the Mockowik Case the plaintiff had testified that he stepped upon a railroad track in front of a locomotive which he saw, and at a place where he knew moving locomotives were likely to be encountered. He detailed all the facts. The court ruled his testimony showed him guilty of contributory negligence as a matter of law, and no presumption of ordinary care on his part could be invoked to defeat the conclusive force of the facts to, which he had testified. In the case of Hays v. Hogan, supra, plaintiff had been injured by an automobile driven by the son of the owner. Plaintiff relied upon the ownership of the car by the father and the fact that the son was driving to show the latter was acting within the scope of presumed authority from the father. This court said, and on this relator now relies, that the mere—

"ownership of an automobile purchased by the father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby through the negligence of his minor son while operating the same on a public highway, in furtherance of his own business or pleasure."

The...