State v. Trimble

• Citation: 250 S.W. 384
• Decision Date: 09 April 1923
• Docket Number: No. 23807.,23807.
• Parties: STATE ex rel. SHAW TRANSFER CO. v. TRIMBLE et al., Judges.
• Court: United States State Supreme Court of Missouri

250 S.W. 384

STATE ex rel. SHAW TRANSFER CO. v. TRIMBLE et al., Judges.

No. 23807.

Supreme Court of Missouri, Division No. 2

April 9, 1923.

Certiorari to Kansas City Court of Appeals.

Certiorari, on the relation of the Shaw Transfer Company, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, and Ada F. Burke, to review and quash the judgment of the Court of Appeals in Burke v. Shaw Transfer Co., 243 S. W. 449, affirming a money judgment against relator. Writ of certiorari quashed.

Guthrie & Conrad and Bale Routs, all of Kansas City, for relator.

Davis & Woodruff, of Kansas City, for respondents.

HIGBEE, C.

Certiorari to review and quash the judgment of the Court of Appeals in Burke v. Shaw Transfer Co., 243 S. W. 449, affirming a judgment against relator for $5,000 for damages for personal injuries sustained by Mrs. Burke while being carried in one of relator's automobiles. We quote from relator's statement as follows:

"The facts as stated by the Court of Appeals in its opinion were as follows:

"At the time in question plaintiff was returning from a funeral of one Walter Fleming to whom she was related by marriage. Relator was in the business of operating a line of automobiles and taxicabs in Kansas City. On the day in question the widow of the said Walter Fleming had engaged the undertaking firm of W. D. Newcomer & Sons to take charge of the funeral and provide a suitable number of vehicles to convey persons attending the funeral to the church, thence to the cemetery, and thence to their respective homes.

"For the purpose of carrying out this contract, the undertaking firm placed an order with defendant for two cabs with drivers `to supplement the number of its own conveyances, at a flat charge of $7.50 per cab for the occasion.' This expense was included in the undertaking firm's bill to Mrs. Fleming and relator was paid by the undertaking firm. The amount of the charge was discounted 10 per cent. on account of cash, which 10 per cent. was retained by the latter. At the time of her alleged injury, plaintiff was riding in one of the cabs furnished by said defendant which was driven by one Ross, who was in the general employ of the defendant. Plaintiff and several other passengers had ridden to the cemetery to the cab, and at the time in question plaintiff was being driven to her home following the services. Her fellow passengers had all been put down at their homes, and plaintiff was alone in the cab. Plaintiff testified that the cab struck something, she was thrown in the air, and struck her head against the top. She was thereafter unconscious while the cab proceeded a number of blocks. When she regained consciousness she rapped on the glass, but did not get the attention of the driver. That upon reaching her home the driver opened the cab door without leaving the seat, and allowed her to alight unassisted. That she stated to him, `Young man, do you know you have almost killed me?' That he replied, `Yes; that was a hell of a bounce.

"The driver denied the conversation, denied that the cab gave any unusual or violent lurch or bounces, or that it struck anything.

"The petition alleged that the plaintiff was a passenger for hire in the automobile in question, that it was at the time in question being operated by and under the control and management of relator's servant, and that it was at said time operated by defendant in the course of its business. The petition charged general negligence on the part of the driver.

"At the close of plaintiff's evidence and at the close of all the evidence, relator requested peremptory instructions which were refused. The case was submitted to the jury by plaintiff upon the theory that plaintiff was a passenger and upon general negligence of the driver.

"In the Court off Appeals relator complained, among other things, of the action of the trial court in refusing its peremptory instruction, in giving plaintiff's principal instruction, in giving the measure of damage instruction and in the admission of testimony, and contended that the verdict was excessive.

This further statement is made in the opinion:

"On leaving the cemetery plaintiff, accompanied by a Mrs. Rogers and Miss Rogers, of Clarinda, Iowa, members of deceased's family, got into the cab driven by Ross, and in addition to these two other women and a little girl also entered the cab. There is testimony tending to show that the undertaker in charge directed the woman with the child to enter the cab at the cemetery; she not having been in the cab on the trip from the church to the cemetery. Aside from this circumstance, it does not appear that the undertaker gave any directions relative to the operation of the cab."

After discussing a number of cases, the opinion proceeds:

"The testimony shows there was no supervision exercised over the driver by the undertaker, and, while it is true that the right to direct is rather more determinative of the question here involved than the fact that this right was exercised, the act of directing may be, and is, an element in considering whose was the right to give directions, but it may not be wholly controlling. In 26 Cyc. 1522, 1523, this general rule is declared: `It is not so much the actual exercise of control which is regarded as the right to exercise such control. To escape liability, the original master must resign full control of the servant for the time being; it not being sufficient that the servant is partially under the control of a third person.' * * *

"If, therefore, the genera master does not resign full control over his servant, his liability for the negligent act has not been severed. In the case at bar there is evidence which tends to show joint control. In this connection we refer to the testimony of Fred Gephart, superintendent of defendant company, who, when asked as to whether any instructions were given these drivers with respect to what they should do when they were employed by directors of funerals, answered: `Our instructions were that they were under the undertaker's inspection when they left our garage, and they worked under his instructions altogether.' On cross-examination he was asked:

"`Q. Did you give any specific instructions to your man Ross when he went to the Fleming funeral? A. No; but he was included with the rest of the drivers when we talked to them along that line.

"'Q. That was just some general meeting of the drivers, without respect to this particular funeral? A. We had instructions written at one time in regard to this funeral business; yes, sir. * * *

"'Q. Do you know whether any such written instructions were given to Mr. Ross when he went out with a car to this Fleming funeral?

A. They wouldn't be given to him personally; they would be given to all the drivers. * * * "

"`Q. Of course, you mean by directions that they were to take directions from the man conducting the funeral as to where they would go and what they were to do? A. Yes, sir.

"'Q. You were not attempting to make it the duty of the undertaker to instruct those men as to how they should drive their cars, were you? A. It has been that they instructed them how to drive them.

"'Q. With what speed? A. Yes, sir.

"'Q. And when they were returning passengers from the cemetery, for instance, and not in the funeral procession? A. Not when they are returning, but when they are going to the cemetery.'

"In the light of this testimony it will not do to say that defendant had released to the undertakers complete control of the chauffeur Ross. Applying the rule in the Simmons Case to the facts of the case at bar, the conclusion is inevitable that Ross was engaged in the business of his employer, the defendant. The citations of defendant on this point do not change or modify this rule. The evidence in support of this contention is abundant, and is sufficiently substantial to support a verdict against defendant."

1. Relator's first contention is that the Court of Appeals, in holding that under the evidence the relator had joint control over the driver at the time in question and the refusal of the court to hold that under the evidence the undertaking firm had complete control over the driver, is in conflict with the last previous rulings of this court in Smith v. Railroad, 85 Mo. 418, 55 Am. Rep. 380; Cook v. Railroad, 63 Mo. 397, and Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, Ann. Cas. 1918D, 1123.

The opinion states that it was a custom of undertakers to engage cabs of relator for funerals. It was a part of relator's business to furnish cabs and drivers for that portion of the public des: ring to attend funerals conducted by the undertaking firm. For this relator charged $7.50 for each cab and driver furnished. It further states that the testimony shows there was no supervision exercised over the driver by the undertaker, and that the evidence in support of this proposition is abundant and is sufficiently substantial to support a verdict against the relator.

On the facts as stated in the opinion, neither the trial court nor the Court of Appeals could hold as a matter of law that' Ross, the driver of the cab, had changed masters. On the evidence it was a question of fact for the jury. In Scherer v. Bryant, 273 Mo. 596, 604, 201 S. W. 900, 902, T. J. Blair, J., delivering the opinion of the court, said:

"It is said the principal test of the relation, ship of master and servant is control. In a case like this it is necessary carefully to `distinguish between authoritative...