Stokes v. Four-States Broadcasters, Inc.

• Decision Date: 08 April 1957
• Docket Number: FOUR-STATE,No. 1,No. 45422,45422,1
• Citation: 300 S.W.2d 426
• Parties: Eddie STOKES, by Next Friend, Opal Stokes, (Plaintiff) Appellant, v.BROADCASTERS, Inc., a Corporation, (Defendant) Respondent, Kenneth Londo, (Defendant) Appellant
• Court: Missouri Supreme Court

Page 426

300 S.W.2d 426

Eddie STOKES, by Next Friend, Opal Stokes, (Plaintiff) Appellant, v. FOUR-STATE BROADCASTERS, Inc., a Corporation, (Defendant)

Respondent, Kenneth Londo, (Defendant) Appellant.

No. 45422.

Supreme Court of Missouri, Division No. 1.

April 8, 1957.

Bert Hurn, Neosho, Edward V. Sweeney, Monett, for appellant Eddie stokes.

Coyne & Patten, Joplin, for respondent.

HOLMAN, Commissioner.

On the afternoon of June 25, 1953, plaintiff, Eddie Stokes, a nine-year-old pedestrian, received serious personal injuries as he was crossing a street in Joplin, Missouri, when struck by an automobile owned and operated by Kenneth Londo. Acting through a next friend, plaintiff instituted this action seeking to recover damages in the sum of $25,000 from Londo and his employer, Four-States Broadcasters, Inc. At the close of plaintiff's evidence the court sustained the motion of the corporate defendant for a directed verdict. At the conclusion of the trial the jury returned a verdict for plaintiff in the sum of $25,000 against defendant Londo and a verdict (in response to the court's direction) in favor of the other defendant. Plaintiff and Londo each filed notices of appeal but said defendant has taken no further steps to perfect his appeal and same is accordingly dismissed. 42 V.A.M.S. Supreme Court Rule 1.15. We will proceed to review the appeal of plaintiff from the judgment entered upon the directed verdict in favor of defendant Four-States Broadcasters, Inc.

Plaintiff sought to recover against the corporate defendant upon the doctrine of respondeat superior alleging that, at the time of the accident, Londo was operating his automobile in the business of said company as its agent, servant, and employee, and subject to its control, direction, and authority. the sole question upon this appeal is whether the evidence was sufficient to make a case for the jury upon that issue. The only evidence on that question was the testimony of defendant Londo who was called as a witness by plaintiff.

At the time of the unfortunate casualty Londo resided in Wyandotte, Oklahoma, and had been employed by Four-States Broadcasters for almost three years as one of the engineers at its transmitter station located about four miles northwest of Joplin. He testified that he was subject to the directions of Ralph Meador, the chief engineer at the station; that Meador was the man who hired him and had the authority to discharge him if he failed to carry out his orders; that the programs originate in the studio at 1027 Main Street in Joplin and are sent over telephone wires to the transmitter where they are amplified and broadcast over the air.

The witness testified further that a schedule of the programs to be broadcast each day was made up in the office at the studio and that it was the common practice to have a copy of the program schedule at the transmitter to facilitate the work of the engineers; that Mr. Meador had instructed him to 'pick up' the schedule at the studio and deliver it to the transmitter, and that it had been his customary practice to do so as he went to work unless someone else had previously brought it out. His testimony indicates that other engineers may, in like manner, have at times 'picked up' the schedules.

On the day of the accident Londo drove from his home in Wyandotte, Oklahoma, in his own car, apparently en route to his work at the transmitter. As he went through Joplin he stopped at the studio and 'picked up' the program schedule for the next day. The accident in question occurred shortly after he left the studio. We quote the following from his testimony:

'Q. Now, how long had you been making deliveries of the program schedules from the studio to the transmitter before this date in question? A. Well, I had been delivering them as long as I had been working there if they were not already out there.

'Q. What route did you take from the time that you left the studio in making your delivery of the program schedules, what was your customary route from the studio to the transmitter? A. I had no specified route.

'Q. Did you have a route that you followed as a matter of routine so to speak? A. Well, out of force of habit, I took the route that I had taken the day of the accident. * * *

'Q. If somebody else hadn't picked it up and brought it out, you stopped by and picked it up, is that right? A. That is right.

'Q. And it wasn't compulsory that you do it, was it? A. Well, if I hadn't picked it up, I wouldn't have got fired for it.

'Q. This schedule that you picked up, that wasn't for that day's schedule, it was for the next day, wasn't it? A. Yes.

'Q. And so long as it got out there by the next morning, that was sufficient, wasn't it? A. That is right. * * *

'Q. Now, as a matter of fact, when you registered in out at the mechanical station out there northwest, you have to sign a log, don't you? A. Yes, sir.

'Q. And that is when your day's work starts, isn't it? A. Yes, sir.

'Q. And that is when you become in control of the machinery out there, when you sign the log? A. Yes, sir.

'Q. And you are in control of it out there until your hours are up? A. Yes, sir.

'Q. Now, do you receive any money from the company for operation of that car? A. No, sir.

'Q. Was any money paid you by the company for the use of your automobile? A. No, sir.

'Q. And did the company, either any of its bosses or officers have control or supervision over your car? A. No. They had no control over my car.

'Q. They didn't tell you how to go out and the road to take to the station from their studio? A. No, sir.

'Q. They didn't tell you how to operate the car as you went out there? A. No, sir.

'Q. You could have picked it [the schedule] up in the morning if you had wanted to and carried it around all day, couldn't you? A. Yes.

'Q. And you did pick it up about what time? A. About 4 o'clock.

'Q. And after you picked this up, this schedule, you could go any place you wanted to, couldn't you? A. Yes.

'Q. Had you ever picked it up before in the morning and carried it around with you all day? A. A lot of days, I picked it up at night and took it home with me and bring it back with me.

'Q. A lot of days, you would pick it up at night and take it down to Wyandotte and bring it back the next day? A. Yes, sir. * * *

'Q. Mr. Londo, did you say that if you had disobeyed the instructions given you by Mr. Meador and not delivered these program schedules, that you would not have been fired? A. No, sir, because I missed several times of picking them up, because sometimes I wouldn't have had time to have gotten to work if I had of stopped and picked them up. * * *

'Q. Was your automobile equipped with a license or a designation showing your connection with the station KFSB? A. I had a white tag with the letters KFSB on the front bumper.'

No definite rule has been formulated by which it may be determined in every instance whether the driver of an automobile, in the general employment of another, was acting within the scope of his employment, and under the control of his employer, at a given time so as to render his employer liable for his negligence in driving the vehicle. That determination must necessarily depend upon the facts and circumstances of each case. The burden was upon the plaintiff to present some evidence from which it could be reasonably inferred that the relation of respondeat superior existed at the time of the occurrence in question. In reviewing the sufficiency of the instant evidence we will view the evidence, and all fair and reasonable inferences to be drawn therefrom, in the light most favorable to plaintiff.

Plaintiff here contends that the facts in evidence clearly establish the existence of a master-servant relationship between Londo and the respondent at the time of the instant casualty and hence the court erred in directing the verdict in question. In support of this contention plaintiff points to the evidence indicating (1) the general employment of Londo, (2) the fact that Londo had been directed by Meador to 'pick up' the program schedules, and Meador was his superior with authority to discharge him if he failed to carry out his orders, and (3) that Londo was on his way to the transmitter with the program schedule in his possession at the time of the accident.

The cases plaintiff relies on in support of his position are Corder v. Morgan Roofing Co., 350 Mo. 382, 166 S.W.2d 455, Hammonds v. Haven, Mo.Sup., 280 S.W.2d 814, and Burgess v. Garvin, 219 Mo.App. 162, 272 S.W. 108. We have the view that each of these cases involve factual elements and circumstances not shown to exist in the instant case and hence are not controlling herein.

In the Corder case the employee involved was a foreman whose duties frequently required that he travel to barious cities to supervise work undertaken by the Roofing Company. In so doing he was permitted to use his car and his employer would pay him an amount equal to the railroad fare to and from the particular town. On the occasion in question he had been on a job in Marshall, Missouri, for a week and on Saturday called the office of his employer at Joplin and obtained permission to return to Joplin that day. It was on that trip that the accident occurred. We...