The State ex rel. Mountain Grove Creamery, Ice & Electric Company v. Cox

• Decision Date: 06 August 1926
• Docket Number: 26875
• Citation: 286 S.W. 368,315 Mo. 619
• Parties: The State ex rel. Mountain Grove Creamery, Ice & Electric Company v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

286 S.W. 368

315 Mo. 619

The State ex rel. Mountain Grove Creamery, Ice & Electric Company v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 26875

Supreme Court of Missouri

August 6, 1926

Record quashed.

V O. Coltrane for relator.

(1) The decision of the Court of Appeals under the facts set out by that court in its opinion is in direct conflict with the controlling decisions of this court. Hillsdorf v. St Louis, 45 Mo. 98; Mound City Paint Co. v Conlon, 92 Mo. 221; Whiteaker v. Railroad, 252 Mo. 438; Smothers v. Welch & Co., 274 S.W. 678; Kiser v. Suppe, 133 Mo.App. 19. In such cases the responsibility of principals for the acts of others is based upon their power of control, and where the agent or servant is pursuing his own ends for his own purposes the rule of respondeat superior does not apply. (2) The decision of the Court of Appeals is also in direct conflict with Cousins v. Railroad Co., 66 Mo. 572; Wolf v Terminal Association, 282 Mo. 559; Garretzen v. Duenckel, 50 Mo. 104; Guthrie v. Holmes, 272 Mo. 215. In such cases where the servant or agent is disregarding the object for which he was employed and was acting without the scope of his employment, the master or principal is not liable.

Ragland, J. All concur, except Graves, J., absent.

OPINION

RAGLAND

Relator seeks to have quashed, on the ground that they are in conflict with the decisions of this court, the opinion and judgment of the Springfield Court of Appeals in the case of Pleasant A. Vaughn v. Mountain Grove Creamery Ice & Electric Company and L. N. Moore, reported in 275 S.W. 592. That suit was for personal injury. The plaintiff therein alleged that on the 13th day of June, 1918, he was in the employ of the defendants; that pursuant to such employment it was his duty to take care of the boiler room of their creamery plant and to perform such other work in and around said plant as he might be called upon to do; that on said date, while engaged in the discharge of his said duties, he received certain injuries; and that those injuries were proximately caused by the negligence of defendants in failing to furnish him with reasonably safe appliances and a reasonably safe place for the performance of his work. In the trial court plaintiff was given judgment against both defendants and it was affirmed on appeal. On the trial of the case the principal issue as between plaintiff and defendant Mountain Grove Creamery, Ice & Electric Company (relator here) was whether the latter was operating the creamery plant at the time plaintiff received his injury. The rulings of the Court of Appeals on the facts adduced on that issue are made the basis of this proceeding.

Prior to the institution of the personal injury suit there had been litigation between Mountain Grove Creamery, Ice & Electric Company and Moore involving as between them the ownership and right of possession of the creamery plant. Phases of that litigation had been before the Court of Appeals and opinions had been written. On the trial of the Vaughn suit those opinions, reported in 197 S.W. 916, and 202 S.W. 1054, were read in evidence, and they were incorporated by reference, as statements in part of the facts, in the opinion of the Court of Appeals attacked in this proceeding. The facts must therefore be gathered from all three of the opinions. (In the opinion under review the defendant Mountain Grove Creamery, Ice & Electric Company, relator herein, is treated as identical with Mountain Grove Creamery, Poultry & Produce Company, one of the parties to the litigation heretofore referred to).

We quote from the opinion in Mountain Grove Creamery, Poultry & Produce Company v. Willow Springs Creamery Company, 202 S.W. l. c. 1054, 1055, as follows:

"On November 10, 1914, defendant Moore was secretary of plaintiff, and resided at Mountain Grove. On that date the plaintiff at a meeting of its board of directors directed that Moore see what could be done towards leasing the Green Hills Creamery Company plant at Willow Springs. Moore kept the minutes of this meeting and signed them as secretary, and at this time and afterwards throughout 1915 and 1916 was in the employ of plaintiff, drawing a stated monthly salary. Moore made two or three trips from Mountain Grove to Willow Springs and other places to see about securing the lease, his expense being paid by plaintiff; but the Green Hills Creamery Company would not lease to plaintiff, but was willing to lease to Moore. This company had lost about $ 8000 in the creamery business, and had its plant mortgaged for $ 5000, and the due date of the mortgage debt was approaching. Moore reported back to plaintiff that he could not secure the lease to it, and he was thereupon instructed to use his own judgment about how he secured the lease. Finally Moore succeeded in obtaining a temporary lease direct to himself, dated December 17, 1914, expiring April 20, 1915. Shortly after obtaining this lease Moore moved from Mountain Grove to Willow Springs, and took charge of the creamery plant of the Green Hills Creamery Company at Willow Springs. Moore continued to draw his salary from plaintiff, and it was agreed that if the leased plant made a certain amount, he was to have a certain bonus above the stated salary. Plaintiff advanced money to properly equip the Willow Springs plant. On March 12, 1915, Moore secured a lease from the Green Hills Creamery Company to himself beginning on April 20, 1915, and running for five years.

"It seems that there was a kind of tentative understanding between Moore and the directors of plaintiff that they would some time organize the leased plant at Willow Springs into a separate corporation, but no definite terms or time were ever agreed upon. Moore operated the leased plant under the name of 'Willow Springs Creamery Company, L. N. Moore, Manager.' In 1915 the plant lost $ 490, but in 1916 made about $ 9000. Some time in 1916 Moore resigned as secretary and director of plaintiff, and sold his stock therein, but continued to operate, as manager, the Willow Springs plant, and plaintiff continued to pay his salary. On March 26, 1915, a few days after the five-year lease was obtained, plaintiff furnished $ 4200 for the purpose of financing the Willow Springs plant. This was used in overhauling and replenishing the plant with new and necessary fixtures and machinery. . . . It appears that the plant at Willow Springs was operated as a kind of semi-independent concern, as separate books, etc., were kept, and on the surface it appeared to be a real competitor with the Mountain Grove plant; but the Willow Springs plant was in fact managed and directed by Moore, who was in the employ and under the direction of plaintiff. Moore expected the plant at Willow Springs to be incorporated, and he to have stock therein, but the necessary steps to incorporate were not taken, and the matter passed, with occasional mention, until December, 1916, when Moore had some difference with the manager of plaintiff at Mountain Grove. After this difference Moore became insistent that the new corporation be created. . . . In January, 1917, Moore, with the profits of the Willow Springs plant, discharged all obligations incurred on behalf of the Willow Springs plant, and proceeded to organize a new and separate corporation under the name of 'Willow Springs Creamery Company.'"

And the following from Willow Springs Creamery Company v. Mountain Grove Creamery, Poultry & Produce Company, 197 S.W. l. c. 916, 917:

"This is an original proceeding for a writ of prohibition against the defendants Mountain Grove Creamery Company and Hon. E. P Dorris, judge of the Circuit Court of Howell County, Missouri, to restrain the enforcement of an order of said court, made in a cause there pending, wherein the said Mountain Grove Creamery Company was plaintiff and L. N. Moore and others, acting under the name of the Willow Springs Creamery Company, were defendants. Said order was made on July 31, 1917, at the July term of said court, and is as follows: 'The order of the court, heretofore entered, that the Mountain Grove Creamery Company be permitted to inspect the Willow Springs plant is hereby re-affirmed, and the Willow Springs Creamery Company and L. N. Moore are to furnish a monthly written statement to the Mountain Grove Creamery Company, showing receipts, expenses, and disbursements.'

"The facts leading up to the said order are these: L. N. Moore who had been conducting a creamery business at Willow Springs, on leased premises, with all the necessary apparatus, machinery, and fixtures, took steps to form a corporation in which he was chief stockholder, to be known as the Willow Springs Creamery Company. The capital stock of the proposed corporation included the fixtures, machinery, etc., of the plant then being managed and operated by said Moore. Thereupon the Mountain Grove Creamery Company brought suit by injunction in the Howell County Circuit Court, setting up that all...