Thompson v. St. Joseph Country Club, WD
| Decision Date | 16 February 1982 |
| Docket Number | No. WD,WD |
| Citation | 632 S.W.2d 6 |
| Parties | Teresa Dell (Vaughn) THOMPSON, Appellant, v. ST. JOSEPH COUNTRY CLUB, Respondent. 32305. |
| Court | Missouri Court of Appeals |
Martin M. Bauman, St. Joseph, for appellant.
Paul H. Niewald and Stephen S. Brown, Kansas City, for respondent.
Before CLARK, P. J., and MANFORD and KENNEDY, JJ.
Appellant Teresa Dell (Vaughn) Thompson, plaintiff below, recovered a verdict for $655,000 for personal injuries received when she was struck by a car driven by Jack Gordon, in an action against Gordon's employer, St. Joseph Country Club, Inc. The trial court set aside the verdict and entered judgment for the defendant, and the plaintiff appeals.
The issue presented by the appeal is whether there was any evidence from which the jury could find agency of Gordon for defendant Country Club at the time of the accident, so that Country Club may be held liable for Gordon's negligence under the doctrine of respondeat superior.
We hold there was no such evidence and affirm the judgment of the trial court.
The accident occurred July 4, 1976, at about 9:30 o'clock p. m. Apellant and a woman friend were talking together as they stood outside appellant's automobile on a lawn adjoining Highway 71 in St. Joseph. Gordon's car traveling along the highway left the highway and struck appellant, inflicting serious injuries. Gordon had earlier been a party to the lawsuit, but had settled with appellant and had been dismissed therefrom. He did not testify in the trial of the case, nor were any statements of his introduced into evidence.
Gordon was general manager of the defendant Country Club. The Country Club was located about one-fourth mile from the point where the accident took place, and on a direct route therefrom. There was no testimony as to where Gordon was going or what his business was in traveling down the road when the accident took place.
Plaintiff says the fact that Gordon was in the scope of his employment by defendant Country Club at the time of the accident, so that his negligence can be attributed to defendant Country Club, is a permissible inference from the following facts:
Gordon's employment as general manager of the Club made him responsible for the operation of the Club. He received a salary of $27,500 per year, plus an allowance of $100 per month for the use of his personal car. He was required by his written contract of employment to "devote his entire time, attention and energies to the business of the Employer, and shall not during the term of this agreement be engaged in any other business activity ..." The car allowance was to reimburse him for his use of the car in connection with the Club's business. The vice-president of the Club, Mr. Hornaday, gave as examples of the kind of use Gordon might make of his personal car in the Club's business, "run checks to the board members for signing, to pick up groceries at the grocery store at the last minute ..." Gordon had considerable discretion in the use of his time, and would sometimes spend as long as 12 to 14 hours at the Club in a day, depending upon activities at the Club, but was not required to keep regular working hours.
On the evening of the accident, there was an Independence Day party in progress at the Club, with an estimated 300 people in attendance. The jury might have found that most of them were still at the Club when the accident took place, for there was testimony that most of them stayed till the fireworks display ended at about 10 o'clock p. m.
There is nothing in the foregoing evidence that makes Gordon's agency for the Country Club at the time of the accident more than speculative. He could have been going on an errand for the Club, as appellant urges. He could have been on some mission in connection with his employment. But it is not enough to say that that could have been the case, for he could also have been on a mission of his own. He could have been going home after his day's work. He could have been on some other personal mission.
Appellant emphasizes the employment contract provision which required his "entire time" to be devoted to his employment, and the testimony of Mr. Hornaday, the vice-president of the Club, that Gordon sometimes worked 12 to 14 hours in a day. She points also to evidence that he was subject to call at any time, and that he received from the Club $100 per month as reimbursement for the use of his personal car. Appellant asks us to permit the jury to infer from such evidence that Gordon was hastening to get something needed at the Club when the accident occurred. The evidence, however, supports no such conclusion.
A contract of employment requiring that one's entire time be devoted to his employer's business does not make his employer responsible for all his...
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