Usrey v. Dr. Pepper Bottling Co., Poplar Bluff
| Decision Date | 23 December 1964 |
| Docket Number | No. 8334,8334 |
| Citation | 385 S.W.2d 335 |
| Parties | Ada USREY, Plaintiff-Appellant, v. DR. PEPPER BOTTLING COMPANY, POPLAR BLUFF, Inc., a corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Dwight Crader, Sikeston, for plaintiff-appellant.
J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for defendant-respondent.
Ada Usrey obtained a jury verdict for $12,500. Thereafter the trial court entered judgment for the defendant Dr. Pepper Bottling Company in accordance with its motion for directed verdict. Mrs. Usrey has appealed. On sunday, April 1, 1962, Ida Mae Howell was driving an automobile belonging to her husband Charles Howell. She collided with the Usrey automobile and Homer Usrey was killed. The sole question is whether or not, at the time of the collision, Ida Mae Howell was the servant, agent, and employee of Dr. Pepper Bottling Company so that the doctrine of respondeat superior applies.
Dr. Pepper had a bottling plant at Poplar Bluff and a warehouse at Sikeston, which is on Highway 60 approximately east of Poplar Bluff. Charles Howell lived in Poplar Bluff and had been working for Dr. Pepper since the previous November. He described his duties as 'truck driver and maintenance.' He had no authority to hire or fire. One Crossfield was the principal owner and manager. His wife, Ruby Crossfield, worked in the office. Ida Mae Howell (wife of Charles) did not work at the plant, apparently had never been there, and the Crossfields were not acquainted with her. On Saturday arrangements were made for Howell to take a truck load of beverage on the following day from the plant to the warehouse at Sikeston and leave it for use by the 'routeman.' Crossfield had made arrangements with Mrs. Crossfield to drive over to Sikeston and bring Howell back after he delivered the truck. While Howell was loading the truck, Crossfield called Mrs. Crossfield and told her to come to the office preparatory to going after Howell at Sikeston in order to return him to Poplar Bluff. Then Howell volunteered the information that his (Howell's) wife, Ida Mae, was going to pick him (Howell) up at Sikeston and take him to New Madrid and (also) to visit his folks. Mrs. Crossfield came to the plant. Then, quoting from Howell's examination:
Howell told Crossfield he would have to have some money for gas. About the only place there is any possible difference in the testimony of Howell and Crossfield is in reference to this gas. Howell testified that 'I told him I had to have some money for gas.' Later he was asked:
'
Crossfield testified that gas for the car was not discussed. At any rate Crossfield gave Howell five dollars and Howell put $2.05 worth of gas in the truck and $2.50 worth in his own car; but he (Howell) testified he understood that he was to pay for the gasoline that went into his own car. Later (after the accident) Howell turned in filling station tickets showing these gasoline purchases. He was credited with the $2.05 gas which went in the truck and his wages were charged with the balance of the five dollars.
Ida Mae Howell was not at the plant that morning. Crossfield testified 'I knew that he told me she would pick him up in Sikeston but I didn't know she was going to follow him.' Howell's 'time' ended when he left the truck at the warehouse. Actually he and his wife planned to go witness a mock battle at New Madrid (which is south of Sikeston on Highway 61), and then go visit Mr. Howell's father who lived at Hayti, which is still farther south on Highway 61. They were making a family outing of the trip and Mrs. Howell had some of the children in the car. Also, it would appear Howell had two of their children in the truck with him, but there is no evidence that Crossfield knew of this. He testified it was against company rules for the drivers to have riders in the cab with them.
The collision occurred at Dexter, between Poplar Bluff and Sikeston. Instead of going around Dexter on the highway, Howell went in on what might be called the 'business' route in order to buy some bologna and sandwiches. At this time Mrs. Howell, in the family car, was following the truck, and while so engaged she collided with the Usrey car. There is no contention that Howell was negligent in the operation of the company truck. Nor is there any evidence that Howell was directing the operation of the family car. Plaintiff's case was based entirely on the negligence of Ida Mae Howell in the operation of the car.
Appellant contends she made a submissible case of liability based on respondeat superior because Ruby Crossfield testified that Dr. Pepper Bottling Company 'made arrangements' with Ida Mae Howell to return Howell to Poplar Bluff. The testimony referred to is as follows:
Later she said she didn't understand the question and her whole testimony indicates that the only knowledge she had concerning the transaction was that her husband asked her, not Mrs. Howell, to make the trip, that she went to the plant prepared to go, and Howell said that his wife was going to pick him up. It is true, as appellant asserts, that we must give the verdict holder the benefit of all favorable evidence and inferences; but we think this does not require us to place an interpretation on a statement which the witness said she did not intend and which is completely out of harmony not only with the whole testimony of the witness but also with all the other evidence in the case. Both plaintiff's and defendant's evidence show that Howell made the arrangement with his wife. There is no evidence that anyone representing Dr. Pepper Bottling Company (unless Howell be taken as a representative) had any contact whatsoever with Mrs. Howell. The whole sense of Mrs. Crossfield's testimony is contrary to the meaning which appellant seeks to apply. However, the whole testimony further shows that Crossfield, representing the defendant, acquiesced in the arrangement (by Howell) for Mrs. Howell to pick up Howell at Sikeston. The question is, was that an acquiescence or consent, either express or implied, to her performing a service for the defendant.
Appellant contends the evidence showed that defendant furnished money to buy gasoline for the truck and the car. This involves the proposition that the jury could accept the testimony of Howell, and to some extent of Crossfield, that defendant furnished the money for the gas in the car and disregard and refuse to believe the testimony of the same two witnesses that it was an advance for the personal account of Howell. This is contrary to the whole sense of the testimony of both witnesses, but for the purpose of this appeal we will assume, although it is a rather labored assumption, that defendant furnished the gas for the car.
Did the relationship of master and servant apply as between Ida Mae Howell and the defendant Dr. Pepper? Was she, in going to Sikeston to 'pick up' her husband, engaged in the service of Dr. Pepper Bottling Company? If not, Dr. Pepper would not be responsible for independent acts of a third person not in its service. It is elemental that the person sought to be charged as master is liable only when the relationship of master and servant exists in respect to the very transaction out of which the injury arose. Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, and cases cited at loc. cit. 365. We agree that a master can be liable for the acts of a servant or sub-servant appointed expressly or by implication, acquiescence, and ratification, this depending upon the circumstances involved. 1 Also we agree that the fact the person sought to be classified as servant uses his own automobile with knowledge of the person sought to be charged as master is not necessarily controlling in the application of the doctrine of respondeat superior. 2 We also assume, without finding it necessary to decide, that Charles Howell was engaged on a 'special errand' as the servant of the defendant, so that the ordinary 'going and coming' rule, if otherwise applicable, might not apply; 3 and that defendant owed Howell a duty to provide a means for return, if he so chose, from Sikeston to Poplar Bluff, and therefore it was the employer's business to provide for such return. The question is, was this trip of Ida Mae Howell in furtherance or promotion of the business of Dr. Pepper. Wolf v. Terminal R. Ass'n of St. Louis, 282 Mo. 559, 222 S.W. 114. In this connection, it is not sufficient to impose liability on Dr. Pepper that the use of the...
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