Estes v. Owen

• Decision Date: 29 January 1943
• Docket Number: 36871
• Parties: Mary Pierce Estes, Appellant, v. Ferd Owen
• Court: Missouri Supreme Court

168 S.W.2d 1052

350 Mo. 753

Mary Pierce Estes, Appellant, v. Ferd Owen

No. 36871

Supreme Court of Missouri

January 29, 1943

Rehearing Denied March 1, 1943.

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Edwin C. Orr, Clark, Boggs, Peterson & Becker and Howard B. Lang, Jr., for appellant.

(1) The court erred in giving Instruction D-3 on behalf of the defendants for the reason that said instruction imposed a greater burden upon the plaintiff than plaintiff is required to bear in a case of this kind. Morris v. E. I. Du Pont de Nemours & Co., 109 S.W.2d 1222; Timper v. Mo Pac. R. Co., 98 S.W.2d 548; Sheehan v. Terminal R. Assn., 81 S.W.2d 305; Aly v. Terminal R. Assn., 78 S.W.2d 857. (2) There was no evidence in this case which justified submitting the question to the jury that plaintiff's negligence was the sole cause of the collision and injury. Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 54; Schuetter v. Enterprise Comm. Corp., 34 S.W.2d 976. (3) The Instruction D-12 by which the court submitted sole cause negligence was erroneous because it submitted generally the question of sole cause negligence and did not submit spcifically the facts and acts claimed to constitute such negligence. Pearrow v. Thompson, 121 S.W.2d l. c. 815; McGrath v. Meyers, 107 S.W.2d 792; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Barber v. Kellog, 123 S.W.2d 100. (4) The court erred in giving instructions D-C, D-D, D-E, D-F, and D-G requested by the defendant Owen because each of said instructions is abstract and ignores the issues and does not submit the facts necessary to be found in order for the jury to arrive at a verdict for the defendant. Lewis v. K. C. Pub. Serv. Co., 17 S.W.2d 359; Perles v. Feldman, 28 S.W.2d 375; Birdsong v. Jones, 30 S.W.2d 1094, 225 Mo.App. 242; Baker v. Scott County Milling Co., 43 S.W.2d 441. (5) Plaintiff made a submissible case against the defendants on both primary negligence and humanitarian negligence. Nash v. Peoples Motor Bus Co., 20 S.W.2d 570; Dodson v. Gate City Oil Co., 88 S.W.2d 866; Gorman v. Franklin, 117 S.W.2d 289. (6) Plaintiff made a submissible case that Phillips was: Agent and servant of the respondent Owen on the nineteenth day of November, 1937. Margulis v. Natl. Enameling & Stamping Co., 23 S.W.2d 1049; Clayton v. Wells, 26 S.W.2d 969; Purdue v. Chapman, 137 S.W.2d 483; Chase v. American Pressed Brick Co., 31 S.W.2d 246; Clayton v. Hydraulic Brick Co., 27 S.W.2d 52; Horn v. Asphalt Products Co., 131 S.W.2d 871; Andres v. Cox, 23 S.W.2d 1066; Grothmann v. Hermann, 241 S.W. 461; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Semper v. American Press, 217 Mo.App. 55, 273 S.W. 186; Haney v. Geraghty, 273 S.W. 780; Burgess v. Garvin. 219 Mo.App. 162, 272 S.W. 108; Borah v. Zoellner Motor Car Co., 257 S.W. 145. (7) There was a submissible case that the agent and servant Phillips was at the time of the collision with Mrs. Estes acting as the agent and servant of Owen and about his master's business. Borgstede v. Waldbauer, 88 S.W.2d 373; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 903; Silent Automatic Sales Corp. v. Stayton, 45 F.2d 471; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; American Law Institute, Restatement of Agency, secs. 233, 234.

A. L. Lebrecht and Cecil Nelkin for respondent Owen.

(1) Appellant failed to make a submissible case against respondent on humanitarian negligence. Scotten v. Met. Life Ins. Co., 81 S.W.2d 313; State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 38; Keim v. Blackburn, 280 S.W. 1046; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Poague v. Kurn, 140 S.W.2d 13; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Putnam v. Unionville Granite Works, 122 S.W.2d 389; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600. (2) Appellant failed to make a submissible case that Phillips was the servant of Owen at the time of the collision. Igo v. Alford, 69 S.W.2d 317; Vert v. Met. Life Ins. Co., 117 S.W.2d 252; Snowwhite v. Met. Life Ins. Co., 127 S.W.2d 718; Riggs v. Higgins, 106 S.W.2d 1; Barnes v. Real Silk Hosiery Mills, 108 S.W.2d 58; Skidmore v. Haggard, 110 S.W.2d 726; Kourik v. English, 100 S.W.2d 901; Manus v. K. C. Distributing Corp., 74 S.W.2d 506. (3) Appellant's evidence failed to make a submissible case that Phillips was at the time of the collision acting as the agent and servant of Owen and about his master's business. Schmitt v. American Press, 42 S.W.2d 969; Chambers v. Kennedy, 274 S.W. 726; Wolf v. Terminal R. Assn. of St. Louis, 222 S.W. 114; Halsey v. Metz, 93 S.W.2d 41; Sowers v. Howard, 139 S.W.2d 897.

OPINION

Bohling, C.

Mary Pierce Estes sued Jewett O. Phillips and Ferd Owen, his alleged employer, for $ 10,000 damages on account of injuries sustained while crossing, as a pedestrian, a street intersection in Columbia, Missouri, when struck by an automobile operated by Phillips. The jury returned a verdict for the defendants. Plaintiff's motion for new trial was sustained as to defendant Phillips but was overruled as to defendant Owen. Plaintiff thereupon dismissed her action without prejudice against Phillips and prosecuted this appeal against Owen. Owen concedes error in the instructions given on behalf of defendants. However, he contends plaintiff made no case against him, principally because there was no substantial evidence upon which to predicate liability under the doctrine of respondeat superior; i. e., no evidence establishing that Phillips was an employee, servant or agent of his and, if this contention be not sustained then, no evidence that Phillips at the time of the accident was upon any business or mission of his. This case has recently reached the writer.

Phillips who lived in Columbia, Missouri, and Owen, who lived in Kansas City, Missouri, were engaged in the horse and mule business. Owen did business under the name of Ferd Owen Horse and Mule Company and Kansas City Horse and Mule Company. The latter was incorporated and he was its president. Phillips conducted no business with the Kansas City Horse and Mule Company. Owen and Phillips were friends and the business relationship between them had existed for a number of years. Reading the testimony as a whole on the issue of the relationship between Owen and Phillips it appears that Owen's business was the sale of horses and mules for a commission of $ 2.50 a head at Kansas City, usually at auctions conducted on Monday mornings, and the reimbursement of any outlays incurred, such as for feeding, etc., by Owen, it being the purpose of Owen and his organizations to secure as great a volume of this business as possible. To accomplish this Owen would make arrangements with buyers of horses and mules to finance them, furnishing them with blank drafts and authorizing them to draw upon him or the Ferd Owen Horse and Mule Company for the purchase money of horses and mules and expenses incurred in connection therewith, such as traveling and hotel accommodations of the buyer and the sheltering, feeding, drayage, etc., of the animals pending their sale at the auctions. As drafts would come in against and expenses were incurred by Owen corresponding charges would be entered on the books against the individual buyer's account and when the animals were sold the account would be credited with the sale price, subject to Owen's commission of $ 2.50. Any profits or losses resulting from the individual transactions were the profits or losses of the buyer; Owen testifying that Phillips had been unable to show a profit over a number of years and was indebted to him for $ 2,100; and that if the buyers make it, they paid, and if they did not, "we try to collect it off of them." Phillips used his wife's 1937 Plymouth automobile in the business and rented a barn, which had a small office, in Columbia. He had a telephone at the house but none at the barn, making use of a nearby telephone when occasion arose. He transacted his business in the country or at the barn, stating he always looked over the animals before purchasing. The evidence does not establish that he was transacting the business at his home. He might use the telephone there once-in-a-while to call someone. Phillips was free to make purchases or not and was unrestricted as to time and place for transacting business. He received no orders, no directions, no instructions and no advice of any nature from Owen. He determined the price to be paid and how, when, and where to ship the animals. He made no reports. He received no salary, was under no obligation to devote time to the business or to buy any horses and mules. The rent for the barn and some of the purchase price of the Phillips' automobile and Phillips' traveling expenses when using the automobile were paid by proceeds from drafts drawn on Owen by Phillips; but, as we read the record, there is no substantive evidence that Owen had actual knowledge his money was being used for the purchase of the automobile and he testified he did not know about Phillips renting the barn. If one of Phillips' drafts came through, it was charged against Phillips' account, seemingly without investigation. In depositions given by...