De Vall v. Mrs. Stover's Bungalow Candies Co.

• Decision Date: 24 May 1943
• Docket Number: No. 20251.,20251.
• Parties: DE VALL v. MRS. STOVER'S BUNGALOW CANDIES CO. et al.
• Court: Missouri Court of Appeals

172 S.W.2d 956

DE VALL v. MRS. STOVER'S BUNGALOW CANDIES CO. et al.

No. 20251.

Kansas City Court of Appeals. Missouri.

May 24, 1943.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by E. E. DeVall against Mrs. Stover's Bungalow Candies Company, a corporation, and another for personal injuries. Judgment for plaintiff, and the named defendant appeals.

Reversed.

Mosman, Rogers & Bell, of Kansas City, for appellants.

Allan R. Browne, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,000. Defendant, Mrs. Stover's Bungalow Candies Company, has appealed.

The facts show that, about 9:00 p. m., on March 11, 1940, plaintiff, in company with a lady by the name of Mrs. Ray, was walking across 12th Street, where that street intersects Cherry Street, in Kansas City, when a truck being driven by the defendant, Dickson, collided with Mrs. Ray and plaintiff.

Plaintiff sought to hold the defendant, Mrs. Stover's Bungalow Candies Company (hereinafter called the defendant), for the negligence of Dickson in colliding with him, on the theory that the relationship of respondeat superior existed between Dickson and the defendant at the time.

Plaintiff testified that he noticed a cardboard sign on the truck when it stopped after striking him; that the sign was located "right on the back of the truck, first section of the panel body of the truck. * * * Just back of the cab on the first section of the body. * * * It was in that section right back of the cab, first section of the truck"; that the sign was 12 inches wide and 15 inches long, and had upon it the name "Stover's Bungalow Candies"; that the sign "was hanging when I saw it, kind of knocked down. I suppose the impact of us (Mrs. Ray and the witness) rubbing on the truck or the lady dislodged it". On motion, the last sentence in the quotation was stricken out. However, plaintiff later testified that the upper lefthand corner of the sign was attached to the truck, "something was holding it, a tack, or nail, or screw;" that he did not know which, "I could not see it"; that the sign was in black letters but he could not tell whether the letters were of printing, scrip, or written out; that he judged it was a ton or a ton and a half or a two ton truck; that it had a slat body; that the truck was dark in color; that he noticed no other sign on it; that he was assisted into a drugstore nearby and did not see the truck again. Plaintiff was taken to the hospital where he remained 12 days. Plaintiff's left leg was fractured in the collision and he wore, for about seven weeks, a cast upon it.

Mrs. Ray, testifying for plaintiff, stated that the only sign that she saw on the truck was a little piece of cardboard which had upon it the words "Mrs. Stover's Bungalow Candies"; that she could not say how large it was or what was the color of the card or the lettering, or the size of the letters; that it was located "back of the cab on the first panel, hanging to one corner"; that this was the only time she saw the sign. She testified that she could read the sign but it was so dark that she could not tell whether the truck was painted or anything about the color of the body of the truck; that the truck did not have solid sides but slats "up and down".

Defendant, Dickson, testifying for defendant, stated that he was the driver and owner of the truck involved in the collision; that his occupation was "transfer business"; that he had been in that business 20 years and was operating under the name "Calumet Cab & Baggage Company"; that his business was general hauling; that he hauled for the general public, but did not work for anybody for wages; that he had a telephone which was listed in the Telephone Directory under his business name; that he had been doing business under that name for approximately a year; that the title to the truck and the occupational licenses were in his name; that he hauled for a number of different concerns, naming seven specifically, which included the defendant; that the only sign he had on the truck at the time of the collision was "Calumet Cab & Baggage Company, 24 hour service, 1205 Highland, Grand 8600"; that he had no sign on the truck reading "Mrs. Stover's Bungalow Candies"; that he had never been employed as an employee of the defendant; that he had never been on a salary; that he was never required to report to defendant in the morning to go to work; that he had been doing hauling, of one kind or another, for the defendant for approximately 12 years; that whenever it wanted him to do any hauling it would call "up over the telephone" and tell him about what it wanted done; that when the load was over 500 pounds he was paid by the tonnage rate; that he rendered his bills weekly; that he would itemize the hauling he had done, and the amount for each job; that he followed the same procedure with all of his other customers; that when he received a call to do certain hauling he would determine for himself when and how he would do it; that the defendant, at no time, told him what to do or how to do it, except to pick up the merchandise or freight and where to take it; that defendant never told him how to operate his truck; that it was never inspected by anyone connected with the defendant; that it did not pay for any of the oil, gasoline or repairs for the truck; that about 11:00 o'clock in the morning of the day in question he received a telephone call from the defendant and was told that there were some tables at Bennett's cabinet shop located at 12th & Cherry Streets; that defendant wanted these tables taken to its factory at 1206 Main Street; that about two o'clock in the afternoon he called at the cabinet shop and found that the tables were not ready for delivery; that he went on about his other transfer business; that that night he went back to the cabinet shop and got the tables; that he was on his way to deliver them to the factory when the collision occurred; that the defendant, at no time, ever attempted to tell him how to load his truck, how to work, where to go or what streets to drive on, or anything of that character; that the only thing he had on the truck at the time of the collision was the tables for the defendant; that he was hauling them on the most direct route from the cabinet shop to the factory; that he was arrested after the collision, released on bond and he did not deliver the tables until the next day.

The police officers who came to the scene of the collision immediately thereafter, followed the usual routine in arresting Dickson. They testified that they examined the truck and there was no cardboard sign on it. Defendant's evidence tends to show that there was a cardboard in the left-hand window of the truck, where the glass had been broken out, but there was no writing of any kind on it.

L. V. Robb, defendant's factory superintendent, having charge of receiving, shipping and traffic, testified that from time to time defendant had occasion to move material from one of its places of business to another; that defendant had its own panel job truck for transporting its supplies, which truck was owned and operated by Mr. Uhl, one of its regular employees; that Dickson was never, at any time, employed by the defendant; that Dickson would haul for the defendant whenever it had loads that were too large or bulky to be done by Uhl's truck; that the company also used other transfer companies but usually called Dickson first. The witness gave the names of seven, who did hauling for the defendant, including the American Railway Express. He testified that Dickson had a telephone...