Van Hook v. Strassberger, s. 28597
| Citation | 259 S.W.2d 399 |
| Decision Date | 16 June 1953 |
| Docket Number | Nos. 28597,28598,s. 28597 |
| Parties | VAN HOOK v. STRASSBERGER et al. (two cases). |
| Court | Court of Appeal of Missouri (US) |
Moser, Marsalek, Carpenter, Cleary & Carter, Lee M. Carter and Walter K. Streutker, St. Louis, for appellant Summit Fast Freight, Inc.
Keegan & Rickhoff, John R. Rickhoff, St. Louis, for appellant Strassberger.
Stanley M. Rosenblum, St. Louis, Correnti, McKee, Rosenblum, Fitzgibbon & Goldenhersh, St. Louis, for respondent.
This is an action by Mildred Van Hook, as plaintiff, against defendants, Charles Strassberger and Summit Fast Freight, Inc., to recover damages for personal injuries alleged to have been sustained on May 10, 1951, as the result of a collision at the intersection of Natural Bridge Road and St. Anne Avenue in St. Louis County between an automobile in which plaintiff was riding as a passenger and a tractor type truck operated by defendant Charles Strassberger, who, it was claimed by plaintiff, was an employee of defendant Summit Fast Freight, Inc., acting within the scope of his employment at the time.
The trial below resulted in a verdict and judgment in favor of defendants. A timely motion for new trial was filed by plaintiff, which motion was sustained by the trial court on the ground that the verdict was against the weight of the evidence. From the order granting plaintiff a new trial, defendants have appealed.
In this court, both defendants urge a reversal of the trial court's order on the ground that their motions for a directed verdict should have been sustained. It is the contention of appellant Summit Fast Freight, Inc., that plaintiff failed to make a case for the jury against it because there was no proof that Charles Strassberger was acting as its agent, servant or employee at the time of the accident. For appellant Strassberger, it is urged that plaintiff failed to make a case for the jury on the issue of negligence.
The accident occurred at about 9:45 a. m. Plaintiff at the time was a passenger in a Chrysler automobile which was being operated by James A. Travis. The Travis car was proceeding westwardly on Natural Bridge Road, and when it reached the intersection of Natural Bridge Road and St. Anne Avenue it was run into from the rear by the tractor driven by defendant Strassberger. Natural Bridge Road at that point has three traffic lanes for westbound traffic. St. Anne Avenue runs north and south. Travis testified that he approached St. Anne Avenue in the center lane at a speed of 25 miles per hour. There was a taxicab on the left of the Travis car which was also proceeding westwardly at about the same rate of speed, that is, 25 miles per hour. The taxicab was two or three car lengths in front of the Travis car. It was raining at the time. Travis further testified:
'There is a stop sign on the northeast corner of St. Anne and Natural Bridge, and this stop was turned almost all the way around. * * * it wasn't facing me, that said
Travis further testified that he stopped at the intersection about two seconds before his car was struck. He stated he did not know how many car lengths he was from the east curb line of St. Anne when he applied his brakes. He testified he gave no signal of his intention to stop 'except the brake signal'. There were cars parked along the north curb of Natural Bridge Road, east of St. Anne Avenue, the first being about 30 feet from the east curb of St. Anne. The Travis car, according to the testimony of Travis, was struck at a point less than 30 feet east of the east curb line of St. Anne Avenue.
Charles Strassberger testified that as he approached St. Anne Avenue he traveled in the center lane and was going about 25 miles per hour; that he saw a Chrysler automobile about 40 feet in front of him, in the center, also traveling about 25 miles per hour, and saw a taxicab to his left, about even with the Chrysler, traveling at about the same rate of speed; that there were parked cars to his right, beginning about 30 feet east of the east curb of St. Anne; that the Chrysler came to an abrupt stop; that he could not say in how many feet the Chrysler was stopped; that he collided with the Chrysler; that the point of impact was less than 30 feet east of the east curb line of St. Anne; that he put on his brakes and slid into the Chrysler; and that he was about 40 feet behind the Chrysler when he saw it stop. Strassberger also testified as follows:
Charles Strassberger, called to the stand by plaintiff, stated that he was the owner of the vehicle, a 1948 G.M.C. tractor, involved in the collision. He had been using this tractor to haul trailers containing freight for Summit Fast Freight, Inc., since 1944. This was done under a lease agreement. He had no interstate commerce permit of his own to haul freight, but did so under the Certificate of Convenience granted to Summit Fast Freight, Inc.
On the morning of the day of the accident Strassberger completed a trip from Warren, Ohio, to St. Louis. He arrived at the company's dock at 1400 North Broadway about 9:00 a. m. Upon his arrival at the company's dock he unhooked the trailer and deposited in the company's office the waybills for the freight which he had just delivered at the dock. At the time Strassberger turned in these waybills the dispatcher for Summit Fast Freight, Inc., asked him if he wanted to take out another load and, when he answered that he did, the dispatcher handed him the waybills for another load to take out that evening. Strassberger testified that these waybills could have been deposited for him in a box which was maintained for that purpose at the office, and that he would, of course, have taken them from the box before leaving with his load. After completing this business, Strassberger started for him home in the tractor. He wanted to get some sleep before his next trip. It was while on this journey that the collision with the Travis car occurred. Strassberger had with him at the time his trip log, which he had not completed, but was going to complete later. He was required by Summit Fast Freight, Inc., to keep this log and was allowed four hours to complete it. He did not note the accident in the log when he later completed same, stating: 'I think it was on my off time.' At the time of the accident he was driving his tractor with no load. He reported the accident to the company after he reached home, and during the day he secured the police report on the accident and took it to the company office. Under the terms of his agreement it was his duty to report all accidents to the company.
Strassberger further testified that for the five years prior to the accident it had been his practice, without exception, to drive his tractor home after completing a trip. The company did not pay him for driving home his tractor. He stated that he could have parked the tractor near the company office, but that it would have taken him approximately one-half hour longer to get home if he took a streetcar or bus than to drive his tractor. The tractor was registered in his name. He bought all the gas used in the tractor and paid all expenses for its operation. The only compensation he received from Summit Fast Freight, Inc., was on a mileage basis for his hauls. The company did not pay mileage for the use of the tractor after delivery of merchandise to the company's dock. The payments were based upon the distance between towns, and he was paid nothing for any distance traveled after he delivered the hauled merchandise at the company's dock. After he unhooked his trailer on the occasion in question he was free to go wherever he desired. Summit Fast Freight, Inc., gave him no instructions governing his movements.
Strassberger further testified that after unhooking his trailer that morning and depositing the waybills at the company's office he was free to do whatever he wanted with the tractor; that if he had decided not to go home, but to go elsewhere, he could have done so; that he had no instructions from the company as to what to do with the tractor after leaving the dock that morning; and that there was nothing further for him to do for the company until he came back to the dock that evening to take out another load. Sometime after the collision he purchased gas for the tractor in order to leave St. Louis that evening with a full tank.
On the cab of the tractor the company had caused to be painted in white letters 'Summit Fast Freight, Akron, Ohio.' There was also painted on said cab the company's Interstate Commerce Commission and State permit numbers.
Plaintiff introduced in evidence the agreement entered into between Summit Fast Freight, Inc., as Party of the First Part, and Charles Strassberger, as Party of the Second Part, with respect to the transportation service...
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