Vaughn v. William F. Davis & Sons

• Decision Date: 05 April 1920
• Citation: 221 S.W. 782
• Court: Missouri Court of Appeals
• Parties: VAUGHN v. WILLIAM F. DAVIS & SONS et al.

221 S.W. 782

VAUGHN v. WILLIAM F. DAVIS & SONS et al.

Kansas City Court of Appeals. Missouri.

April 5, 1920.)

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge. "Not to be officially reported."

Action by Robert D. Vaughn against William F. Davis & Sons, a partnership, and Dick & Bros. Quincy Brewery Company, a corporation. From judgment for plaintiff, the Brewery Company appeals. Affirmed.

John S. Boyer, and Culver & Phillip, all of St. Joseph, and William B. Bostian and R. R. Brewster, both of Kansas City, for appellant.

Duvall & Boyd, of St. Joseph, for respondent.

THIMBLE, J.

In going from the Union Station entrance west across Sixth street in St. Joseph, Mo., plaintiff was run down and permanently injured by an automobile beer truck, going north on said Street. Plaintiff had not quite reached the center of the street when he slowed up or stopped to let a horse-drawn vehicle pass in front of him. With his attention thus focussed on the vehicle, he did not see the truck, farther south and slightly east of the horse vehicle. The truck was traveling at the rate of 15 miles per hour, and its driver was looking back over his left shoulder, waving at some one. Just as, or immediately after, the horse-drawn vehicle cleared plaintiff's pathway, the truck struck him. He brought this suit for damages against W. F. Davis & Sons, a partnership, and Dick & Bros. Quincy Brewery Company, a corporation, located at Quincy, Ill. The answer in behalf of the brewery company was a general denial, coupled with a specific denial that the truck driver was its servant, or that he was engaged in any business for it; also that whatever injury plaintiff suffered was due to his own contributory negligence. The other defendants answered with a general denial and a plea of contributory negligence. The trial resulted in a verdict for plaintiff in the sum of $7,500, from which the brewery company alone has appealed.

There was no question but that the driver was in the course of his employment, driving the truck in the business of delivering beer, for which it was intended and used; nor is there now any contention over the fact that he negligently ran plaintiff down and injured him permanently and seriously. The great contest is over the question whether the relationship of agency or master and servant can be said to have existed between the driver and the brewery company so as to render the latter liable for the former's negligence. Or, in other words, is the evidence such that the jury can say such a relationship did exist?

The record discloses that at the time of the injury, and for four years prior thereto, Davis & Sons were distributing agents for the brewery company in the city of St. Joseph, and were also engaged in the manufacture and sale of soda water. They occupied a certain building at Main and Isadore streets on which the brewery company paid the rent, and in it were stored the shipments of beer which the brewery regularly made to St. Joseph. In it the brewery company maintained a refrigerating plant and paid the expense of refrigeration, so as to keep the beer at the proper temperature until it was delivered to the saloons and possibly elsewhere throughout the city. The brewery company paid for the wholesale and retail liquor licenses which were required of Davis & Sons. The brewery company fixed the price at which the beer, which Davis & Sons distributed, was sold. Davis & Sons sold and delivered the beer from said warehouse or depot, collected the money for it, deducted their commission, and remitted the balance to the brewery company, and the empty barrels and cases were returned to it at Quincy at the latter's expense. In addition to distributing beer, Davis & Sons collected rents and notes due the brewery company, representing it in making contracts whereby the retailer agreed with the brewery company to handle the brewery company's beer, and in the buying of saloons for the brewery which were licensed in the name of individuals, but which belonged to the company. The compensation Davis & Sons received for all these things was the commission they got on the beer sold.

Formerly, the beer had been delivered in wagons furnished by the brewery company, but about a year before plaintiff's injury the brewery company in lieu thereof sent the truck in question to be used in the delivery of beer by Davis & Sons, and the purpose was to "expedite the delivery of" the brewery company's beer in St. Joseph. At the direction of the company, Davis & Sons had painted on one or both sides of the truck the sign "Dick & Bros. Quincy Brewing Company," the brewery company bearing the expense thereof. When it was necessary to repair the truck the expense thereof was borne by the brewery company. Also, at the direction of the company, Davis & Sons took out two policies of indemnity insurance, the premiums on both of which were paid by the company. One of these policies insured the brewery company against loss or damage to the truck caused by collision, and the other insured the brewery company against liability on account of injuries to any person by the truck in question. After these policies were issued, but prior to plaintiff's injury, the truck was involved in another accident, claim for which was settled by an attorney representing the brewery company. This evidence in relation to the policies and the settlement of a claim thereunder was admitted solely as bearing on the relationship existing between the brewery company and the truck, together with the business in which it was being used. The foregoing facts were elicited from W. F. Davis, whom plaintiff put upon the stand, and who, when asked as to the arrangements between Davis & Sons and the brewery company with reference to sending the truck to them, replied:

"They [the brewery company] sent it here for to use in their business."

And when asked why they sent it, he replied:

"They sent it here to be used in hauling and delivering beer. Q. Whose beer? A. Dick & Bros., Quincy, Ill."

Under cross-examination, however, by the brewery company the following was brought out: That the driver of the truck was employed "through" W. F. Davis & Sons, and they paid him; that Dick & Bros. Brewery Company sold beer to no one in St. Joseph except to Davis & Sons; that they, Davis & Sons, bought f. o. b. Quincy, Ill. In answer to the question, "Whose beer is it which you buy when it is loaded on the train at Quincy?" He said, "It is supposed to be ours." It was further elicited by defendant in cross-examination of Davis, and through other testimony offered by the appellant herein, that Davis & Sons delivered the beer by means of this truck, which was owned by the brewery company, but was "loaned," without charge, for use as a matter of accommodation and custom between them, and that Davis & Sons were also permitted to use the truck in delivery of their soda water; that regardless of whether Davis & Sons sold the beer they "ordered" or whether they collected or did not collect for it, they owed the amount they ordered. It was elicited, however, that when they ordered beer they "just send in an order for it." When asked what terms are stated, witness answered, "No terms at all." When asked what were the agreed terms between them, he said, "We sell the beer and send them the invoice price." When asked if Davis & Sons sold a barrel of beer to a man in St. Joseph who never paid for it, would they "have to pay for that beer just the same to Dick & Bros.?" he answered, "Well, yes; we do." When asked who directed the driver of the truck where to go and prescribed his duties, he said, "W. F. Davis & Sons, I suppose." And when asked, "Did Dick & Bros. have anything whatever to do with deciding who should drive the truck, where he should go, what he ought to do, or have anything to do by way of directing his actions?" he replied, "None."

Under the foregoing, we think there was ample evidence from which the jury could find that the delivery of beer, in which the truck was engaged at the time of the injury, was the business of the brewery company. Davis & Sons were not independent contractors in the matter of delivering beer, nor were they delivering their beer. They were delivering the brewery company's beer, stored, refrigerated, and preserved at the latter's expense, selling it at a price fixed by the brewery company, distributing it in a vehicle owned and furnished by the company, kept in accordance with its directions and at its expense, and insured for its benefit, not only as against loss on the truck itself, but also against liability on account of the truck's operation. If Davis & Sons were operating the truck of themselves, and independently of the brewery company's business, why was the indemnity insurance for operation taken out in favor of the brewery company, and why should the brewery company bear that expense and insist upon being thus insured? It is not clear just how the expenses, which it is conceded the brewery company bore, were paid, whether they were actually paid by the brewery company itself or through Davis & Sons, the expenses being deducted from the amounts due. At one place Davis said the driver was employed "through" their firm. If the conceded expenses were paid by Davis & Sons and credit was taken against the brewery company for them, it is remarkable that the expense of the driver was not taken care of in the same way. But, if it was the brewery company's beer that was being delivered and its business that was being carried on thereby, then the driver was its agent or servant even though the driver may have been employed and paid by Davis & Sons, and they directed him, as they naturally would, where to deliver. Sandifer v. Lynn, 52 Mo. App. 553, 562, Lockwood v. American Express Co., 76 N. H. 530, 536, 85 Atl. 783. It is the right to control, not the fact of actual interference, that creates the difference between an independent contractor and...