Vert v. Metropolitan Life Ins. Co., 34612.

CourtUnited States State Supreme Court of Missouri
Citation117 S.W.2d 252
Docket NumberNo. 34612.,34612.
Decision Date21 May 1938
117 S.W.2d 252
No. 34612.
Supreme Court of Missouri.
Court en Banc, May 21, 1938.

[117 S.W.2d 253]

Appeal from Circuit Court of City of St. Louis.Hon. James M. Douglas, Judge.


Jones, Hocker, Gladney & Jones and Arnot L. Sheppard for appellant.

(1) Respondent failed to make a prima facie case against appellant, for the reason that at the time he was injured, defendant Crowe was in nowise engaged in the furtherance of appellant's business, but was on his way to his own home. Respondent's own evidence so shows, and it shows further that Crowe had no duty whatever to perform for appellant until the following Monday morning, two days later. It is quite true that respondent's evidence shows that there was to be a round-table meeting of agents of appellant at its office in East St. Louis at 8 o'clock on the evening of the day the collision occurred, and which respondent did not attend. It will be recalled that the collision occurred about 4 o'clock in the afternoon. The exact question for decision here, therefore, is: Can appellant become liable for Crowe's actions while he was on his way home, after his services, if any, of whatever nature, were performed in appellant's behalf? According to the decisions of our own appellate courts, as well as the overwhelming weight of authority from other jurisdictions, there can be no liability upon appellant under these circumstances. Green v. Western Union Tel. Co., 58 S.W. (2d) 772; Halsey v. Metz, 93 S.W. (2d) 41; Calhoon v. Mining Co., 202 Mo. App. 571; American Sav. Life Ins. Co. v. Riplinger, 60 S.W. (2d) 115; Steffen v. McNaughton, 142 Wis. 409, 124 N.W. 1016; McCarthy v. Souther, 137 Atl. 445; Carroll v. Western Union Tel. Co., 17 Pac. (2d) 49; Bloom v. Kruger, 189 Wis. 29, 195 N.W. 851; Geldnich v. Burg, 202 Wis. 209, 231 N.W. 624; Clough v. Allen, 115 Cal. App. 330, 1 Pac. (2d) 545; Mauchle v. Panama-Pacific Exp. Co., 174 Pac. 400; Adams v. Tuxedo Land Co., 257 Pac. 926; Helm v. Bagley, 298 Pac. 826; Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296; Ohrmund v. Industrial Comm., 246 N.W. 589; Wagg v. Kangesser, 168 N.E. 517; Hantke v. Harris Ice Machine Works, 54 Pac. 293; Martinelli v. Stabnau, 52 Pac. (2d) 956. (2) Conceding, for the purpose of discussing this particular paragraph, that Crowe was the agent of appellant, it is quite clear from this record that he was not appellant's servant. The rule applicable, therefore, to a master and servant relationship cannot be applied in this case, but the rule to determine appellant's liability must be that which is applicable to a principal and agent relationship. (We are now leaving out of consideration any duty Crowe owed to appellant with respect to the collection of industrial premiums. At the time of respondent's injury he was not engaged in that character of work. Therefore, the fact that at some other time he was engaged in working in his debit would be of no consequence whatever in determining the relationship existing between him and appellant at the time of respondent's injury.) Because respondent's evidence discloses that Crowe was obliged only to obtain certain results, namely, the sale of old line life insurance for appellants, Crowe was not such an agent as subjected him to appellant's control as to the manner in which he sold policies. Therefore, appellant was not in anywise responsible for Crowe's actions while driving his automobile on the occasion in question. Restatement of the Law, Agency, secs. 220, 250; Stockwell v. Morris, 22 Pac. (2d) 189; American Nat. Ins. Co. v. Denker, 95 S.W. (2d) 370; Wesolowski v. Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 Atl. 166; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N.E. 541; Schofield's Case, 172 N.E. 346; Hardaker's Case, 174 N.E. 210; Child's Case, 174 N.E. 212; Reardon v. Coleman Bros., Inc., 178 N.E. 638; McCarthy v. Southers, 137 Atl. 445; Taylor v. General Refrigeration Sales Co., 165 So. 572. (3) Whatever the relationship was between Crowe and appellant regarding the former's work within his debit in East St. Louis at the time of respondent's injury and in so far as Crowe's trip from East St. Louis, Illinois, to St. Louis, Missouri, and return, was concerned, the relationship between him and appellant was neither that of principal and agent nor master and servant; but was that of contractor and independent contractor. Restatement of the Law, Agency, secs. 220, 250; Manus v. K.C. Dist. Corp., 74 S.W. (2d) 506; Igo v. Alfred, 69 S.W. (2d) 317; Barton v. Studebaker Corp., 189 Pac. 1025; Premier Motor Mfg. Co. v. Tilford, 111 N.E. 645; Aldrich v. Tyler Groc. Co., 206 Ala. 138, 89 So. 289; Dohner v. Winfield Wholesale Gro. Co., 116 Kan. 237, 226 Pac. 767; Ramp v. Osborne, 115 Ore. 672, 239 Pac. 112; Goldsmith v. Chesebrough, 138 Md. 1, 113 Atl. 285; Nettleship v. Shipman, 296 Pac. 1056; James v. Tobin-Sutton Co., 195 N.W. 848; Holloway v. Nassar, 267 N.W. 619; Harrington v. Lee Mercantile Co., 33 Pac. (2d) 557; Neece v. Lee, 262 N.W. 1; Johnston v. Smith, 243 N.W. 894; Khoury v. Edison Elec. Illum. Co., 265 Mass. 236, 164 N.E. 77.

Igoe, Carroll & Keefe for respondent.

(1) Under the rule of respondeat superior, the appellant company is liable for the injuries caused by Crowe's negligence in the operation of his automobile on the occasion in question, because: Under the contract and rules governing his employment Crowe was the servant of the appellant and not a mere independent contractor in all of the work that he did for it. The fact that, under the contract and rules, the company had the right to control him in every detail of that work is decisive. Hoelker v. American Press, 296 S.W. 1012; Baker v. Scott County Milling Co., 20 S.W. (2d) 499; Mattocks v. Emerson Drug Co., 33 S.W. (2d) 142; Semper v. American Press, 273 S.W. 186; Burgess v. Garvin, 272 S.W. 108; Clayton v. Hydraulic Press Brick Co., 27 S.W. (2d) 52; Green v. Spinning, 48 S.W. (2d) 51; Borah v. Zoellner Motor Co., 257 S.W. 145. (2) The use of his own car in that work was with the clearly implied, if not express, consent of the company. It had the right to control him with respect to the use of his car in its business, as it had the right to control every other detail of his work in that business. And it is responsible for his tort committed in the use of his car on its business, just as it would be liable for the tort of any other servant committed in the scope of his employment. Borgstede v. Waldbauer, 337 Mo. 1203, 88 S.W. (2d) 373; Margulis v. Nat. Enameling & Stamping Co., 23 S.W. (2d) 1051; Schmitt v. American Press, 42 S.W. (2d) 969; Burgess v. Garvin, 272 S.W. 108. Crowe's return to East St. Louis was a part of his trip (from that city to the home of a policyholder and prospect in St. Louis), which trip was wholly in the service of the company. He was within the scope of his employment on that return journey. Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W. (2d) 373; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W. (2d) 907.

A.E. Spencer and Mosman, Rogers, Bell & Buzard, amici curiae.

The test of responsibility of an employer for the negligent physical act of the employee rests primarily upon the right of control in respect of the very transaction out of which the injury arose. The most accurate statement of this rule that we have been able to find is in the case of Hilsdorf v. St. Louis, 45 Mo. 98. Division 1 of this court in Acker v. Koopman, 50 S.W. (2d) 100, adopts the statement from 39 C.J. 1268, section 1452, in the following language: "However, a master is liable for the acts of his employee only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong at the time of the injury, and in respect of the very transaction out of which the injury arose." Brunk v. Hamilton-Brown Shoe Co., 66 S.W. (2d) 903; Hein v. Peabody Coal Co., 85 S.W. (2d) 604.


This is an action for damages for personal injuries. Plaintiff obtained a verdict for $20,000 against both defendants, Francis Crowe and Metropolitan Life Insurance Company. A remittitur of $8000 was made as ordered by the trial court and judgment for $12,000 was entered against both defendants. The Insurance Company alone has appealed from this judgment.

Appellant offered no evidence at the trial but stood on its demurrer to plaintiff's evidence. Appellant contends here that its demurrer should have been sustained and peremptory instruction to find in its favor given, because under the evidence it was not liable for the acts of Crowe at the time plaintiff was injured. It therefore may be conceded in the consideration of this contention that plaintiff's injuries were caused by the negligence of Crowe in the operation of his automobile. Appellant is an insurance company engaged in both the industrial and ordinary life insurance business. In February, 1931, Crowe executed a written application to appellant for appointment as an agent, which was accepted and a written contract entered into between him and appellant. Crowe was assigned certain territory, which was called his "debit" for industrial insurance business transacted therein. This territory was in East St. Louis, Illinois, where he lived. Crowe was required to perform certain services in his "debit," including the collection of all industrial insurance premiums and his compensation therefor was a percentage based upon the amount of collections made by him within the limits of his "debit." Most of appellant's policyholders living within his "debit" carried industrial insurance, the premiums for which were due weekly, and it was Crowe's duty to collect these premiums each week. As to ordinary life insurance, as distinguished from industrial insurance, Crowe could sell such insurance anywhere in Missouri or Illinois, like any other salesman of old line life insurance,...

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