Weinbauer v. Berberich

• Decision Date: 16 December 1980
• Docket Number: No. 41692,41692
• Citation: 610 S.W.2d 674
• Parties: Robert A. WEINBAUER, Plaintiff-Respondent, v. Wilbert BERBERICH et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 674

610 S.W.2d 674

Robert A. WEINBAUER, Plaintiff-Respondent, v. Wilbert BERBERICH et al., Defendants-Appellants.

No. 41692.

Missouri Court of Appeals, Eastern District, Division One.

Dec. 16, 1980.

F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendants-appellants.

Godfrey P. Padberg, Padberg, McSweeney, Slater, Merz & Reid, St. Louis, for plaintiff-respondent.

SNYDER, Judge.

Robert A. Weinbauer (Weinbauer) sued Wilbert and Elsie Berberich d/b/a Berberich Delivery Service (Berberich) and the Pulitzer Publishing Company for personal injuries he sustained in a rear-end collision. A jury found in favor of Weinbauer and against Berberich in the sum of $30,000, and in favor of the Pulitzer Publishing Company. Berberich appeals the verdict in favor of Weinbauer.

Berberich alleges the trial court erred in three respects. He claims it was error to give Weinbauer's verdict directing Instruction No. 3 which submitted the negligence of "defendants" but not the negligence of the driver of the truck who was not a party to the suit. He challenges the trial court's overruling of his objection to Weinbauer's counsel's argument of the amount of damages in the final portion of his summation when damages had not been mentioned in the opening portion of the summation. Finally, Berberich challenges Weinbauer's damages Instruction No. 7 because it did not take into consideration two injuries received by Weinbauer subsequent to the automobile collision.

The points raised are ruled against Berberich and the judgment of the trial court for Weinbauer is affirmed.

Weinbauer was employed as a package beer driver for Grey Eagle Distributors. He unloaded 30 pound cases of beer from a Grey Eagle truck when delivering them to commercial establishments. Once or twice a week he unloaded 165 pound half-barrels or kegs of beer during his deliveries. He earned more money when he drove the keg routes. At the time of the collision on January 21, 1977, Weinbauer was returning to the company warehouse in a Grey Eagle truck. The truck was stopped on an uphill grade at a red electric traffic signal, heading south on Lindbergh Boulevard in St. Louis County, Missouri. While Weinbauer was stopped, a Berberich delivery truck driven by an employee, Dennis Venegoni, collided with the rear of the Grey Eagle truck which Weinbauer was driving and sent the Grey Eagle truck 20 to 25 feet into the intersection.

Venegoni testified that he applied the brakes within 100 yards of the Grey Eagle truck, but they failed, and he could not stop his vehicle. The emergency or hand brake was inoperable. Venegoni shifted from fourth gear to second (low) gear which slowed the delivery truck but did not stop it. Venegoni also stated that after the collision Weinbauer declined medical attention. The Grey Eagle truck was driveable after the collision and Weinbauer continued to the warehouse where he reported the accident. His employer sent him to consult the company physician, Dr. Arenos, on January 24, 1977. Weinbauer complained of neck pain, lower back pain and headaches to Dr. Arenos, who prescribed medication and hot packs. Weinbauer saw Dr. Arenos a few times but felt no improvement. He contacted his family doctor who referred him to a neurosurgeon, Dr. Jonathan Gold. Dr. Gold examined him on February 16, 1977, and found muscle spasms in Weinbauer's neck but no neurological defects. Dr. Gold prescribed only conservative treatment, including pain reliever medication, and released Weinbauer to return to work. Nevertheless, Weinbauer consulted Dr. Gold on two other occasions, complaining of back pain.

On February 28, 1977, on the advice of a co-worker and a relative, Weinbauer consulted Dr. Gerald Knapp, an osteopath. He complained to Dr. Knapp about his back, but not his neck. Dr. Knapp treated him by manipulation, and continued these back treatments until February 1979. Dr. Knapp testified that his examination revealed no injury to Weinbauer's neck.

After the collision, Weinbauer incurred two other injuries. In May 1977, while he was unloading a keg of beer from the delivery truck he fell and injured his ankle. In February 1978, while he was lifting a keg, he pulled a leg muscle. Weinbauer testified on cross-examination that his back hurt when he fell in the May incident. He further admitted on cross-examination that the fall was not related to any injuries sustained as a result of the vehicular collision.

Berberich's first contention is that the verdict director, Instruction No. 3 (MAI 17.16 Modified) ¹, was erroneous for omitting a specific reference to the driver Venegoni, for omitting a finding of Venegoni's negligence and for improperly submitting the rear-end collision doctrine. Berberich argues that MAI 18.01 ² was the proper submission. This point is ruled against Berberich.

MAI 18.01 is the verdict director to be used when agency is in issue. Agency is not in issue here. Berberich has not denied agency. Indeed, Berberich introduced the deposition of his employee, Venegoni, who stated that he was employed by Berberich to deliver newspapers by truck. Immediately prior to the accident Venegoni had picked up printing equipment from the St. Louis Post-Dispatch and was driving to the northwest plant of the newspaper. After the accident, Venegoni contacted Berberich according to procedures established by Berberich. This undisputed evidence proves the employer-employee relationship between Berberich and Venegoni. ³ Thus, the agency of Berberich and Venegoni was not an issue, and MAI 18.01 was not the appropriate instruction.

Berberich argues that MAI 18.01 was appropriate because it would contain a reference to the driver of his vehicle, Venegoni, and require a finding of Venegoni's negligence. While Berberich does not specifically assert that these elements are necessary to the instruction in order to submit the doctrine of respondeat superior, he seemingly makes this claim.

"Respondeat superior is based on the principle that the master controls the actions of his servants and therefore the servants' actions are attributable to the master." Light v. Lang, 539 S.W.2d 795, 799(10-11) (Mo.App.1976). "(T) he master is liable for the negligence of the servant on the ground that one who does a thing by and through another, his servant, does it himself and is responsible for the manner in which it is done." Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447, 458(25) (1934). 53 Am.Jur.2d Master and Servant § 417 (1970). Normally, the question of whether respondeat superior applies (that is, whether an employment relationship exists and whether the employee was acting within the scope of his employment) is a matter for the jury. Blind v. Saks Fifth Avenue, Inc., 349 S.W.2d 425, 432(5) (Mo.App.1961). Nevertheless, where the facts are undisputed and only one reasonable conclusion can be drawn from them, the matter is a question of law. Smoot v. Marks, 564 S.W.2d 231, 236(6) (Mo.App.1978).

Berberich's undisputed evidence showed the existence of an employment relationship and showed that the task which Venegoni was performing at the time of the accident was within the scope of his employment. Berberich is bound by this uncontradicted testimony of his witness. Silberstein v. Berwald, 460 S.W.2d 707, 710(3-4) (Mo.1970). Thus, the application of respondeat superior is a matter of law to be handled by the court's instructions. Here, the court correctly submitted a verdict director which ignored the issue of agency. Such a submission was proper. Price v. Ford Motor Credit Co., 530 S.W.2d 249, 255(15) (Mo.App.1975); Young v. Frozen Foods Express, Inc., 444 S.W.2d 35, 40(5, 6) (Mo.App.1969).

Berberich also challenges the verdict director as an improper submission of the rear-end collision doctrine, claiming the jury had a roving commission to find it negligent on any act. Particularly, Berberich points to evidence that the brakes on his delivery truck were faulty and contends the jury could base its verdict on Berberich's negligent failure to maintain good brakes rather than on its driver's negligent conduct.

The rear-end collision doctrine recognizes that:

"if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle."

Hughes v. St. Louis Public Service Co., 251 S.W.2d 360, 362(3) (Mo.App.1952). See also Witherspoon v. Guttierez, 327 S.W.2d 874, 880(5) (Mo.1959); Wagoner v. Hurt, 554 S.W.2d 587, 589(1-3) (Mo.App.1977).

The brake question was raised by Berberich. Weinbauer was not required to negate brake failure as a defense.

" 'A plaintiff's verdict directing instruction properly hypothesizing his affirmative facts and theory of recovery is not erroneous in omitting reference to or ignoring defendant's evidence which merely tends to disprove the plaintiff's affirmative allegations and evidence. Merrick v. Bridgeways, 362 Mo. 476, 241 S.W.2d 1015, 1021 (1951).' "

Turner v. Cowart, 450 S.W.2d 441, 444(1, 2) (Mo.1961); Glowczwski v. Foster, 359 S.W.2d 406, 410(5) (Mo.App.1962). Berberich's challenge to Instruction No. 3 fails.

Berberich contends in his second point that the trial court erred in permitting Weinbauer's counsel to argue the amount of damages in the closing portion of his summation when he had not mentioned the amount of damages in the opening portion. This point is ruled against Berberich.

"The generally accepted rule in argument of a case is that counsel having the affirmative (usually the plaintiff) should develop in his opening statement the points and matters which he wishes to present. The...