Wilhelm v. R. S. Buchanan Co., 24305.

• Decision Date: 03 October 1939
• Docket Number: No. 24305.,24305.
• Citation: 131 S.W.2d 894
• Parties: WILHELM v. R. S. BUCHANAN CO.
• Court: Missouri Court of Appeals

131 S.W.2d 894

WILHELM v. R. S. BUCHANAN CO.

No. 24305.

St. Louis Court of Appeals. Missouri.

October 3, 1939.

Rehearing Denied October 17, 1939.

Appeal from Circuit Court, Montgomery County; William C. Hughes, Judge.

"Not to be reported in State Reports."

Action by Norman Wilhelm against R. S. Buchanan Company, a corporation, for injuries sustained in an automobile collision. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

A. A. Alexander and T. J. Crowder, both of St. Louis, for appellant.

Roy Hamlin, of Hannibal, Glover Dowell, of Montgomery City, Lane Henderson, of Shelbina, and Ben Ely, of Hannibal, for respondent.

HOSTETTER, Presiding Judge.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a Buick sedan in which he was riding and a Chevrolet truck belonging to defendant and driven by Cloyd Smith. The collision occurred on highway 54, at a point about four miles south of Auxvasse, about seven o'clock in the evening, on October 19, 1934. It is conceded that the collision occurred through the negligence of the driver of the truck.

The cause was tried to a jury on February 24, 1936, resulting in a verdict in favor of plaintiff for $1,000, and judgment was given accordingly. Defendant appeals.

Defendant was engaged in the egg and poultry business. Its home office and principal plant and place of business was at Perry, in Ralls County. It also maintained plants or stores at Center, Bowling Green, Silex, Laddonia, Wellsville, Mexico, and Fulton. Cloyd Smith was manager of the plant or store at Wellsville. One truck, which was the truck involved in the collision, was used in connection with the business at the Wellsville store or plant. William Schocklee was regularly employed as the driver of this truck. The duties of Cloyd Smith, the manager, were to look after the sales, the buying, the keeping of stock, and to check up the cash at night and make remittances to the main office, and to put out the prices as directed by the main office. He frequently used the truck in going back and forth between Wellsville and Perry in connection with defendant's business.

Defendant contends here that Cloyd Smith in driving the truck at the time of the collision was not acting within the scope of his employment. Plaintiff relies on the presumption, arising from proof of ownership of the truck, the general employment of the driver, and certain facts and circumstances developed by the testimony, that he was acting within the scope of his employment.

The chief contention of defendant is that there was no showing that Smith was on any business for defendant at the time he injured plaintiff and that the trial court erred in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the testimony.

In determining the merits of this contention that the evidence in its entirety failed to make a case properly submissible to the jury, we are mindful of the well established rules by which we are to be guided in passing on such contention.

The well-recognized and oft-repeated rule, as to whether the plaintiff has made a submissible case for the jury, is that we must consider the whole evidence whether offered by the plaintiff or the defendant, and that the plaintiff should be given the benefit of any and all facts and circumstances favorable to or tending to support plaintiff's theory of the case and every reasonable inference deducible therefrom, while evidence on the part of the defendant which is contradictory to plaintiff's evidence or contradictory to any evidence favorable to plaintiff must be excluded. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, loc. cit. 683; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809, loc. cit. 810.

Testimony relied upon as tending to make a submissible case against the defendant is as follows:

R. S. Buchanan, president of defendant corporation, and its general manager and principal owner, shortly after plaintiff was injured, after repeated efforts to get in touch by phone with plaintiff's father, Louis G. Wilhelm, who lived in Hannibal, succeeded and the latter gave the following version of their telephone conversation: "Mr. Buchanan, when I answered the phone, told me who it was, and he said he was sorry for the accident and sorry that the boys were injured and that his driver of the truck had hit us; he had talked to this Cloyd Smith and he had found he was the one that hit us, and he had brought him back, and he would take care of the expense of the accident, that we had plenty of worry with the injured."

His cross examination on this subject was as follows:

"Q. Yes, now, do you say that, do I understand you correctly, Mr. Wilhelm, or will you kindly tell me exactly if Mr. Buchanan said to you that he was sorry, that he would pay you your damage? A. Mr. Buchanan said he was sorry for the injury, sorry his man and truck had caused the injury, and he would take care of the expenses, but sympathized with our suffering.

"Q. Let me ask you if this isn't the fact: Didn't Mr. Buchanan call you up and say to you he was sorry that it was you that was in the accident, but that his man had been drunk and had gone off that night with this truck and not only did you some damage, but had done damage to other people, and for all of which he was sorry, but that it was just too bad; isn't that what he said to you? A. No."

Mr. Buchanan admitted that he told Smith to use the company truck in coming to Perry.

Mr. Buchanan's payment for the gasoline put in the truck at a filling station from which Smith drove off, going west without paying for it, is stressed by plaintiff's counsel as an implied admission that the defendant was liable for Smith's tort against plaintiff; it is further claimed by counsel for plaintiff that Mr. Buchanan told Dewitt, the filling station manager, that Smith was his man driving his truck, when he went off without paying for the gas, and that such statement is also an admission of liability. Similar statements made by him to Louis G. Wilhelm, (father of plaintiff), hereinbefore set out, are counted on by plaintiff's counsel as fastening liability on defendant.

The retention by the company of Smith as its employee, after the circuit court of Audrain County had sentenced Smith to the penitentiary for being a "hit and run" driver and paroled him to Mr....