Wills v. Belger

• Decision Date: 14 June 1948
• Docket Number: 40587
• Parties: J. A. Wills v. Richard Belger, Doing Business as Belger Cartage Service, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 736

357 Mo. 1177

J. A. Wills v. Richard Belger, Doing Business as Belger Cartage Service, Appellant

No. 40587

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Frank J. Rogers and Cooper, Neel, Sutherland & Rogers for appellant.

(1) Defendant's motion to set aside the judgment in favor of plaintiff and render judgment for defendant in accordance with his motion for a directed verdict should have been sustained for the reason that the driver of the truck at the time of the occurrence was not engaged in defendant's business and subject to his direction and control, but was under the direction and control of Morgan Grocery Company and engaged in the work of that company. McMarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67; Ellegood v. Brashear Freight Lines, Inc., 236 Mo.App. 971, 162 S.W.2d 628; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758. (2) The court erred in giving plaintiff's Instruction 1, for the reason that (a) said instruction is broader than the evidence and the facts in evidence do not warrant or justify a finding that defendant was negligent as submitted in such instruction. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Rothe v. Hull, 352 Mo 926, 180 S.W.2d 7; Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Robb v. St. Louis Pub. Serv. Co., 352 Mo. 566, 178 S.W.2d 443. (3) Said instruction assumes that the act of the driver of the truck was negligent without requiring the jury to so find. McCullough v. St. Louis Pub. Serv. Co., 86 S.W.2d 334; McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045. (4) The court erred in giving plaintiff's Instruction 2 for the reason that said instruction is confusing and does not properly and correctly declare the law governing the borrowed servant question, and is not supported by the evidence. McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Rutherford v. Tobin Quarries, Inc., 336 Mo. 1171, 82 S.W.2d 918.

William S. Hogsett, Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for respondent.

(1) Whether defendant's driver was defendant's agent and servant at the time of the occurrence, and whether he was engaged in defendant's business and subject to defendant's direction and control, and whether the defendant had the right to control him were questions of fact for the jury. The trial court did not err in so holding and submitting these issues to the jury. State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Boroughf v. Schmidt, 259 S.W. 881; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900; Flori v. Dolph, 192 S.W. 949; Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449. Certiorari quashed in State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384. (2) Plaintiff's Instruction 1 correctly declared the law. The instruction was supported by the evidence and did not erroneously assume that the defendant's driver was negligent, but correctly submitted that issue to the jury. Huth v. Picotte, 154 S.W.2d 382; Jaquith v. Fayette R. Plumbing Co., 254 S.W. 89; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458; Genta v. Ross, 225 Mo.App. 673, 37 S.W.2d 969; Robb v. St. Louis Pub. Serv. Co., 352 Mo. 566, 178 S.W.2d 443. (3) Plaintiff's Instruction 2 correctly declared the law on the borrowed-servant question. It was supported by the evidence. It was not confusing and the trial court did not err in giving it. State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Boroughf v. Schmidt, 259 S.W. 881; Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries occasioned by the alleged negligence of defendant in the operation of a delivery truck. The action is based upon the theory that defendant is liable on the doctrine of respondeat superior, while defendant contends he had surrendered full control of his servant to a third party. The jury returned a verdict against defendant for $ 12,500 upon which judgment was entered. Defendant has appealed.

Plaintiff-respondent was employed by the Morgan Grocery Company of Kansas City, Missouri, as a truck driver to deliver groceries. On February 26, 1946, the truck which he ordinarily used was in the shop for repairs, and his employer (hereinafter referred to as Morgan) secured a truck and driver from appellant for the purpose of making deliveries. The truck was a one and one-half ton truck, with open bed and flared sides. It was loaded with groceries at Morgan's place, and, since the driver did not know the city streets, nor the route, respondent was directed to accompany him to collect for and help deliver the groceries and to tell the driver where to go. Respondent, at the direction of his employer, stood on a sack of flour on the tail gate of the truck to hold the groceries on the truck. The tail gate was down level and respondent leaned forward against the groceries, which were piled 2 1/2 to 4 feet high at the front of the truck and sloped back. In traveling to the first stop, the driver made a right turn at a street intersection and the front wheels of the truck went around the corner, but the right rear wheel struck the curb. Respondent was thrown off sideways, to the left and out into the street. He fell on his left shoulder and back and received severe injuries.

Appellant contends that the trial court should have directed a verdict for "defendant for the reason that the driver of the truck at the time of the occurrence was not engaged in defendant's business and subject to his direction and control, but was under the direction and control of Morgan Grocery Company and engaged in the work of that company." In stating the detailed facts on this issue, we will state the evidence favorable to respondent and disregard appellant's evidence unless it aids the respondent's case, and we will also disregard certain evidence of respondent's witnesses, where his own testimony is more favorable. If there was substantial evidence in the record from which the jury could infer and find that appellant's truck driver, at the time and place in question, was acting as appellant's employee, within the scope and course of his employment and in the discharge of appellant's business, the motion for a directed verdict was properly ruled.

The evidence shows that appellant was engaged in "general hauling," "all types of hauling," including contract hauling, and that he had been in that business in Kansas City for 28 years. The answer expressly admits that appellant "is engaged in the transfer, hauling and cartage business." He operated the Belger Cartage Service, of which he was the owner, and he had more than one hundred employees. In contract hauling, he operated as a common carrier of goods in the states of Kansas and Missouri and was governed by the rules of the Interstate Commerce Commission to whom he submitted his tariffs. Both oral and verbal contracts were made for hauling goods. He had a verbal contract with Morgan by which he regularly furnished one truck with a driver and Morgan agreed to use it forty hours a week. In the event of an emergency, or an increase of business, he agreed to furnish Morgan additional trucks at the same hourly rate. Appellant furnished "gasoline, oil, drivers insurance, and everything governing that, cargo insurance that governs that." Morgan regularly used two delivery trucks in its business. One was furnished by appellant and operated by appellant's employee, and the other was owned by Morgan and was operated by respondent, Morgan's employee.

On February 26, 1946, since its truck was out of service, Morgan called upon appellant for an additional truck. In such case the call would come to appellant's dispatch room. Appellant testified: "The first truck that comes in and the man fits the picture, or who had been there before, we send them down because as I said before, we are subject to cargo loss." In this case Kimberlain, a regular employee of appellant, who had been to Morgan's a time or two before, was sent with the truck in question. He was not the regular man sent to Morgan's every day. On the side of the truck was a sign, as follows: "Belger Cartage Service Since 1919." The truck belonged to appellant and he kept it in repair. Kimberlain had been regularly driving this truck for appellant for about four months and appellant was paying him for driving it. If the truck got out of repair on the road, Kimberlain would phone appellant and one of appellant's mechanics would come out and get it or Kimberlain would take it to appellant's shop for repair. Each day, some one at appellant's place would tell him where to go. He went everywhere that appellant instructed him to go. On the day in question, Kimberlain, as usual, reported to appellant's place of business at 8 a.m., ready to go to work, and someone in charge there told him that he was to go to the Morgan's that day. He was not at Morgan's the day before. He punched the time clock in appellant's office and took his truck and went to Morgan's where he assisted respondent and others to load the truck with groceries to be delivered to Morgan's customers. He finished his work about 7:15 o'clock that evening and returned to appellant's office where he "punched out and . . . went home." The truck was...