Wills v. Townes Cadillac-Oldsmobile, CADILLAC-OLDSMOBIL

• Court: United States State Supreme Court of Missouri
• Citation: 490 S.W.2d 257
• Docket Number: INCORPORATE,No. 56517,No. 1,CADILLAC-OLDSMOBIL,R,56517,1
• Parties: Danny Gene WILLS, by his next friend, Billy Gene Wills, Appellants, Appellants, v. TOWNESespondent
• Decision Date: 12 February 1973

Page 257

490 S.W.2d 257 Danny Gene WILLS, by his next friend, Billy Gene Wills,
Appellants, Appellants,
v.
TOWNES CADILLAC-OLDSMOBILE, INCORPORATED, Respondent. No. 56517. Supreme Court of Missouri, Division No. 1. Feb. 12, 1973.

Page 258

Albert C. Lowes and Joe T. Buerkle, Buerkle, Buerkle & Lowes, Jackson, for appellants.

Jack O. Knehans, Finch, Finch, Knehans & Cochrane, Cape Girardeau, for respondent.

JAMES H. KEET, Jr., Special Judge.

Appellants (plaintiffs) appeal (prior to January 1, 1972) from judgment on jury verdict for respondent (defendant) in an action for damages arising out of a collision on July 23, 1969, between defendant's automobile allegedly driven by its car salesman Robert McClary within the scope of his employment and a bicycle ridden by Danny Gene Wills, the minor plaintiff (born November 23, 1961). Count I, for the child by his next friend, prayed $27,500 damages. Count II, for his parents, prayed $10,000 damages for their losses and medical expense. This court has jurisdiction under Section 3, Art. V, Missouri Constitution 1945 as amended, V.A.M.S., and Section 477.040, RSMo 1969, V.A.M.S., and amount in controversy being over $30,000, exclusive of costs. Plaintiffs urge a number of trial errors which they assert entitle them to a new trial. Defendant contends that plaintiffs failed to make a submissible case on the issue of agency and scope of employment of McClary.

Agency and Scope of Employment

Plaintiffs had the burden of proving not only that McClary was defendant's agent, but also that he was acting within the scope of his employment. Chandler v. New Moon Homes, Inc., Mo., 418 S.W.2d 130, 133. If they failed to sustain this burden, the trial errors, if any, are immaterial

Page 259

and the judgment must be affirmed. Osborn v. McBride, Mo., 400 S.W.2d 185. The evidence warrants findings of fact set out herein.

McClary was a car salesman for defendant and had sold cars all of his life. At the time of the occurrence he was driving defendant's car, an Oldsmobile with 4,000 miles on it and in perfect condition, which the jury could reasonably infer was a 'demonstrator'. He had the privilege of using it (and any other car of defendant he had) in any way and at any time he pleased, for business or pleasure. In connection with his duties he had the privilege of driving the car, and was called upon to sell and did sell cars at various times in the day and night and had no regular office hours.

On the day in question McClary had returned from a vacation trip at Lake Taneycomo with his wife, Walter Crawford and Mrs. Crawford (sister of Mrs. McClary). While there, they had gotten word of the death of a sister of McClary and had started back, with Crawford driving the first half of the way back. McClary had previously sold cars to Crawford. McClary testified that while he was on the trip he did not 'engage at any time in any business on behalf of' defendant. He let the Crawfords out at their home in Scopus and proceeded to his brother Ed's home in Jackson to check on funeral arrangements. He testified that the intended visit was not 'connected with' his employment by defendant. He customarily visited Ed three or four times a month. It was on the way to Ed's that the accident occurred.

In a prior suit by plaintiffs against defendant and McClary for damages arising out of the accident, defendant's then general manager and treasurer had answered plaintiffs' interrogatories under oath, stating that defendant owned the car at the time of the occurrence and, as to whether it was 'operated by an agent or employee of yours acting in the scope of his employment' (Interrogatory 3), had answered 'Yes'. Plaintiffs dismissed the prior suit just before trial because a crucial witness was unavailable. The present action was then filed. The pleadings in the previous case are not in the transcript, which does not reflect whether agency and scope of the employment were therein denied by the then defendants. In the refiled action, the defendant denied generally the allegations of agency and scope of the employment. Shortly before the trial plaintiffs dismissed as to McClary. At trial the said interrogatories and answers (which had never been amended or withdrawn) were received in evidence, over objections that they were in the previous case, McClary's deposition established that McClary was on a vacation trip, defendant's answer expressly denied agency, and the answers were not supported by any of the facts. Defendant did not deny at trial that it made the answer to Interrogatory 3. Defendant's attorney stated (outside the jury's presence) that the answers to the interrogatories were penned in by the insurance adjuster and that the attorney prepared the answer after he had just gotten the file and before he knew what the facts were and he 'assumed the agency'. Defendant made no objection to plaintiffs reading into evidence excerpts from a deposition given by McClary while the first suit was pending.

The court allowed plaintiffs' attorney to read into evidence a letter from defendant's attorney mailed to plaintiffs' attorney just after the first suit was filed, which first discussed matters of tire marks, distances, etc., inquired into by the interrogatories in the first case and then said, 'Robert L. McClary was admittedly in the course of his employment, he was the driver of the vehicle'. Defendant's attorney concedes that a party's attorney may bind his client by statements in a letter, but that such would not bind the client in the refiled litigation where agency is denied.

The evidence is clear that defendant owned the car and McClary was in the general employ of defendant. From these facts alone it is presumed that McClary

Page 260

was at the time of the occurrence acting in the course of his employment. Chandler v. New Moon Homes, Inc., supra, 418 S.W.2d l.c. 133. If the defendant introduced substantial controverting evidence (as to which we do not rule in this case because of the additional evidence noted herein), this presumption disappears. This is because discovery rules are available and defendant can be compelled to state relevant facts. It is plaintiffs' lookout to see whether agency is at issue. If it is, as here, plaintiffs have the burden of obtaining relevant facts on the issue and may use interrogatories for this purpose. Chandler v. New Moon Homes, Inc., supra, 418 S.W.2d l.c. 135--137.

Defendant's answer to Interrogatory 3, admitting that McClary was acting within the scope of his employment, was admissible in evidence as an admission against interest. McCallum v. Executive Aircraft Company, Mo.App.,291 S.W.2d 650, 656; Galbreath v. Galbreath, Mo.App., 481 S.W.2d 591, 592. This is true even though it was made in the previous case (White v. Burkeybile, Mo., 386...