Wise v. Worthington

• Decision Date: 03 March 1925
• Docket Number: No. 18848.,18848.
• Parties: WISE v. WORTHINGTON et al.
• Court: Missouri Court of Appeals

270 S.W. 151

WISE v. WORTHINGTON et al.

No. 18848.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Rehearing Denied March 31, 1925.

Appeal from St. Louis Circuit Court; O. Hugo Grimm, Judge.

"Not to be officially published."

Action by Jess Wise against Ernest M. Worthington and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Kelley, Starke & Hassett and Conway Elder, all of St. Louis, for appellants.

Sam B. Jeffries, Arthur E. Simpson, and Paul F. Plummer, all of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered a judgment for $4,000 for personal injuries which she alleged she sustained while a passenger in an automobile which was run into by an automobile which at the time was being driven by an employé of the defendants, who are the owners and operators of a public garage. The automobile complained of was not owned by the defendants but was one of many cars garaged with defendants, but at the time was being driven to the garage by an employé of the defendants from the home of the automobile owners' chauffeur. The defendants in due course appeal.

Appellants seriously urge that the learned trial court erred in not sustaining the demurrers to the evidence offered by the defendants at the close of plaintiff's case, and again at the close of the entire case, for the reason that the defendants as a matter of law were not liable for the act of their employé, Columbus Hunter, in driving the automobile which ran into the car in which plaintiff was riding and caused her injury.

After a careful consideration of the record before us, we have come to the conclusion that this assignment of error is without merit.

The record discloses that the defendants were the owners of a public garage; that one Steinbreder was the owner of two Marmon cars, which he garaged with the defendants; that the contract which Steinbreder had with defendants for garaging his two Marmon cars included the delivering of the cars to and the calling for said cars at the apartment of the said Steinbreder.

On the night in question one Feinberg, who was employed by Steinbreder as chauffeur, returned one of Steinbreder's cars to the garage of the defendants, and, having missed the street car which he had intended to take from the garage to his home, he took one of the Steinbreder Marmon cars and accompanied by one Columbus Hunter, an employé of the defendants, drove to his home, where he got out, that then the said Columbus Hunter took charge of the said Marmon car, and while he was driving the car from Feinberg's home to the defendants' garage he drove the car into the automobile in which plaintiff was riding, causing her the injuries complained of.

The crucial question in the case at bar is whether Columbus Hunter, who was driving the Steinbreder car when it ran into the automobile in which plaintiff was riding and caused her injuries, was at the time acting for the defendants in the performance of any duty imposed upon him by them, or in the performance of any services growing out of or connected with his employment, or was said Columbus Hunter acting as an independent contractor pursuant to the direction and under the control of the said Feinberg, the chauffeur of the said Steinbreder, owner of the said Marmon car.

As bearing upon this question we quote from the testimony of Barney Williams, who testified as a witness for plaintiff to the effect that he was an employé of the defendants and that he acted as night foreman of the garage.

"Q. Did you have any men working there under you? A. Yes, sir.

"Q. How many? A. Six.

"Q. Was Columbus Hunter one of those men? A. Yes, sir.

"Q. What was the duty of those men? A. Clean cars.

"Q. And what else? A. Well, they could deliver cars to people that were supposed to be delivered. Most anything that was to be done around the garage in the way of cleaning cars.

"Q. Columbus Hunter was employed there on the nights of January 22 and January 23. cleaning cars and delivering and going after cars and bringing them to the garage, yeas he? A. Yes, sir.

"Q. Was he paid by the garage for that work? A. Paid by the garage for doing the garage work; yes.

"Q. That is what I say—he received a regular weekly salary, did he? A. Yes, sir. * * *

"What service, if any, did the Portland Garage render Mr. Steinbreder in connection with delivering those cars to his residence or taking them from his residence to the garage? A. Always furnished a man to take them backwards and forwards; that is, deliver the car.

"Q. You furnished a man at the garage? A. Yes. * * *

"Q. What, if any, instructions did you receive from Mr. Boland with reference to your having one of the employés of the garage go to Mr. Feinberg's home with Feinberg in order to bring back Steinbreder's machine from Feinberg's home after Feinberg had been taken home in Steinbreder's machine? A. What conversation did I have?

"Q. What, if any, instructions did you receive from Mr. Boland in regard to furnishing a man for that purpose? A. I had that instruction from Mr. Boland.

"Q. Do you know whether or not as a matter of fact you ever did have a man go to Feinberg's home with Feinberg in Steinbreder's automobile and bring Steinbreder's automobile back to the garage from Feinberg's home? A. Yes.

"Q. On bow many occasions was that done prior to January, 1922? A. I couldn't say exactly; I never paid no attention to it, but I suppose maybe once a week or once every two weeks, as the case may be, that he was late."

We also quote from the testimony on direct examination of Feinberg, Steinbreder's chauffeur, the following questions and answers relative to defendants' employé Columbus Hunter accompanying him on his trip home that night:

"Q. What did you do after you got out of your machine? A. I went up to the office and talked to the boys; talked to the man in the office.

"Q. Who is the man in the office? A. Barney Williams.

"Q. What position did he occupy with the Portland Garage at that time? A. Night foreman.

"Q. You talked with ...