*1 BACH, Appellant/Cross- Sandra
Respondent, FIRE
WINFIELD-FOLEY PROTEC DISTRICT, Respon
TION
dent/Cross-Appellant.
No. SC Missouri,
Supreme Court
En Banc.
July 15, 2008.
Ryan Cox, Ryan R. R. Cox & Associ- ates, L.L.C., Charles, MO, St. Appel- lani/Cross-Respondent. Wolk,
Gregory H. Berg Borgmann Wil- LLC, Wolk, Charles, MO, son <& St. Respondent/Cross-Appellant. RUSSELL, MARY R. Judge. The primary issue before this Court is whether a driver’s can be im- puted to an owner-passenger of an auto- mobile. (“Aunt”)
Sandra Bach appeals from the trial judgment, court’s which awarded her $15,000 injuries for her in an automobile driver’s, accident which Samuel (“Nephew”), Madden’s negligence was im- puted to her. This Court finds that it was proper impute Nephew’s negligence to that a principal/agent relationship $25,000, judgment of Aunt settled existed between them. Her the suit. dismissed from and was the trial court is affirmed. trial. went *3 had suffered jury found that she The I. Facts ver- $100,000 damages and returned a to 15 of the fault percent apportioning dict in an Nephew Aunt and were involved fault to percent the District and 85 rear- Nephew accident when automobile verdict, jury After the returned Aunt.4 truck, par- parked a fire which was ended judgment, its court entered but before the lights tially emergency lane in his with $25,000 to apply moved the District attending previous to a acci- on as it was her settlement received from she accident, Neph- dent.1 At the time of judgment. The mo- against Nephew ew, 16, to using Aunt’s automobile age was en- The trial court tion was overruled. meeting. her to a widows’ She was drive District to judgment ordering the tered to she did not unable drive herself because $15,000. denial of her Aunt After the pay how to have a license and did not know trial, appealed and motion for new she drive.2 This Court cross-appealed. District Constitu- jurisdiction Missouri pursuant sued and the District. Nephew Aunt V, 10, as the case was tion section article negligently alleged that She opinion by after taken on transfer degree highest failed exercise the appeals. court of a fire truck in lane parking care her of adequately traffic and failed to warn Jury Instructions II. Submission of roadway. alleged negli- the blocked This court erred that the trial Aunt asserts gence Nephew’s contributed to automobile 8, 9, number 10 and giving Instructions injury Aunt to suffer accident and caused B, A, refusing Instructions and in Verdict the District damages. response, In ar- C, A. She also and “refused” Verdict argued negligence own contrib- Aunt’s in overrul- gues that the trial court erred injuries, uted to her as she and on the issue her motion for a new trial ing joint engaged in a or were venture the evidence did not because journey at the time of the accident.3 The comparative support the submission responsi- District contended that Aunt was any negligence of fault to her because as contributory driver, Nephew’s, agent’s, imputed ble for her cannot be Nephew, negli- Nephew’s contends that if it her.5 Aunt fault as own. by Winfield-Foley jury 4. had been instructed that assess- 1. The fire truck is owned District”), ("the ing any percentage Fire Protection District of fault Respondent/Cross-Appellant in this case. Nephew’s attributed to her. fault should be automobile, 2. Since does not have an compar- presumed at issue The instructions agreed needed Aunt had that when she imputed ative fault and somewhere, go he would take her. Nephew’s negligence. Instruction based exchange, her auto- he was allowed drive 9 stated: No. to school and to visit friends. mobile verdict, percent- you your must assess Neph- misclassifies Aunt and 3. The District [Aunt], age [the whether or not fault Howev- venture. ew’s er, fault, you partly if believe: was District] inappropriate because doctrine is this First, [Nephew] keep a careful failed community pecuniary interest no there was lookout, and journey. in this Aunt and between Second, thereby negligent, [Nephew] was Horton, Manley See (Mo.1967). gence imputed cannot be may since she but consent be manifested and the and, was the automobile relationship may be created words and despite automobile, owning Shelton, she did conduct. Groh have mutual to control the automo- (Mo.App.1968). Compensation is not bile as she did not know how to drive. essential to the creation existence of the agency may relationship; wholly gra be a properly Whether in undertaking. agency tuitous Id. An rela structed is a question of law that tionship may still if parties exist even Court de Harvey reviews novo. v. Wash did not intend to create the relation *4 (Mo. 2003). 93, ington, 95 S.W.3d 97 banc subject or to ship themselves to the liabili is light Review conducted in the most fa imposes ties the law as a result. vorable the submission of the instruc Leidy Taliaferro, 504, v. 260 S.W.2d 505 tion, and if the supportable instruction is (Mo.1953). by any theory, prop then its submission is Peters, er. 245, Oldaker v. 817 S.W.2d principal A responsible is (Mo. 251-52 banc er Instructional agent, the acts of long agent her as as the are only rors reversed if the error resulted acting authority. is Lynch actual v. in prejudice that materially affects the Contractors, Plumbing Inc., Helm & Elec. Hamai, merits of the action. Ploch v. 213 657, 108 S.W.3d 660 Actu (Mo.App.2002). 135, 139 S.W.3d (Mo.App.2006). authority al authority is that the principal given, expressly either or impliedly, to In deciding whether the in- submitted agent, the empowering agent the act structions supported comparative fault as principal’s the Hyken behalf. v. Travelers the first issue to be determined is Co., 454, Ins. 678 457 (Mo.App. S.W.2d whether ex- relationship 1984). Specifically, person when a oper isted Nephew. between Aunt and an of ates automobile another the while Agency fiduciary is the relation a passenger, acquiescing owner is in the ship resulting from the of manifestation operation, a presumption there is that the agent consent an to a that the is the of driver the owner and within agent will act on principal’s the behalf and of scope agency. the De Perricone v. subject to his control. State ex rel. Ford Blaze, 724, (Mo.App.1983) 655 725 S.W.2d Bacon, 641, Motor Co. v. 642 63 S.W.3d (citing 545, Campbell Fry, v. 439 S.W.2d (Mo. 2002); (Second) Restatement (Mo.App.1969)). 548 Agency (1958). 1 sec. It is a where the principal only has the In princi order establish a control the activities; ends of agent’s pal/agent relationship between Aunt and the principal does not have Nephew, “right must have control or direct physical agent. movements to control” See Gardner Sim mons, (Mo.1963). in accomplishing the final 370 S.W.2d 362 Douglas result. argues See v. Nat’l & Acci Aunt that she did not have Life Tenn., Nashville, al, dent Co. “right Nephew. Ins. et control” She cites to Mo.App. Horton, 236 155 271 Manley S.W.2d (1941). 1967), Patrick, Neither a contract an express nor and Stover v. appointment 1970), acceptance necessary, argue there Third, as a negligence direct result of such assessing any percentage such of fault [Aunt], damage. you [Aunt] sustained must consider fault [Nephew] as the of [Aunt]. fault riding was the vehicle she an Wife co-owned regarding in Missouri law conflict in, recovery barred Hus- right to an auto should be owner-passenger’s incorrectly contends that Id. at contributory negligence. mobile. Aunt band’s of an Manley ownership automo held found that mere This Court 397-98. automatically gives passenger automobile, standing bile ownership of and, in to control automobile alone, impute the not sufficient to was contrast, joint ownership held that Stover passen- to a driver-spouse negligence riding of a vehicle which owner ger-spouse. Id. at matter does not establish as a passenger Manley conflict. not in These cases are to control the of law the owner’s issue whether speaks however, opinions, are not These vehicle. if a permitted to decide have been as Aunt their in conflict mischaracterizes existed, while ad- Stover venture holdings. imput- can be whether dresses Manley Manley, on mere based passenger-spouse ed to a *5 when the in an automobile accident injured co-ownership of an automobile. evidence of riding by in hit automobile he was was Stover's conclusion emphasizes The dissent by driver occupied another automobile does co-ownership of an automobile that Horton and Pruwitt. its give a of control over not realistic Manley Horton at 255. sued both 5.W.2d That passenger-owner. to a movement Pruwitt, filed a and and Pruwitt motion however, limited to where there holding, verdict, directed which was sustained. a of other facts of] is an evidence “absentee Manley argued On appeal, Id. at 255-56. liabili- imposing a basis for which establish improperly that the directed verdict was for acts of her ty passenger-wife on the Pruwitt was liable under sustained because Id. driver-husband.”6 joint as a matter of theory venture Stover, Aunt and Unlike The court did not find law. Id. at 259-60. automobile; were not co-owners joint existed as a matter that venture was Aunt was the sole owner law, that there was evi- but determined Nephew had at her authorization. driving indicating may that Pruwitt have dence Aunt wherever she needed agreed to drive at involved venture. Id. been and, exchange, was allowed go he Pru- though 260-61. It stated that even When personal use of the automobile. accident, asleep at the time of the witt was her, at Aunt’s driving it was behest was necessarily not eliminate his this did as to where subject to her direction control, venture and the issue of Liability based here mere go. is not jury. have been submitted to of all light In ownership of the vehicle. Id. facts, sufficient evidence there was these Stover, and passen- driver-husband finding princi- to establish basis for in an automobile injured ger-wife impute pal/agent relationship automobile col- accident when defendant’s such, As Stover is Nephew to Aunt. from at 394. lided with theirs. to Aunt’s case. applicable not found to been contribu- Husband was have may not Although Aunt and causing the accident. torily negligent a principal/agent to create since have intended argued Defendant that Id. at 397. Court, necessary to discuss sug- it is not before the asserts that Stover does The dissent gest only applicability. rule should be limited the breadth of such spousal relationship. As this is not the issue relationship, the evidence indicates agent. The trial court did not err in such a relationship existed between them. the submission of the imputing instructions reality, Aunt every did control Nephew’s negligence or to Aunt in overrul- physical movement of Nephew while he ing Aunt’s motion for a new trial. automobile, driving was her but she did control,
have the right so, and did Request III. The District’s directing when the trip occurred and the to Amend its Answer ends his activities-the destination of the cross-appeal, On the District ar trip. Under the agency, laws of gues the trial court erred and abused its principal, did not need to direct in refusing discretion it permit to amend every movement of her agent, Nephew, its answer and assert set-off and only accomplishment of the final result. in refusing judgment by to offset its Douglas, See S.W.2d 271. $25,000, the amount of Aunt’s settlement The dissent Douglas relies on to support with Nephew. When filed Sec gener- contention that “the ond Amended Petition for Damages, the ally not liable for the actions of an District had knew she settled when the no realistic $25,000. Nephew for The court control over those actions.” It fails allowing entered order recognize that this is true “unless the act responsive file pleadings Aunt’s petition. done in the manner or au- directed answer, It timely filed an but failed to thorized the principal or the result was *6 allege set-off. Aunt’s pro one or intended authorized the princi- trial, ceeded to and jury the delivered pal.” Douglas, 155 at S.W.2d 271. At the read, verdict. After the verdict was the Nephew’s accident, time of driving orally $25,000 District apply moved to the Aunt to her meeting club had as he been against settlement the verdict. The court expressly authorized and directed to do. overruled the motion because it had not Despite inability to drive and her lack pleaded proved or the set-off as an affir license, of a she had the to control 55.08; mative defense. Rule Norman trip acting the automobile and he was in Wright, 153 such, accordance with that direction. As 2005) (“[A] reduction under section 537.060 principal/agent relationship was created pleaded proved must be as an affirma and responsible and Aunt is Nephew’s ac- defense.”). tive The then moved tions.7 for leave to amend its answer and apply In reviewing jury contested instructions the judg settlement amount the to reduce in light the most favorable to their submis- ment it. The trial court overruled sion, the instructions at support- issue are the motion. theory able under the of agency. Under case, the facts It evidence suffi- within trial court’s support cient to conclusion that Aunt broad discretion to allow disallow operating and as a principal amendments pleadings. Lester The dissent states that even if Aunt had for this contention. When an acts in Nephew, to control there is no basis accordance from his instructions concluding any authority principal, power had has the to affect legal relationship alter Aunt's with a third relations of the to the same thus, party, required and essential element extent if has so acted. Re- to find a Agency is miss- sec. 12 cmt. a (Second) statement dissent, however, ing. (1958). The support cites no refusing in its discretion did abuse Sayles, 850 S.W.2d answer or to amend its court will not disturb the District appellate permit An $25,000 amend a motion to settlement refusing a trial court’s denial of to offset in erroneous. clearly it is pleading judgment. unless payment against Goldschmidt, 215 S.W.Sd re Estate con- This Court (Mo.App.2006). IV. Conclusion deter- following factors when siders af- court is of the trial judgment The in trial court erred mining whether the (1) hardship firmed.8 leave to amend: denying (2) moving moving par- party; to the omitting from the matter
ty’s reason PRICE, LIMBAUGH (3) any injus- original pleadings; JJ., BRECKENRIDGE, concur. nonmoving to the tice would result granted to amend. party if the court leave J., TEITELMAN, separate in dissents Lester, at 869. opinion filed. on Hoover v. Brund The District relies WOLFF, J., C.J., concur STITH, Inc., 193 Pumping, Concrete
age-Bone TEITELMAN, J. opinion of (Mo.App.2006), support S.W.3d 867 have the trial court should argument that TEITELMAN, Judge, B. RICHARD it to amend its answer. granted leave dissenting. Hoover, the court found that the trial court refusing to allow its discretion abused I dissent. respectfully their after defendants amend answer im- that it must been instructed have plead trial the defense of set-off. Id. to Aunt. The pute Nephew’s case, however, is The District’s 872-73. otherwise, and the net majority concludes distinguishable that the defendants bystander innocent is that an result section plaintiffs did not learn of Hoover recovery injuries for her based denied full *7 settlement until after trial due 537.060 no legal applica- that has upon construct supplement their inter plaintiffs failure in this case. tion they Since rogatory answers. Id. at 872. must be elements that There are three knowledge plaintiffs of the settle had no relationship can agency an before shown ment, could the Hoover defendants (1) principal must have the be established: in their of set-off right have asserted conduct of the the the to control has to trial. The District pleadings prior matters entrusted respect to agent with The District concedes no such defense. (2) must fiducia- agent; agent the be the of Aunt’s settle it had been notified that (3) agent must and the ry principal; of the opportunity had the prior ment to trial and relationships between able to alter be right to in its answer allege set-off State ex principal party. third the Petition, but Aunt’s Second Amended Bacon, 641, 63 642 v. circumstances, rel. Ford these failed to do so. Under 2002). any one The absence of District’s overruling of the the trial court’s a claim elements defeats of these three to amend was not clear motion its answer therefore, State court, agency exists. that an ly The trial erroneous. damages. as to Since for a new trial argues cross-appeal manded 8. The District also not err in determination court did judgment reversed the trial if the trial court’s is that re- liability, judgment will not be and its for a new trial of Aunt’s claim is remanded versed, point addressed. need not be liability, re- the cause should also be as to Koehr, Bunting 351, ex rel. 865 S.W.2d movements with respect to the details of performance any the part of the ser- vice for which he is engaged, then the majority acknowledges that Aunt agent becomes a servant in the doing had no realistic of control over how things the over such which of con- any drove the given vehicle trol is principal; reserved to the and the moment. This acknowledgment is com- principal subject becomes for pelled based on the simple facts that any negligence of his servant driving and Aunt did not regard ordinary application know under the how. Despite the fact that Aunt was the doctrine of driving how, respondeat superior and did not know (citations omitted). majority .... concludes that Aunt is But liable for rela- if Nephew’s negligence tionship the moment before is such that the principal the accident because she controlled the no physical direct the trip.” “destination of signif- There is a movements accomplish- his icant incongruity between acknowledging ing the for results which is final that Aunt had no realistic control over how employed, then agent merely any given drove the vehicle at (save servant; agent and not a while, time, moment at the same effective- matters with which presently we are not ly holding Aunt very liable for the actions concerned) principal will not be lia- majority recognizes she could not physical ble or injury harm caused control. by the negligent physical conduct (who servant) anot during the This stems incongruity majori- from the performance business, ty’s principal’s on Douglas reliance v. Nat’l &Life Nashville, “unless the act Tenn., was done in the Accident Ins. Co. manner 467, Mo.App. directed or (1941), 155 S.W.2d authorized proposition for the or the result Nephew’s negli- was one intended or au- gence imputed could be Aunt if principal.” she thorized Kourik merely result; i.e., English, controlled the final 340 Mo. added). trip. Douglas
destination of the (Emphasis does not hold that of agency permits the law words, Id. at 271. In other person of one imputed to be generally not liable the actions of an if purported another principal only agent when the principal has no realistic final *8 controls the result that the agent is to right of control over those actions. achieve. contrary, To the the Douglas distinguishes case princi- between a acknowledged by as the majority, pal/agent relationship princi- in which the had no of right realistic control over Neph- pal is not responsible negligence for the of ew’s actions in the moments leading up to and a relation- master/servant accident. The fact that Aunt con- in ship principal may which the be liable trolled the trip destination of the wid-—a for negligence of the servant under a owers’ in meeting Troy, Missouri—is not respondeat superior theory: support sufficient to the conclusion that
If to the relationship of Aunt and Nephew were in a princi- is pal/agent there added the of the relationship that warrants hold- principal to the agent’s physical ing control Aunt for Nephew’s negligence.1 liable 1. Even if it were conceded for sake of and that there was a fiducia- argument ry that Aunt did have the relationship, there no basis conclud- Moreover, jury instruction precise fully supported
This conclusion is case, objecting to in this which that Aunt is Patrick, Stover imput- to be Nephew’s negligence 1970). Stover, required Missouri law Prior to her, given in the trial court ed was also of an of the driver “negligence held in Stover in This Court declared Stover. occupant imputable automobile negli- remand, contributory that, “a on Stover, recovery.” Id. at 398. bars his negligence based on gence instruction “to re-examine the Court undertook Id. given.” not should be driver] [the reviewing Id. at 399. After question.” distinguishable, the ra- being Rather than jurisdictions that did not other cases from re- requires reversal and tionale of Stover ownership passenger gave mere a find that it is to overruled. mand unless be control, this Court concluded does “co-ownership of an automobile jury a determina- entitled to give of control over realistic of the underpinnings of the factual tion and that passenger-owner movement deny theory employed estab- of other facts which injuries. absent evidence The recovery full for her on imposing re- agency relationship lish basis of an existence for acts of her driver-hus- passenger-wife of the facts of each quires an assessment band, reason, as “a negligence and, regarded of the latter for that case merely by the be- fact to determined imputed question the former be not be when, adduced of the vehicle.” from evidence ownership cause of may fair differ- question, there be at 401. Id. as to the existence of opinion ence opinion applica- limits Devel- relationship.” v. Bi-State Johnson joint ownership cases. tion of Stover opment Agency, 793 S.W.2d Although the facts related Stover discussion preceding As the wife, by a ownership husband demonstrates, certainly grounds there are in that nothing about the rule announced opinion as wheth- a fair difference of so limited. The suggests it should be a princi- er Aunt and underlying passen- rationale Stover is drove when pal/agent gers happen also to be owners who in- meeting. The to the widowers’ not liable for the vehicle are erroneously treated in this case structions of their owner- the driver on the sole basis conclu- question foregone this factual Indeed, ship. a federal district court sion, factual de- Aunt of a depriving thus recently recognized that Stover Missouri peers. by jury of her termination vehicle does “held that a for a new and remand I would reverse realistically vehicle have control of the trial. ownership.” Littleton merely because 05-4313-CV-C-NKL, McNeely, No. *9 2007) (W.D.Mo. Oct. WL judgment matter motion for (overruling had control on basis that owner
of law majority’s ownership).
sole virtue with Stover. is not consistent
conclusion relationship is miss- any authority to alter find a ing had party. ing. a third Aunt’s case, required an essential element In either