*1 duly and allocution.was sufficient accorded. attacked these were none of fact trial. for new
motion judg- no reversible error'and We find
ment is affirmed.
.All concur. HAMMONDS, Respondent
W. J. D. HAVEN,Defenda
William n t Agricultural-Association, Inc., Corporation, Appellant
No. 44540.
Supreme Court of Missouri.
Division No. 1.
June 1955. for Rehearing Motion or for Transfer t
o July 11, Court en Banc Denied
[00] tH -TO Dim-’ L'imbaugh Limbatigh, & Rush' H. tíaügh, Jr., Girardeau, respond- Cape fot '' '' ent. WESTHUES,' Judge.’ respondent in Hammohds, 'Plaintiff W. J. damáges filed 'this suit to recover court/ "personal injuries when struck sustained a cár driven the defendant William D. Haven. a de joined Plaintiff also as Associa DeKalb tion; Inci, corporation, theory'that 'Onthe agent Haven was the acting in plaintiff as such at the time fot jured. Á trial resulted in a verdict plaintiff of-$20',000 agaitíát in the sum both ' Motions for new trial' were defendants. Corporation ovérrúled and the defendant " appealed. - appealing- ¿urges .the judgment against, it-should out- be ’reversed tiyo grounds: Qne, the evi- dence to have disclosed been contributory negligence aas .of matter Two,- law. failed show evidence that.the thatdefendant Haven at the time injured servant corporation. case the against .outright court should decide .re- versal, sought on the new -trial basis assignments pertaining of error to instruc- ; tions. Except details, -principal as to minor dispute. Briefly facts were not in the'facts were: The defendant as District Managed Agricült'ural Sales for the DeKalb Association, Inc., called meeting Company salesmen for DeKalb for the 19S2,-at Dexter; of November Hammonds, Plaintiff Missouri. as one of salesmen, attended the meeting. Plain Cape Girardeau, also tiff and Haven lived at Each Missouri. drove -his own car meeting meeting at Dexter. While the progress, there was a severe rainstorm. plaintiff, desiring go early, home if might go asked home when the Sikeston, meeting Harry Blanton, was about over. C. & Permission' Blanton .was .counsel, Blanton, granted plaintiff bégan appel- his drive home Sikeston, lant, .Agricultural Ass’n, Highway Inc. About 'mile State is,
or,
Missouri, plaintiff
Advance,
first
south of
so
blown
at
encpuntered
plaintiff guilty
been
tree
Plaintiff
roadway.
tempting
danger
to warn
motorists
and across
down
*3
in
making
some
ous situation on the
?
rule that
stopped
car
after
We
his
and
spections,
by
jury
east
this was
for a
to
tree
decide.
drove
parked
roadway.
this
the court
Plaintiff
submitted the
shoulder of the
a,
contributory
of
negligence
north
the fallen
to a
and the
distance
of
his car
short
Plaintiff,
presence
plaintiff.
j.ury
general
rule
thinking that the
found
tree.
applicable
motorists and know
to the situation is
in 65
stated
of the tree endangered
C.J.S.,
124,p.
Negligence,
Haven
be
follows:
ing-
would
driv
soon,
commonly
to
roadway
prepared
“Under what is
referred to as
over
ing
doctrine,
might
rain-had the
approaching drivers. The
rescue
conduct which
warn
very
contributory negli
stopped
dark.
It otherwise be considered
but
p:30
Shortly
may
after
not be
where about
P.M.
so considered
was then
person
injured
plaintiff
parked his
noticed
is
in
to
car,
attempting
he
save
north,
personal
coming
danger
others from imminent
car
from
the lights
Persons,
injury
justified
attempted to warn the driver but
or
are held
death.
Plaintiff-
being
assuming greater
protection
car
risks in the
time and- the
was not seen.in
they
be
operated
high
speed
life where
would not
at a
rate
crashed
human
stop in a
is not
and came to a
under other circumstances.
the tree
One
through
expos
guilty
contributory negligence
side
the tree.
the south
ditch on
injured,
ing
injury
the car- was
to
Wot
but
himself to
order
driver
proved
danger of
to be Father
rescue another from imminent
dámaged. This driver
Malden, personal
death, if,
priest,
same
injury
from
or
under the
Kelly, a'-Catholic
plaintiff
circumstances,
ordinarily pru
or
between
similar
conversation
After :so'me
an
or,
person
expose himself,
Kelly, plaintiff agreed to warn
so
might
and Father
dent
expressed,
coming
the south and Father as often
if the act of interven
from
traffic
performed
the tree to tion
circum
to
north side of
is
such
Kelly went
under
north. A bus
would
it rash
reck
stop
coming
stances as
traffic
make
prudent
stopped
judgment
ordinarily
distance
a short
-less
coming south was
time; plain persons.
per
though the
About this
This is true even
of the tree.
north
attempting
when-it
son
coming north and
the rescue knows that
a car
tiff saw
away,’ plaintiff, standing
great
involves
hazard
himself without
600 feet
to
500 or
attempted
road, began
certainty
accomplishing
the center of the
to
about
wave
though
proved
rescue and even
The driver of this car
arms.
to
thereby imperils
rescue
life.”
Haven.
he
his own
He did not see
be
supported by
That
author
stop
car
rule is
numerous
plaintiff in time to-
and the
ities as
noted in the citation of cases
plaintiff. .
testified
will be
driving
Haven
he was
hour;
particular
to the text.
call
attention
60 miles
that he
about .55
Rowe,
the-
plaintiff
following
he
cases: Rovinski
until was within 50 feet
not see
Cir.,
;
so;
692(3-6) Alford
right;
he then swerved to the
131F.2d
loc. cit.
Washington, 238
plaintiff
car
and struck
78 S.E.2d
skidded
who
N.C.
10);
920(9,
Pittsburgh
cit.
Guca v.
time reached the east
shoulder
Rys. Co.,
stop
car came
A.2d
367 Pa.
of the road.
north
to.
prevails
rule
in this
781(4, 5). The same
and
the.east ditch. Plaintiff
tree
in.
th?
City, Mo.App., 237
state.
v. Kansas
Doran
severely
near
car. He was
found
6).
912(5,
loc. cit.
S.W.2d
injured.
testified that he
It
contended that
cannot
noticed
Plaintiff
he
recover
driving
swerve
and left
because
abandoned
that,
place
approached
dangerous posi
assumed a
as it
he then ran for safe
road;
support
tion.
cited
that when
Cases
of that con
the ditch
he
ea§t
apply
shoulder,
tention do not
him.
to the situation in
on the
car struck
responsible for the
plaintiff in
where defendant
example:
Chise
For
case.
to,
rescued,
peril
sought
be
de
538, 252
the one
Thompson,
Mo.
nall v.
toward
recovery
at
fendant must be
because
denied a
attempt
begun
the rescuer after
cornpicking machine
tempted to clean a
that what
way
the rescue.11*” It will be noted
when a safe
dangerous
method
applicable
be
to this case.
follows Note 16
open
plaintiff in
him. The
on the
could not
himself
at hand
After
stationed
us
fore
means
travelers,
roadway
oncoming
approaching motorists without
warn
have warned
operated
position.
negligently
defendant Haven
dangerous
assuming a
plaintiff’s
It is not even con
injury.
car to
*4
Co.,
Rys.
Pittsburgh
of Guca v.
negli
that
tended
defendant
very similar
of facts
supra,
set
a
correctly in
gent. The trial court ruled
car was stalled
in this
Guca’s
to those
case.
jury.
submitting
question to a
street-railway
tracks.
approached. Guca
A streetcar
Miss Wolff.
point, the defendant
In its second
who did
attempted
motormán
to warn the
evidence failed to
contends the
The ad
life.
see him and
Guca-lost his
prove
that
was at
time
disposing
The court
ministrator sued.
agent
as the
or servant
accident
assuming
question
Guca’s
given
company.
stress is
Particular
dangerous
5)
said,
(4,
:
cit. 781
position
A.2d
80
loc.
to choose
the fact that
had
remain on
for Guca to
“It
reasonable
transportation
own means of
and- there
his
point under
vantage
as the best
tracks
company,
no control over
fore
catch
motorman’s
the- circumstances to
question
is a close
in this
movements. That
.collision,with the
attention -and thus avoid
However,
case.
we are of
consequent
injury to
automobile
for
decide.
Wolff,
remained
passenger,
who
Miss
employed
de-
That Haven
possible derailment
car, and
seated in the
company
manager
fendant
as a
sales
injury
consequent
car with
of the street
evidence
an admitted fact. There
negligence,
passengers.
‘It is
he
worked on
commission
that he
safety
own
se,
risk his
one to
independent
The evi-
contractor.
was an
another from
to rescue
or life in
justifies the inference that the com-
dence
City of Phil
danger.’
impending
Corbin
fact,
and,
right to control
pany had the
adelphia,
45
195 Pa.
A.
limited control
ac-
did exercise a
over the
Á._ attending meeting the bene Dexter -for call you receive orders- to “Q. And company, disseminating fit of the defendant company,- meetings from the those do sales information to the' defendánt’s sales Yes, you? sir. A. Why men. was he- there ? Haveri 'said he -where- n (cid:127)’meetings- A. weiie n the meeting's,-were-you not? -A. limits, yes. to hold order ' “Q.. “Q. n “Q. option Yes, particular permitted .'(And you you -were Now, And call n sir. them? toas '; it'was wheri meeting, is that n were when meeting that select going to -A. you grain dealers as-aresu'lt'of'the n given, you Within., certain' your _ [*] n attended - were hold-,these n own Yes, you had course,' . right? going these place you n sir. travel'by to the business of that car, had freedom tion Haven was brief, was on orders1 from his Inc., pany control of the DeKalb and record that at .the timé and received orders- from the defendant com holding meetings actions, to hold when “That -Defendant respect-to any method of the as lie owned and drovfehis own there is no- subject of. choice corporation says meetings. *5 company. and had physical to the direction and company attending transportation he showing 'in injured, Haven as to the place the So, movements right, in the Ass’n, ques place .this- car, chose, by fius, by in his 'own train.” you travel “Q. could to these And -the freedom of The fact that' Haven had your discharge meetings and duties transportation the method of choice as to fit, way you you? any saw couldn’t A. controlling: This was consid not' Well, exactly. not fulíy-and cases were reviewed-in Cor ered- by could travel or in “Q. You bus Co., supra,. Roofing Morgan der 166 v. A.. your car?' That’s true.' own- 6). 457, 458(5, S.W.2d cit. statement * “had' freedom brief that Haven in’the by if traín convenient “Q. Or place holding the meet to the choice a-s Yes, you? sir.” A. for by supported 'the ings” is not evidence. finding that evidence a Haven testified that From would “within'certain-limits” justified company right ohly had the had sucli be choice. inference subject that Haven to be drawn is- from Statement of control company. company right by the defendant had the made A control. Haven’s orders applied testimony meeting to determine whether the that the at Dexter test often relationship company. master and exists is servant had been ordered C.J.S.,-Master 57 Riggs Higgins, of control. and The case of right 341 Mo. 563b, p. Servant, 276. In was cited in-the' Restatement of Corder case. S.W.2d in the Agency, Language Defendant cited it brief. Subdivision of Sec. Law of opinion applied- Riggs when rule is stated that “A servant p. supports plain employed by perform in the case before us facts a-person master Further, physical Riggs contention. affairs whose tiff’s in his conduct service car, case, -the Higgins, con the driver of performance of the service is -that in the injured Riggs, subject was an.insurance salesman to control trolled. or opinion working statement on a commission. master.” That rule
rH [0] CO company give did refusal the defendant instruction 18 which discloses power proof.- over the covered the question of- control of burden of not reserve actions, must be The court -Higgins. The give of- an .instruction on proof proper niled burden form. against the defendant. justified refusing to,gi-ve court was says that company The defendant two such instructions. home trip his return to his Haven on error,- hereby no reversible we Finding for his work meeting had finished the judgment affirm the trial court. company that -time' and was and, scope employment within the All concur. therefore, company negligence.
liable Defendant cited On or for Rehearing Motion for Owen, 350 Mo. 168 S.W.2d Estes v. Court en Banc Transfer to case, 168 S.W.2d In agent in that court that the stated GURI Aid. PER mission for his returning home from a returning master. Agricultural Associa Appellant DeKalb See Brunk home from such mission. tion, Inc., rehearing in the motion Shoe 334 Mo. Hamilton-Brown banc, vigorously en transfer to the court (6-8), and cas asserts that' we- misinteri in1"our es there cited. (question preted misapplied fact ini rescue doctrine to the facts' the case. says court erred in that. the Defendant very witnesses was 55 mission to find point-on the merits. the instruction tree. ing of instruction in the evidence. tion was port roadway; William of-Haven’s Kalb a including a signed if the giving instruction No. for at least a verdict speed -evidence dark; negligence to without jury is thát Error was under control D. Haven.” The proper under the facts against agreed that rate that car at finding that “the found certain finding. miles there was half mile south of the fallen specifying gave the it defendants the to the circumstances. . submitted.-was the There speed, Association, Inc., had the circumstances also high activities roadway defendant rained; assigned, hour. 1. 2 which no evidence jury a defendant the circumstances. tree blocked the disposed facts to be true It is guilty only reason as- dangerous rate defendant De- no conflict of defendant roving that it proven. to-the urged authorized mentioned operation testified, straight instruc of this to neglir com sup- that giv All 'appellant took to warn who inflicted mitted on that issue. plaintiff, being not recover appeal, guilty of the statement have been more negligence was correct. the tion to presented fact that Haveh'was review the contended substantial evidence Appellant complains of our statement Was. The opinion danger negligent.” contested and instructions were sub- Appellant, the, fact on therefore, was intended to ’However) the on negligence. for review appeal, was that caused this' .travelers .on of Haven’s of question was not briefed that, specific a closed appeal Appellant volunteer facts-'discloses, defendant effect that “It is not even the'question injuries in the injuries however, negligent. -on the 'A In the and have stated that did apply prove book. statement this, appellant jury fallen trial of the' being negligent when he under the’highway calls our'atten- purpose .unless *' * *6 n to appeal..' Haven was We should found-'that says there'was tree, the guilty Haven’s [*] in- Haven issues case, can was our As on in is last'point briefed, Appellant and willful In de wanton misconduct. did error the trial we not refer to assigned complains court’s because injured, reply brief tion ’in the undertook assist and was cases cited number of are in total It point. We was held he could not recover unless support of'this theory appellant’s showing gross negligence. made It disagreement required to plaintiff was is liable obvious that Haven class cases hold any question wanton and guilty of law Haven show ‘ : the facts in the case under review. misconduct. willful plain- merit the motion the time his There hereby highest overruled. required to exercise tiff, was plaintiff was The fact that care. degree travelers of to warn any not in required to degree care way reducé by operators of motor cars on be exercised therefore, If, highway. caused
guilty of liable for the injured, to be Appellant, Mary KENNER, C. con- damage unless doctrine, The rescue negligence. tributory any issue in if material Emma E. AUBUCHON and Arthur J. determining plaintiff was whether only inso Wibracht, Respondents. contributory negligence. That guilty of No. 44309. ques- to a and the was submitted issue plaintiff’s favor. was decided tion Supreme Court of Missouri. Division No. 1. make brief reference to the Now we reply brief which were not cited cases July opinion. Cooper in the mentioned Teter, 15 S.E.2d W.Va. ,on placed a wrecker-truck *7 retrieye gone car which Plaintiff's road. .volun- off .decedent .traffic. skid- to direct A tarily undertook and killed him. The motor car ding not the driver of the p.nd the truck
owner director traffic killed
car which held that there no causal It was
sued. alleged negligence between connection obstructing high- traffic director’s death. That
way and bearing on the case before us skidding If the driver review. sued,, it would have been car had question of law.
a different three -cases cited other involved may of law which be illustrated
questions referring to one three cases. v. Babcock & Wilcox
Richardson 897, defendant-company’s em Cir., 175 F. heavy tubing by lowering
ployees were doorway. ropes through a Plain means Richardson, employee who was not an
tiff work, stranger without-invita but