*1 SUPREME OP MISSOURI, COURT Karguth v. Coal & Appellant, ROSE K. KARGUTH, DONK BROTH- COAL & ERS COKE COMPANY. Two, July 14,
Division 1923. 1. PRESUMPTIONS: Substantial Demurrer. Evidence: Substantial driver and of the coal was the servant of defendant; hauled the coal for from coal was ordered by purchaser; defendant the driver of the by so, purchaser directed defendant to haul to the and did presumption amounts to more a than mere the driver de- employ fendant’s servant and threw defendant’s at the time he upon plaintiff passed along a shovelful as she where sidewalk coal; unloading and, being substantial, question he was properly jury, submitted to the the trial court erred in assum- ing only presumption to rule that such evidence amounted to a testimony was overcome other the time was at general еmploy another, granting servant and in the and in theory. new trial on that 2. -: General Lent Servant: to Another. The fact that an em- ployee general employer not, is the servant of one does as' a mat- law, becoming prevent particular ter servant of another, may negligent who become liable for his acts. When employer general particular one lends his servant to another for a employment, servant, anything particular done in that em- ployment, employer must be dealt with as the servant of the lent, personal injury whom he is borrower is liable for a person negligently per- of a third inflicted servant delegated formance of the work hands. Appeal City from Louis St. Circuit Court.—Row. Charles RiMedge, Judge.
W. (with directions). and remanded Reversed appel- Joseph Strubinger Percy T. Werner lant. rightly
(1) defendant’s The trial court overruled at all the evidence to the evidence the close demurrer APEIL TEEM, Karguth v. &Coal jury. rightly go
in the case allowed the case to appear conclusively It in the did not subject negligent commission act *2 supported control of defendant. The entire evidence executing in the reasonable request inference the driver, of the defend- customer Baublitz made the purchased ant Donk he Brothers that the which placed acting in for, was, should be cellar, subject performance to the control of the of that work, 38 52 Minn. Co., 474, Donk Brothers. Waters v. Fuel E. 265; 81 N. 564; Hugh Co., French v. Boston Coal St. .Am. 237; Contracting 202 Co., Gain v. Nawn Mass. App. 4 Brackett 648; Lubke, O’Neill 94 Mo. v. Blase, v Murray, 209 Dec. Mo. Allen, App. 694; 81 Am. Simmons v. 138, App. Thompson 209Mo. Co., Hotel 248; Portland v. (2) Plain- 241 461. Grothmann S. W. 476; Hermann, v. right inference of the reasonable tiff’s case rested .the particular ques- work defendant over the of control draw from direct entitled tion which the prefer- except to the as that, in the to-wit, case, sending regular them out their drivers ence shown delivery engaged defend- in the of all the drivers first, regular drivers or whether customers, coal to ant’s its special direc- alike; treated were drivers, casual tions delivering coal to meet of to the mode as general at the received its were wishes of customers general and transmitted of the defendant office office regular that defendant had offices; to the branch indicated a dealings Baublitz, who its customer, prior delivery, special defendant had of mode enable the coal to a chute with the out sent occasions it had cellar; in the the coal driver right he where and how when, him as to control depositing cus- coal on its accomplish should premises. “The inference which should tomer’s driver, relations of the as the evidence drawn from not mat- the defendant were team, owner questiоns fact to be decided hut law, ters of Hugh Nawn Cain v. instructions.” jury under suitable 582 MISSOURI, COURT OF SUPREME
Karguth
Contracting Finnegan Railway, 202 Co., Mass. 237; v. (3) presumption Mo. where- A a rule of law, merely permissible as an inference is conclusion based proved or facts which have been to the existence as Judge of which there is evidence. learned Circuit sight (4) lost of this made no distinction. Defendant attempt that, show virtue of a contract between right them, Cora retained control over the performed driver to all his acts while in defendant’s prima-facie having service. A case been made out, burden shifted to the defendant to show right Dandridge over the control in the exe- particular cution wоrk hand, to-wit, putting of the its coal into customer’s cellar. It was in position a better than to know what the contract Perry App. was. Mo. Ford, 212; Knoche v. Pratt, *3 App. Holloway 194 Mo. 300; Dillon 82 Mo. Hunt, 150; v. (5) v. 243 Schield, 163. The S. W. circumstances and occupation negative tend Cora the conclusion independent that she anwas as to the work contractor, question. Wallace v. Southern Cotton Oil Co., 91 (6) having by Tex. 781. The defendant, an instruction jury upon judgment question asked the of the the whether justify drawing the evidence as to was such the of a present reasonable that the inference defendant, if at the authority time and the accident, of' to direct wagon the where and as to thе manner in wagon, pre- which the coal should be thrown from the contending give cluded that it error to’ the in- struction, or that there no evidence which it applicable. Gayle Foundry v. Missouri Car & Co., 177 Murphy Mo. 427; v. Mack, 239 S. W. 595, Hudson 596; v. Hayes App. S. 91 Hall, 152; 239 W. Mo. Bunch, v. 472; Ry. Berkson v. K. C. Cable 144 Co., Mo. Flori 219; Dolph, (7) v. 192 setting S. 950. trial W. court, jury authority aside verdict of the on the of Guthrie ground plaintiff’s prima- v. Holmes, and on the completely facie case had been overcome the defend- testimony, ant’s supposing fell into the error of APRIL 1923. 583 TERM,
Karguth Coke & pre- plaintiff’s prima-facie case a mere rested sumption arising out of the fact carried Company, sign de- Coal & of Donk Brothers v. that in fendant. It the fact Guthrie ovеrlooked, too, specific given been directions, chauffeur Holmes, pleasure not that the vehicle was a commer- plaintiff’s cial As case rested vehicle. a matter of fact, the direct evidence of the relations each other Company; their Donk Coal Coke Baublitz, Brothers Dandridge, customer; the circumstances driver, and particular ques- conditions under which work being plaintiff injured, tion was done at time the reasonable inferences to drawn therefrom. be ,v. Vaughan Gorry 221 v. Sons, 782; Davis & S. W. Boehmer Mann v. Stewart 977; Coal 241 W. Sand Co., S. throwing (8) 406. The act coal direct- Co., 243 S. W. ly pe- public from a across use sidewalk, negligence. Alexander v. constituted Star destrians, App. (9) deciding Pub. Mo. 601. In Chronicle Co., proper it for the in the whether was court first instance to a the issue as to whose work to have submitted doing getting coal from driver was through evi- the cellar door into the basement, bed only not be taken but must as true, dence light plaintiff, be viewed in the most favorable to must every only be taken to admit as true must fact every might reasonably de- but inference shown, be therefrom. Hall v. & Coke 351- Co-., duced 260 Mo. Coal Ry. Co., Mo..438, 365: Whiteaker *4 respondent. Rassieur & Pierce Jourdan, theory (1) founded on that a ease Plaintiff’s scoped employment his the defendant servant of injury. plaintiff therefore, The burden is, caused agency employment. both the 1 Labatt’s to establish Hays p, (2 Ed.) Hogan, 16, 54; sec. v. Master Servant Killroy Holmes, 233; Mo. 272 v. 1; Guthrie v. 273 Mo. Agency, App. Pulliam, Michael v. 215 310; 203Mo. Crane MISSOURI, SUPREME COURT OF
584
Kargutk v.
&Coal
Mayes
(2)
S. W. 763;
v.
Yellow Pine 143 N. Co., Y. 817; Hanatsek v. Wil- Supp. Ry. son, 146 Y.N. Cattini v. 1016; American Ex- press Supp. 196 N. 10; Y. Co., Grastataro v. Brodie, 179 Supp. N. Y. Supp. 324; Miranker v. 158 Williams, N. Y. (4) plaintiff 273. ership The offered no show own-
of the
or control
causing
over the driver
injury,
and
it is
considering
while
true
in
that,
a de-
plaintiff
murrer, the
is entitled to reasonable inferences,
jury
guess
not be
should
allowed to
as to the facts.
McCreery
v.
214
McGee Railroad,
543;
Mo.
v. United
Railways
(5) Although
RAILEY, 20, C. On 1921, filed City Court of the the Circuit St. Louis, Missouri, against the above an action named alleged petition her was a she citizen and resident city aforesaid; of corporation, that said defendant ais Missouri
engaged selling in the business of and de- livering residing city to customers said of St. November Louis; or about 1920, while she eastwardy walking along on the south sidewalk Eas- MISSOURI, OF COURT SUPREME
Karguth Coal public city, streets ton one of Avenue, *6 pedestrians, reached when she had for the usual premises Eas- point opposite known as 4762 a about engaged defendant in de- of ton a servant Avenue, attempting premises, to throw livering in said coal at transported, wagon, in which it had been a coal from opening, negligent- cellar a and into the sidewalk across violently suddenly and ly coal, full of a hurled shovel knocking inflicting against her down her, onto and par- injuries, painful set which out are. serious and specifies petition. latter The also cer- ticularity in said damages expenses claimed, and the incurred, tain $15,000. extent of on which the answer, in its amended defendant,
The every allegation truth of con- case was denied tried, charges plaintiff petition. It further in tained said wagon, being which was there the coal walked between coal into which the cоal from hole, unloadéd, and wagon being thrown, saw, when she or (cid:127)said was ordinary seen, could have care, exercise of unloading, wagon in the of of then act was said wagon, throwing, full of coal from into said a shovel said position danger coal and walked into a between hole, any making wagon hole, said without effort said wag- being coal thrown from ascertain whether was said giving any driver without of said no- on, and pass intention to between said coal tice of her hy ordinary or the exercise hole, saw, care, when she about to could have that said was seen, throw into shovel full of coal said coal hole. said negligence part charged It that the above acts plaintiff directly contributed cause whatever in- juries, any, if were her on said sustained occasion. reply pleaded
The matter in denied new answer. jury, case tried before a and the re-
The latter plaintiff in favor of De- $8,000. turned a. verdict filed motion for a time, due its trial. fendant, new TERM, APRIL y.
Kargutli Coal considering In trial court conclus- same, the reached the plaintiff ion furnish failed to sufficient evidence to injured plaintiff, show that driver, who the agent, or that he defendant’s service of injured. there-
at the time The court as to trial sustained motion a new defendant’s ground the sixth which follows: thereof, reads as overruling “6. The court instruction erred in the nature of a demurrer the evidence offered and requested by the the close all the evi- defendant at dence.” plaintiff appealed granting from the order de- necessary, trial
fendant it will and, hence, new be passing upon testimony fully consider case, presented the record. *7 plaintiff,
H. Baublitz, C. a witness for testified that place he was a lace his cleaner, curtain and of business was at Easton that Avenue; he had lived in the city 1914; of St. Louis since on that 20, 1920, November premises he coal delivered at ordered some from supplying Donk who had been him Brothers, with coal fifty for about or four months; three bushels lasted him weeks; about three ordered on he the coal telephone, above date over and at it was time put ordered it told them be the basement; up he Company, called the officeof Donk'Brothers Coal city agent; and referred to that the coal was de- day livered in a or two after said on order, to-wit, No- morning; 1920, vember at about ten o’clock in the that he was there when the coal was and saw delivered, wagon; brought delivery driver and that the driver a slip place into the business witness, latter and the read it. It had the name “Donk Brothers & Coal Coke Company” printed sign it. There was on a small at the wagon, front of the attached the latter, which said “Donk Brothers.” This witness further testified: “I bought this cоal Donk Brothers Coal and Coke Company paid Donk Brothers Coal & Com- Coke COURT OF MISSOURI, SUPREME
Karguth. & Coke dealings anybody bnt pany else with no it, and Company with in connection & Donk Brothers-Coal premises. My my delivery basement coal of that opening in an There is from the sidewalk. reached dividing reception steel- coal, for the sidewalk the build- eleven feet from abont door.” He said was ing between, about with a concrete walk line to the curb, eight testified, witness feet wide. On cross-examination from Donk Brothers Coal Coke that he ordered the coal Company, came the driver further testified: “When He door I him where cellar coal, there showed cellar.” into the and tоld to shovel coal was, further testified: said witness On re-examination opening, pointed in. “I told him where it went I opened it himself. The coal had been delivered put it in and there at other times. used a chute Some put nothing it in.” to with some didn’t. do how I plaintiff, Casper, E. testified, Mrs. behalf near Avenue, lived at 4764 Easton substance, she employed by H. accident; the scene of that she was C. de-^ was at his coal was where Baublitz, that she saw the coal 20, 1920; livered on November de- saw the from which it livered at that time, slip delivery saw the- that she delivered; asking receipt; brought it and she saw in, printed that “Donk Brothers” name; Baublitz’s receipted slip; for the handed the she plaintiff, slip that she drivеr; saw the Mrs. back *8 signed Karguth; in there when witness the that she was slip; there some time and hurt; that remained seemed she Company Brothers Coal & had that Donk delivered Coke place prior to that time; of business that she coal at this number of coal there a times. them deliver had seen “The ticket she testified: I seen cross-examination, On showing weight of coal on the amount the ticket, awas a certain amount of was and showed coal delivered load, place.” at the McCarthy
George that testified, substance, J. plaintiff get hit and the delivered, the coal saw saw TERM, APRIL Karguth Coal walking in the front of she was coal, shovel full as wagon; her her in the made side, hit
coal run that the coal that driver down; she fell the feet then about ten and wagon threw a the and same, in the bed of was on the plaintiff passing grani- full of as was coal, shovel from the that she came west her; toid which struck walk, was slip going that he saw and east; receipt that it had on it the name the coal; for the Company.” On cross-ex- “Donk Coal & Coke Brothers driver that he had seen the testified witness amination, shoveling plain- time before hole for some coal into that stoop around, had to turn that the driver hit; tiff was emptied get after he full, another shovel down and him a or two to do it take minute that would shovel; weight slip brought ticket. On was that the this; testified that the еxamination, witness re-direct “just before sidewalk; on the of the coal threw some way throwing into plaintiff all was he was hurt, doing wagon it was while from the the coal door ’’ hurt. that the was Karguth, plaintiff, testified in her Mrs. Rose K. earning was a widow, own she behalf, substance, confectionery per clerking establish- in a month, $75 housekeeper parents acting for her as foster ment, injured that she hurt in driver; the coal when establishment, about 10’oelock front of Baublitz approached morning. testified: “As I She further and the driver in the there, noticed a I throwing coal a coal waited cellar. I bed full and I threw the second shovel know until he go past, just passed I the coal saw and I went mе, throwing me on me back, hit chute when coal building. my against heavily my It hurt both side right I all over the side and me ankles and bruised internally injured.” injuries suffering, testifying her she After cross-examined, as follows: That and testified she up, back coal going coal saw the east, being hole in the sidewalk; into shoveled *9 SUPREME COURT OF MISSOURI,
Karguth v. Coal & Coke Co. wagon she saw the from the time she reached corner west of down to where she it, that struck; she stopped throwing while the driver was two shovel fulls in the that hole; the driver saw and her, that she walked on, and threw a shovel full of coal and struck her; that waiting get by; the driver saw her that she saw him looking at her; threw the second shovel full of coal in the she hole, started to walk between wаgon say anything and the hole; that she did not to him before she started cross, but she knew he saw at her, because looked her. On re-cross-examination, sign testified, that the which she on the coal saw wagon sign; posi- tin little she could tell what occupied passing; tion the coal driver as she was exactly she could when tell he threw the shovel of coal, throwing him in the act it; saw that he was fac- pick ing stooped up wagon east, the coal from the swing nothing would passing. south; she said to him about Hogan Doctors O. C. Raines and James J. testified plaintiff’s injuries, as to extent of but etc., necessary before the court it is not issues to set out same, at this time. then
Plaintiff rested, demurrer to the interposed by overruled the court. Thereupon following defendant introduced the tes- timony : engaged
Cora testified that she in the coal hauling at 2009 North business, and she had one two-horse Market Street; single wagons; and two she and her brother-in-law took orders themselves, got Donk Brothers fill the orders; that enough they own, when did not have orders their they hauling did for Donk that she Brothers; owned the that, question; her worked brother-in-law employed that she her, drivers; had the objection appellant, Over the insured. the court ad- wagon, policy mitted evidence the of insurance purpose showing solely for the that she was the APKIL TEEM, Karguth. Coal & *10 name further testified that
owner of the same. Witness paid wagon; the she was on the that “Cora Maas” paid part of part him her brother-in-law a a paid way worked; he what due that he was the him; was paid day, day, ac- he that cordingly wagon or half was if he worked sign money; said attached to her that the tes- further Brothers.” She read “Coal.—Donk tified in chief: bought Donk time from from time to You coal
“Q. your A. own- it to customers'? and delivered Brothers, Yes, sir. ‘‘ busy, wagon you it down sent wasn’t Q. When hauling A. sir.” Yes, Donk Brothers? do for 'driv- testified that the
On cross-examination witness wagon question room was the court dur- er of the any Donk ing contract with she never trial; that had her what driver of that she did not know Brothers; anything or nor what he was told did, do, she done that kind. On hauling she said re-examination, the accident. Brothers before Donk Harry Maas, L. brother-in-law of Miss McGinnis, charge November, 1920, that he was testified Maas; that he hired and fired Miss business Dandridge, him Tom and had that he knew drivers; couple driving weeks; Dan- that Tom for a while, day dridge driving ac- coal paid (witness) him that he cident; him, hired working' through he for Miss Maas; Miss that a,t they running trial; were the time they general hauling business; an coal and ice, goods; would they and deliver the that at times take orders he Brothers; for Donk would make deliveries bought from Donk on his own account Brothers coal only Dandridge given sold that the instruction it; any go yards, gave if him and Donk Brothers (witness) hauling, to do that he owned it; injury, day at that on the trial; thе time of the front end, Mass;” were the “Cora words, sign, close to back end Brothers’ Donk which COURT OF MISSOURI, SUPREME Karguth Coal & eight wagon for six or months. On on the had been city witness said he returned to cross-examination, having morning been after 20, 1920, of November on the got back that morn- away that when weeks; two about already gone Dandridge so ing, to Donk Brothers, and had accident, him until after he did not see for two weeks. not seen manager for testified that was PI. Marsh
William depot at 3746 Market Street, Louis, St. Donk Brothers’ Mr. McGinnis; that he knew Cora Maas and Missouri; they hauling in the coal business; that, were bought happened just us, Miss Maas “It tfiat gave occasionally them a to haul.” we load aiid *11 further testified: He “ you, for hauled what Q. When Miss Maas’s you give any, did the driver? A. Well, if directions, gave only I the driver was directions what kind of weigh coal to the amount to out load, load, them and put going the address the ticket where he was to.” testified
He further that about November 20, 1920, selling Maas; he was coal to Cora that his books show, 20, 1920, November of coal was H. by load sent tó Avenue; Easton Baublitz, 4763 that it was hauled Dandridge Dandridge for that Maas; Cora was not in employ Company; of Donk Coal & Brothers Coke given that the driver of the the amount of coal to weight load, the kind of coal to be delivered, the of weight same, a ticket and the address where the coal was only to be deliverеd; that the were above directions got. the driver
On cross-examination, witness that testified, defend- operated yards ant parts about thirteen in different E¡ast city St. coal Louis, and was delivered to operated them eighteen carload that lots; defendant teams own; of their that the used the driver question belong did to defendant, but to Cora although Maas, sign it had defendant’s thereon; that he Dandridge, did not have to call but the latter came to de- they fendant’s office to if see had work for him; TERM, APRIL Karguth. & Coke morning nearly every about Dandridge reported there wagon in just drive the would “he o’clock that seven something do. him to yard until had I wait something him what tell got I him, would when I Then yardman there we have a load, of coal to kind wagon. The his own load. loads him where to He tell Company, belongs Coal to Donk Brothers bought for de- Brothers by customer of Donk it is may livery it be. busines, at his residence or customary for them it is coal, a customer orders When yard put, or they in the back want it whether tell where gets They when tell in the basement. company’s telephone office.” They there. do not recollection that he no He further testified anything Dandridge saying he left with the load when Dandridge nor for witness, never worked coal; (witness) any money; pay that he did he ever nothing hiring drivers; of they that when the to with the do pre- given defendant’s came in drivers were alike; all treated ference; drivers of teams were regular that defendant has a scale with defend- ticket, given drivers; which thereon, ant’s name signed by gets customer, the ticket brings did not recollect whether D'an- back; dridge cash for collected his the as other drivers, same naturally hut he would do that. Niggeman, objection plaintiff,
Gus A. over the *12 permitted head-bookkeeper, as show, that Cora purchased during from defendant, November, 1920, coal of the of $311.07; value that she was for credited hauling with at rates; $22.44 various that November, 1920, she hauled sis loads; that for five of she said loads per was credited ton $1.25 for the other $0.90 load. foregoing
The very fully covers all the evidence offered at the trial. At the conclusion of the case whole defendant’s demurrer to the evidence was overruled. The trial court sustained defendant’s motion for trial,
a new 299 Mo—38. MISSOURI, SUPREME COURT OF
Kargutb. plaintiff appealed from the stated, as heretofore granting order trial. said new may important Such other matters as be deemed opinion. be considered in the will Appellant assigns I. error the action of the trial sustaining respondent’s court in motion for a trial new ground on the that defendant’s demurrer to the evidence should have been sustained at the conclusion of testi- -mony. appeal „ The herein was taken from , Presumption: ,. , -. respondent granting the order trial. new Substantial fully accurately The evidence has been Evidence. preceding
set out in the need statement, and again, except by way referred to of convenience, not he point of under and as illustrative consideration. judge opinion, trial a memorandum filed which following record, in the and states therein is found the. sustaining motion reasons a new trial, to-wit: authority of the latest “Under decision of the Supreme controlling which Court, is e., this i. court, presumption Holmes, 272 Mo. Guthrie liability prima-facie and the ‘takes case, flight appearance in evidence of the them- facts overcoming selves’ same. This decision holds this court, presumption as а matter of law, where the of non- liability direct showing overcome liability, must instruct the that the defendant is not Apparently, question liable. in such case, the as to n showing non-liability whether the facts are true, where contrary no evidence is offered other than that justifying presumption, cannot be submitted jury. The above case holds that it is then matter law for the court, still a matter of fact for ” this, jury. obliged amI to follow decision. In other words, the' trial court, as shown opinion
memorandum, tempting plaintiff, in at- prove driver of the coal was the servmt legal presumption defendant, relied the facts shown in her behalf constituted such driver *13 APRIL TERM,
Kárguth ques- delivery the coal in the of in servant dеfendant’s by court, then the trial drawn conclusion tion. The new as defend- passing trial, that, for the motion a. in testimony showing that Cora ant offered direct wagon, driver thereof and the said owner the of legal paid general the servant, as her been hired presumption ‘‘ ’’ plaintiff flight, left the took aforesaid recovery. any legal sustain a to without evidence by we Reverting record, the to the facts disclosed highway lawfully when public on a find that injured; produced before that she substantial jury tending the of in exercise show that she was the to of negligently the due and was assaulted care, question, full coal and in shovel of the coal with a Taking injuries therefrom. that she sevеre suffered testimony foregoing major premise, what a does as the time and disclose whether driver at as to temporary of defendant in servant of accident was the simplify inquiry, unloading this said coal? In order to argument, he conceded that for the let it sake question, the owner Cora Maas was Dandridge, her as same, had been hired general to haul the coal and, such, servant as undertook a Notwithstanding controversy. foregoing facts, did plaintiff produce substantial evidence before tending Dandridge, being in addition to show that general with her Maas, was, consent, servant Cora special permitted act a servant of defendant delivering coal aforesaid? H. Baublitz hire C. controversy testified that ordered the coal from de- telephone, fendant, over and told defendant’s em- ployees brought put basement; it was be that the driver weight slip with
with the coal defendant’s printed sign it; name small was on the front of said the words “Donk Brothers” there- on; that when driver came with the coal, Baublitz nothing into told to shovel cellar, Casper, putting an.employee it in; do with that Mrs. receipted slip and handed the Baublitz, back MISSOURI, OP SUPREME COURT
Karguth & Co. v. Coal Coke Dan- in chief testified that to dridge driver. Cora way paid worked. he worked If was way. got paid day day, further She a half or testified: bought from from Donk time to time You
“Q. your own customers'? A. to Brothers, and delivered it Yes, sir. busy, you down sent it
“Q. When the wasn’t hauling A. to sir.” Yes, for'Donk Brothers? do contract with further testified that she had no She defendant; did, that she did not what know anything nor or do, what he was told of that kind. to controversy. nothing hauling She knew about the of Cora Maas brother-in-law testified that he Dandridge, paid through hired and he was Cora Maas. gone This witness had been from St. Louis two weeks Dandridge before the not accident did see until after they hurt. was He at said, times, would make deliveries for Donk Brothers; that he tell would go yard, they gave bim driver to to defendant’s if any hauling, to do it.
Both Maas, Cora and her brother-in-law, testified Dandridge, driver, authorized to haul the undisputed above coal for defendаnt. The evidence is they present hauling were not when this done, being did gave not know done at the in- time, no structions to entirely the driver, and left the latter free to contract hauling with defendant for the of the coal as any might other teamster have done. On the other hand, manager H.Wm. Marsh, the of defendant, testified that Dandridge reported yard nearly every at defendant’s know, morning at about seven o ’clock to if defendant had hauling to do; 'that the books of defendant showed that coal was to be delivered to Baublitz at 4763 Easton Ave- nue on employed November 20, 1920; Dandridge that he Dandridge haul said coal; was to load the coal himself; that he told the driver what kind of coal to get, weighed; and to have it that he should take the weight slip, with printed defendant’s name thereon, and TEEM, APEIL Vol.
Kargutb number; the above at Baiiblitz the coal deliver where purchaser expect to show would ex- driver was that the unloaded; to be the coal signed receipt slip and returned or pected have this case. was done plain- foregoing that clearly manifest It is produced presumptions, relying but alone tiff was testimony tending to show substantial direct dear hauling job Dandridge was authorized to take person, aside from defend- that no other coal, and Dandridge, or to employee, to control assumed ant’s movements. and cоntrol his direct *15 foregoing we there hold of In view war which in the case substantial abundant plaintiff; finding jury the issues ranted especially, finding the driver of the coal scope acting within the the service employment in when he inflicted on his ’ complained juries herein. The record this case questions presented which was fact, mixed of law and province peculiar under solve, guidance of court. The above conclusion reached testimony, is us is founded substantial full authority accord with both reasion and as hereafter [Holloway (Mo.) shown. v. 243 Schield, S. W. 163 and (Mo. following; Fitzgerald App.) Cardwell, v. 226 S. W. Vaughn 971; v. & Sons, 221 S. l. c. 784-5; Davis W. Mfg. Winkleblack v. l. c. Co., 187 S. W. L. 97; 18 R. C. p. Cyc. sec. 26 244, 784; 971; & 970, pp. 1 Labatt on Master (2 Ed.) Agenсy, Servant sec. 18, 56, 60; Wharton on p. Agency, p. see. 468, 303; Reinhard on see. 552; 474, Tiffany Agency (Hornbook Series) p. on sec. 63, 269; Skyles Agency, p. 1 Clark on sec. 16, Puhlman v. 32; Co., Excelsior Cab Pa. 393; 259 St. Janik v. Ford Motor 180 Co., 557, Mich. N. 510; 147 W. 95 Wood v. Cobb, Kelley, 58; Mass. Brown v. 274; Smith & 86 Ga. Jimmo v. 255 Frick, Pa. St. 99 Atl. 353, 1006; Gardner, Pease v. 113 Me. l. c. Atl. 267-8, 550.] subject relating
The law clearly this and sue- , MISSOURI, OP COURT SUPREME Karguth v. Coal & Ruling cinctly page 784, in. 18 Case sec. 244, stated Law, as follows: employee general an servant is the
“The fact prevent employer matter of not, of one does law, as particular becoming who another, servant of from may gen- acts. it is true as a become And liable person proposition when servant eral one lends his particulаr employment, servant, for another for anything particular employment, in that must done be dealt with man lent, servant to whom he is although general person he remains the servant of the who lent him.” principle quotation of law declared in above Ruling Case Law Di- was followed other Holloway
vision the recent case 243 S. Schield, following, W. 163, and where authorities numerous subject fully this are considered and reviewed. The supra, other quota- authorities sustain the cited, above tion. foregoing,
It follows from the that the trial court setting committed error in verdict, aside the etc., and granting ground defendant a new trial, that a de- murrer to the evidence should been have sustained. Upon II. a careful examination of the record we during progress *16 find that no error was committed jury, legally the trial before the of which defendant can complain. jury The case was submitted to the given N~oError on liberal instructions in behalf of re- at Trial. spondent, given while those in behalf of properly declared law. The verdict of the toas damages sustained was not excessive.
The order is reversed and the cause remanded, with directions to the trial court grant- to set aside its order ing defendant a new trial, and to re-instate the former judgment jury. Higbee, entered the verdict of the G., concurs. opinion
PER The foregoing CURIAM: of Bailey, adopted opinion C., is as the of the All court. judges concur.