*1 сase are based Courts Our conclusions the instant on cited; the fact that common Appeals heretofore under decisions will of her deceased husband provisions law for the widow inconsistency presumed addition to dower unless there is are 1095, 2940, 1096; sec. two, J., 2339, p. p. sec. between C. not been abolished in this State on the fact that that rule has regards personalty. statute as 38,225 -judgment
In No. is reversed and cause remanded case imposed at $5216.18. directions the inheritance tax be fixed 38,142 Louis Cause is ordered transferred to St. Court No. Hays Gantt, JJ., Appeals. except All concur absent. Corporation, and Ronald Company, v. The Hoover Mattan Remie 38005. 166 Lagan, Appellants. (2d) S. W. 557. No. One, October Division 1942.
Rehearing Denied, December 1942. Overruled, Motion to Transfer Banc December 1942. *2 Rogers Mosman, Rogers, Bell & Clay appellant, C. Conrad Lagan.. Company; appellant, The Hoover Louis R. Weiss for Ronald *3 Gough Raleigh Swearingen, Brandom and W. O. H. H. Smith respondent.
n *4 punitivе, BRADLEY, damages, for actual and C.—Action injuries by an driven personal by being caused struck automobile Lagan, alleged corporate The by defendant servant defendant. damages against $20,000 both jury verdict actual returned for new judgment entered thereon. Motion defendants and appealed. trial and defendants was overruled p. night, m., dark, clear about 6:15 after Plaintiff struck City, walking in Kansas While across street January State Kansas, submitted, upon law of Kansas. The cause under proper alleged negligent equip failure with automobile headlights, approach sound- or failure warn of the automobile’s ing horn. separately general
Defendants answered plea denial contributory negligence, and the defendant Hoover further alleged servant, was not its as that term is defined in the law, not, if were, injured, plaintiff and that at the time on it. The in reply business mission for issue the put new questions in the raised answers. assigned (1)
Error is of an on refusal instruction nature of a evidence; (2) demurrer to the plaintiff’s on 1; instruction No. (3) evidence; on admission of (4) alleged on an excessive verdict. demurrer evidence raised questions: (1) three "Was support alleged negligence substantial evidence upon (2)
which the was submitted; cause guilty Was contribu- tory negligence as a (3) (as matter of law? and to defendant Hoover Company) Did the relation of master and servant between de- exist fendant Company, so, Lagan, and the Hoover plaintiff’s injury, acting time of within the scope employ- of his ment? assigned
Error is not insufficiency on the evidence to support negligence charged, hence the question, first under the demurrer, is: Was guilty contributory negligence' as a matter of law? might say evidence,
We that defendant no offered and that all the witnesses by plaintiff.. were called street, Kansas, City, State Kansas is an and west east street
and, place at the injured, where about 45 feet in walking width. Plaintiff was point north acrоss the at a street midway between 9th street on the east and 10th street on west. plow snow, The street was piled covered with ice and had snow snow and ice pile center the street. either side of the On the center vehicle tracks or ruts in snow and ice made lights by the west There were on east bound traffic. street State lights streets, street 9th and 10th there were no State but street on house, between 9th and 10th. going Plaintiff was No. was, north side of State street in front of which at the house there time, Lagan, parked driving automobile on the street. Defendant sedan, approached plaintiff, Chevrolet from the east struck lane, westbound traffic left fender. Plaintiff testified that when he looked both east and west he started street, skbt”; across the and that there was no “automobile “nretty ways again center” near the he looked both “and there was still sight”; looking no automobile in after the second time he *5 looking again, across”, he was did not look wherе but “started your walking; step”, pretty icy; you was “it had to watch slick thing and “the first I was a automobile in knew there man with an there”; front I that neither of me before even realized what was he
511 an any light heard automobile nor saw automobile from the time he left the south he curb until was struck that he heard no automobile warning of kind; horn or that he was hit and “that is all I remembered for a while.” Karnosky testified,
Mrs. Joe by deposition, plaintiff that was struck 20 of street; feet west 906 State that at the time, she “was coming steps” 906, down the at plaintiff and saw “struck automobile”; horn; that she heard no that she plaintiff went to “got up the street that when lights she car” the were out.
Joseph Novak, police officer, that he place testified went plaintiff where Lagan; was struck and talked to defendant driving said “he twenty was west on twenty- State avenue about object five miles an "hour. He said up' showed he tried prevent hitting it after he a man. seen was cut He fender, to the north curb, and he struck the man with breaking the left front headlight left out car.”
Plaintiff
a part
introduced
deposition
Lagan,
of defendant
who testified that his
selling
business was
sweepers;
that his
territory
City”
(Jackson County,
“Greater Kansas
Missouri and
Wyandotte County, Kansas) ;
day
that on the
plaintiff’s injury
p. m.,
(Lagan)
and about 6:15
driving
he
his automobile west
on State street with which
familiar;
street he was
that it
very
dark, and the color of his car
black;
that he came into State
street;
street
8th
straight
State
street is
from 8th
street
place
struck;
where
traffic,
there was no
the time
place,
street,
on the
car;
except
just got
that he
glimpse
impact.
before' the
further
testified
at the time his ear
struck
(Lagan)
driving
per
about 25 miles
“pretty
hour and was
well
toward the center of the street
parked
because
the old car
on the
side”;
applied
just
plaintiff,
brakes
soon as he saw
right;
and turned
dark;
to the
“that
it was
anything”;
couldn’t see
lights
good
that his
were in
condition and
on at
time.
p.
443,
Kansas, 1937,
Every
Sec.
Laws of
provides: “(a)
crossing
pedestrian
roadway
point
at a
than
within a marked
crosswalk or within an unmafked crosswalk at an intersection shall
yield
roadway.
right way
(d)
upon
all
vehicles
.
.
.
Notwithstanding
provisions
every
of this section
of a vehicle
driver
upon
colliding
pedestrian
shall exercise due care to
avoid
any roadway,
give
by sounding
and shall
warning
the horn when
necessary.
...”
Kansas, plain
supporting
As
that,
the contention
under
law of
guilty
contributory
tiff
negligence
as a matter of law. defend
Ry. Co.,
Atchison,
rely
Topeka
ants
on Buchhein v.
& Santa Fe
280;
Tretbar,
(2d)
Kan.
Pac.
Earhart v.
148 Kan.
*6
774;
4;
Williams,
241, 226
Hana
(2d)
Pac.
116 Kan.
Pac.
Crowder v.
berry
al.,
715,
The trial court a demurrer sustained “a mature case, hein held that plaintiff appealed. and the The court any taking person attempts who to cross a railroad track without safety, precautions riding for in an automobile his own while damages railroad another from the driving, who is cannot recover the on company injuries for in a with a train sustained collision train in time track, by looking approaching when have the he could seen danger.” have the to warned the driver of that a daytime; plaintiff In the the knew Buchhein case was due, for a train.” except train do watch nothing was and “had to defendant, Lagan, present case, nighttime, and In the it was in the anything”; and his ear was dark; said that see “it was couldn’t Also, black. snow ice on street and compelled give walking; and there was evi- to some attention to his Lagan’s lights on. We do not tending dence show were not to think supports that the case contention Buchhein It will guilty contributory negligence a matter of law. as support They not be not necessary to review other cases ’cited. do contributory negligence guilty contention that jury. question as matter of law. Such was for the Company Lagan Was the relation between Hoover Lagan’s negligence make Company such as to thе Hoover liable for n duty words, Laga ? an inde when on In other servant or into Company Lagan entered pendent contractor? The Hoover captioned a written contract on November 1937. The contract was Agreement”, and referred to as “Hoover Field Salesman’s Company. con Company the Salesman and the Hoover manager appointed Company’s tract district recited that secure promote “as an authorized salesman ... to Hoover Cleaning Equipment at of Hoover the sale Electric Cleaners agreed: By retail.” the contract the salesman assigned (1) only territory him To Hoover to products sell by him in entitled to follow leads be obtained work, through canvassing originally by him dividuals contacted office; (2) provided in the Hoover copies of such leads were filed money relating responsible for him to the sale all entrusted to (3) on all allow on his commissions products; Hoover net 10% products Company accumulate in the hands of Hoover sold to accumulated, $100 until a reserve fund for fund against any protecting possible Company losses purpose salesman; (4) permit Company through incurred acts of credited charge paid his account or back to all commissions within four months any cause products Hoover were returned prod- sale; all Hoover (5) responsible original after to be date all Company turn over him; (6) to delivered to acts products; sale new Hoover traded in on the oí cleaners used electric or sign Company’s name expenses and (7) pay all Ins own agreement or assume tlie name to contract dealer’s them represent or dealer liability in name of All traded in cleaners were obligation incurred. liable ±or any *7 agreed strictly to the Company, salesman Hoover of the property summarily dismissed.” will be policy adhere to such —‘‘otherwise on the covеnants the in consideration of The recites that contract agreed: salesman, Company the part of the consignment, for cleaners salesman, To furnish the on (1) portfolio, and a demonstration demonstrating, use in and to-furnish Hoover a of the cash retail on all pay price him of commission 18% com- except sales to commercial users on -which products sold 12% contracts made on Government paid; mission was in case of sales within the institutions located by delivered salesman to Government commissions; regular (2) territory received one-half to week all commissions earned the salesman each sales remit to “deducting weekly report, sales the as shown on his preceding week reverted within any products therefrom commission Hoover on necessary original sale, after of as well amounts four months date fund.” The contract building for the of salesman’s reserve 10, 20, on goes a of certain sales prоvide on to bonus 33%% “at could be cancelled provided And the contract that it volumes. ’’ time either cause. by party without over a one takes The “dealer” the contract is who referred to investigates rating a customer sale. He the credit of contract of sale, with the time, approves if he the contract purchasing on purchaser shows the dealer as the seller. Ohio, and, Canton, Company’s
The main office is at North Hoover City, among its Missouri. offices, branch is the branch office Kansas manager, a district City At Kansas office office clerk, manager, supervisors, a and other officers. district for an signed application One to become salesman wanting and, school conducted training if he attends the approved, interview salesmen, training Austin, Company. William who assisted knowledge of “a training testified that consisted basic dirt, gives the rugs, carpets, cleaning and it cleaners, principles, they go selling men а a home relative track to run on when Q. piece they . . Are directed how Hoover merchandise. . . A we in the home? . . .We have what demonstrate period time up built call a that we have over base demonstration best way that we to show our merchandise proper feel advantage procedure. . . . to the we teach him salesmen and Q. you Well, at At have standard to malee? A. this school do are the men that have attendance the conclusion school been expected go things over the they school, learned in the have yes. Not but exactly test, review and all.” required carry along
A salesman was with him at one least sweeper purposes. contracts, for demonstration He also had blank literature, etc. All Company. these were furnished The operating procedure was about as follows:
The prospective salesmen call on and, homes customers at their permitted, when they dеmonstrate make sweeper, a sale can, and frequently night demonstrations are the head so house may present. If made, a sale is has salesman the cus- sign tomer a conditional sales contract in quadruplicate. The customer and the salesman each retain a copy, and one copy the dealer goes
and one to the district office Company. The salesman gets who makes a sale sweeper stock room of the district or branch office or from the dealer and it. All delivers sales are reported to' the district office and a record all sales is made and kept*at this office. maintains department an educational regularly salesmen receive instruction salesmanship. are There *8 supervisors, supervisor and each- charge has aof certain number of salesmen, and get what is termed an override commission on sales made those group, in his supervisor’s and the pay depends on the sales by the made salesman group. in his
Lagan’s supervisor Treffinger, was Edward Y. who all testified that personal salesmen went leads; on that he told them that the lest way get to a ring lead was “to they got door lells till lead”; a that such way get “was to business”; lest that he met salesmen in group his “morning, afternoon evening”; Lagan that attended meetings these time”; “most of the meetings that at these there was an “activity check”; that Company furnished the salesmen cards upon which activities, he noted his such as the number contacts made, made, demonstrations etc., meetings at that these cards were Treffinger checked. further testified if that calls came to store prospective customers these calls were “rotated among salesmen”, and that when a given salesman was a call he expected it-, to attend to “if that a selling man is ten or twelve a Hoovers week he can do anything to”; he they wants that do not he make sales told them to in turn their equipment; that the use a salesman’s car was “not necessarily” in compensa included his tion-, that his (Treffinger’s) compensation depended solely on the amount of sales made in group. salesmen his On Treffinger Lagan’s cross-examination testified written contract “governed his relations with Company”; (Treffinger’s) that duties were confined assisting to' in the sale sweepers of the Hoover seeing that the complied salesmen contract; with their that he direction, never gave Lagan “any or order respecting use of knew, far as he not Company, he nor the so automobile”; that except that his activities the salesmen any “interested sweepers”; he that that sell Hoover he honorable and be conduct manner method” that salesman any “interested was not sweeper”; not, he did “to demonstrate or sell that might choose that did worked”; the hours that he way, “restrict any meetings. Treffinger further testified attend require to e for might plant, or work at an a man barber automobil Lagan’s a contract similar” “and Hoovers under to example, sell contract; Company two such salesmen at the time of had the trial. Company
Ruby Mott, operator switchboard supervisors give to year that she heard instructions testified would, their districts particular part salesmen as what to supervisors say times where that she heard worked; different canvass; appointments also meet make salesmen under them were ‘‘ different given times instructions to tell them. I was also at different they go demonstration, were they were on a certain salesmen (supervisors) they meet at definite so stated places them ’’ time. same effect as supervisor, H. a former testified Jones,
J. he, Treffinger supervisor, to what did. Jones said did " not, go ahead. go, a definite he told him to place if a man had If till ringing certain street door hells get I him to some told start required Also, to attend got in.” Jones said thаt all salesmen “at Hoover office meeting Monday salesmen held on each City, Kansas Missouri.” manager in
Roger Kelly, Company’s W. the Hoover branch office testified, City, years, on cross- and with the for 25 Kansas “Q. authority or control what- Now, you examination: do have Q. January, 1940? you A. Or ever salesmen? No. did over Q. Q. No, sir. Did had? A. No', sir, A. I never had. Never have *9 to right or to the salesmen you undertake to exercise order direct Q. depart- No, sir, A. I That was in some anything? do couldn’t. yours? Yes, ment than A. sir.” use an automo- specific requirement that a salesman
There was no the canvassing, of bile in but in some advertisements have cars” “must prospective stated that salesmen salesmen was A an automobile. was asked had prospective salesman contracts, carry along supplies, the blank salesman had to weight literature, sweeper, of etc., the the demonstrator in one packed was 16 20 The machine and the tools pounds. to handlе separate carton. carton and handle in another and The the and 40 42 inches width, 4 inches thick or carton was inches 1% depth, 16 inches in length. was about and tools carton machine have long. Indeed it would width, 20 30 inches and about inches ours.) (All italics are going been hard without a car.
516 contractor, or the independent the of owner obtain shield “To engaged person; ‘a and nt proprietor must, hrst, competent select nim calling; second, tüe committed to must independent m work danger unlawful; third, to be neither ‘attended witn others’ nor his own according to the to the contractor must be allowed do work subject by methods control the ‘as the results only owner all of these con of each and his work.’ "Without the concurrence of exist. ditions, legally the contractor cannot independent condition of by doctrine- only The decisions in State have not affirmed this this held, the adoption foregoing they of the have definition, but effect necessary it became to consider various occasions when legal requirements that rela of the of these absence one of thereby independent tionship prevented, of owner and contractor work just left if he did the responsible the owner was that. " 57, 145 14, l. c. City, on his own Kansas Mo. behalf. Salmon v. 16, S. (N. S.) W. R. A. 328. 39 L. master, 2, Agency, defines Section Restatement Law of of the servant, independent contractor as follows: service employs
“A master principal perform is a who another to right physical in his has to control the affairs and who controls or conduct of other in the service.” performance service person employed by
“A a master perform servant in his conduct in the physical performance affairs whose ’’ master. subject by to control right service is controlled or is to the independent “An contractor is who contracts another person by him other nor something do but who is not controlled subjeсt right respect physical control with to the other’s ’’ undertaking. performance in the conduct also, Hosiery al., 563,
See Real Silk Mills et 341 Mo. Barnes v. 837, 61; Haggard al., l. 341 Mo. (2d) 108 W. c. Skidmore v. et S. 729; (2d) 726, l. City 110 W. et Kansas Journal Post S. c. ux. v. Bass Co., (2d) 148 S. 552. Mo. W. answering question-
The principal factors to' be considered in independent given the Re- servant or contractor? are in Sec. statement as follows:
“(a) which, agreement, the master The extent control may work; exercise over the details of the
“(b) employed engaged whether one distinct or not the occupation business; or
“(c) whether, kind occupation, with reference to locality, usually employer work is done under the direction of specialist supervision; without “ (d) required particular occupation'; skill
“(e) employer supplies the instru- whether the workman tools, mentalities, place person doing work; and the work for 'the *10 “(f) length person employed; of time for which the
517 “ (g) payment, by job; the method whether time or regular “(h) part or not the work is a whether business of employer; “ (i) parties they, creating whether or not believe are rela- tionship of master and servant.” pointed case, supra (2d) It is in the W. l. c. out Bass S. [148 Re (quoted, supra, one of these factors from “no various 552]
statement) controlling, each, is in itself but in accordance with the given given weight.” circumstances of case will be Lagan Plaintiff concedes contract between and the Hoover directly “does not upon touch question vital whether the Company right Lagan reserves the to control or direct in employed making sales”, says the methods him in but the evidence operandi question as to modus makes —servant independent contractor? one of fact. supporting As independent the contention that was an con cases, tractor Company, among the Hoover v. cites Dohner 237, 767; al., Winfield Wholesale Gro. Co. et 116 Kan. 226 Pac. Publications, 369, al., Hurla Capper Inc., v. (2d) et 149 Kan. 87 Pac. Co., 475; 552; 588, v. Redfield Chеlsea Coal 136 Kan. 16 Pac. Mc 802, al., Craner v. Nunn et 129 603; Gloyd Kan. 284 Pac. Houdek v. al., 789, (2d) et al., 751; Haggard Kan. 107 Pac. et Skidmore v. 837, Metropolitan (2d) 726; 341 Mo. 110 W. S. Snowwhite v. Life Co., Ins. (2d) 718; Mo. 127 S. W. Vert Metropolitan v. al., Life Ins. 252; Co. et (2d) Mo. 117 W. v. S. Barnes Hosiery Real Silk Mills, (2d) 341 Mo 108 W. 58. S. Mills, present Hosiery case is more like Barnes v. Real Silk supra, However, than of the others. in that case contract specifically provided (2d) Ferguson, W. l. S. c. [108 60] salesman, should “at all direction times be free from the control or orders, of the Mills to' as when he” and there time should solicit Also, was no departed evidence that the provision. Mills from such stronglv indicate, there was no tending evidence in that case to so as present case, expected that a salesman was to follow instruc tions ease, as to have, how to sell. We in the set out the pertaining evidence place control of salesman as time soliciting Company, and the manner The Hoover of demonstration. brief, says “an authorized appoints that the contract salesman”, says companies appoint then that automobile has such agents”, thousands as case “authorized sales but that no agent Generally, thought an automobile “been to be a servant.” engage cars”, agent may sales take title to “traded in such, Lagan. independent His selling not so business of but taking specifically “traded prohibited contract him from title to ’ ’, independent prohibited engaging cleaners and thus him regard this we selling provision such. And contract business of *11 Lagan between important determining the relation and Company. y all these cases. purpose It could serve useful to review no The servant, and con subject independent and deal with of master decision, tractor, case, question was for it was in each where exist; not that the held relation did of master servant duty alleged merely bring a contractual of the servant to about was the em employer persons, relаtion between his and third the manner ployer right alleged had no servant as of control over the to proceeded which he to about such relation. bring fairly But in the think that the case we not be said do can evidence, italicized, evidence above considered with all does question fact whether the Hoover raise issue of on the as to Company right or controlled had the to control a salesman to employed making endeavoring methods to sale. Wil- make a liam Austin, training salesmen, the Hoover who assisted in said that up had a “base demonstration that have over a we built time, period of that we feel proper way is the show our merchandise to the salesman we procedure.” teach him that it will And be noted “expected that Austin said that to go salesmen were over ” things that they have ? learned the school. Go them where over Clearly, they the inference is in the homes made where demonstrations sweеper. And Ruby Mott, jury from the evidence of could the supervisors, occasions, find that oh directed salesmen where to go canvass or where to to make demonstration. And Treffinger Jones, they, evidence of occasions, on sales- directed go man to oh ring they got certain streets and door bells till in. course, Under most favorable which, ap- evidence rule plicable in support verdict, question we think of servant independent contractor? jury, was and we so rule. Was Lagan, at the plaintiff’s injury, time acting within the scope employment? of his Plaintiff contends that evidence raised Lagan issue fact was, as whether time, way on demonstrate a sweeper. The day of plaintiff injured the week Friday. On that p.
day, 2 m., Guy Patterson, A. who resided at 1511 Waverly, City, Kansas, Kansas and Mho had known years, about two called the City, Hoover officein Missouri, Kansas told “and them to over”; send a man that he “was in a interested Hoover sweeper”, and that рarty “the who promised answered that call to send a evening”, salesman that and that “around six o’clock the evening was fixed for the salesman place. to be” at his No one came on Friday, again. Saturday, Patterson called but what was said why Friday no' salesman came was excluded. went to Patterson’s home on Monday and demonstrated sweeper. Lagan’s street, home was 1516 .State some six blocks west of the place where was struck. Lagan testified that when “going I was- he, Lagan, home car struck plaintiff, dinner.. engagement time”; that he had an ío eat at the going supper home evening, intend but that he did not sweeper to demonstrate ’ ‘‘ ’ says that engagement had dinner. Plaintiff- fill I until after Lagan’s from the Patterson’s house was “on same route” Waverly place could so, where struck. .Such because is west State and north street. Demoss, place at the where policeman,
Trenmor *12 Lagan at said that struck a few minutes thereafter testified that and way to make plaintiff (Lagan) the time was struck “he was his a demonstration.” resided, struck,
Irene Williams at the time was that, injury, Lagan was shortly State street. She after the testified night”; in her and said “he a demonstration house was that making that “he it that. said was Peterson or Patterson —some name as such Well, go on, . . . he if police said that he he told the wanted to going he to to arrest him he wanted make bond because
going yet evening.” to demonstrate a Hoover that al.,
In Metropolitan Snowwhite v. Ins. Life Co. et 344 Mo. (2d) 718, by W. S. contended the defendant insurance company Nushy, codefendant, that the any was not on mission for case, the company at plaintiff, time auto- struck the by Nushy. question mobile driven A question there to the similar here was “Will indicated thus: fact Nushy the made a collection injury, his debit about two hours after plaintiff’s support an he, injury, inference that of time her to col- intended make such lection, is, Nushy’s such purposes collection one of the of trip?” It held fact support such would no't suсh inference. case, competency But positive evidence, is the Lagan of presently, which is ruled very that defendant was at the way moment of plaintiff’s injury on his appointment to fill an a sweeper, demonstrate could, and make a sale and whether question he was jury. or not was for the Company challenges Defendant Hoover competency of Demoss evidence and Williams as to what said where going
he was at the time plaintiff was struck. The contention is made hearsay Company. such evidence was the Hoover In Shelton Co., v. Wolf (2d) 947, Cheese 338 Mo. 93 W. S. l. c.
court said: employee agent
“Whatever said is corporation an or of a private respect to' and in the course of transaction, or in connection performance any act, accompanying with relating ‘or, writers, engaged, in which language he is then the old opus,’ he, scope employ- dum acting fervet while within of authority, transacting ment carrying or on or the business, or wоrk, doing evidence, of his master principal, is admissible in (the Latin principal declaration, against admission or an ‘ ‘ glows or iif the heat ’,
phrase, supra, is translated while work agent respect admissions ‘of action’); ‘declarations’ or but of the act the, after transaction, act or made occurrence to an against the transaction, principal. provable not completion of are declarations for the exclusion of evidence This rule is the basis contract, by a agent previously principal bound his of an that he had servant, the admissions of exclusion of evidence of as well as long another, negligence injury made alleged whose caused after hearsay and merely are (italics ours). the accident Such statements A principal. affect his person, cannot like those of closed, admit agent, after a rule that would allow transaction dangerous to be away rights principal, of his would be too ” Many tolerated.’ authorities are cited. “long after What Demoss Williams was said to However, accident”, very time thereafter. but in short situation, Lagan said to Demoss that, what concedes that it was a gestae in sense part is “not a res Williams spontaneous declaration”, evidence that such contends but time. After Lagan’s mind at the competent show the state of a report accident, Lagan supervisor went to make first to see *13 brief, says: accident, plaintiff, in the and were, that, indicates whatever his intentions “The evidence did not out, for indicates that he they were not followed the evidence also the supper, and evidence gO on after accident and eat the appointment with Patterson that keep indicates that he did not mind; Lagan’s state evening. What was of point So the issue is: solely mind ? intentions in the what were his intentions Those rested only proved be Lagan, way they (apart the could of аnd heart statement) bywas some manifestation from his own outward intentions, by mani by word. Since was no him of his deed or possible purpose not fulfill one of his by festation deed—he did either only by words.” left of his manifestation proof s—the evidence was may “Declarations S., p. stated: In C. J. Sec. a particular of intent or evidence as to the existence be relevant are ad mind of the declarant. Such declarations intention if, unless, particular existence of mental not missible fact; the declarations relate is relevant time to which state legal does not affect the intent and are to be excluded where are evidence The not direct result the transaction. declarations of asserted, merely to the circumstantial evidence as of the facts but fact. evidence is ad and material Such of some relevant existence missible, gestae, fact relevant but as a part of the res not as fact issue.” struck, а demon- at the time was Lagan had in his car etc.; 6 blocks contracts, street blank on State strator sweeper, He his home and east and south Patterson’s. testified that east supper, home for and it conceded that going* he such not think that the wholesome competent. prohibits We do law which agent admitting rights "away principal” of his will as, by ruling be violated evidence of D'emoss that the and Williams competent what he was going said to where and we so rule.
Complaint is also made ad mission of the evidence as to what' was said to him when Pattersqn up Company. general called the Hoover by The rule is "that state answering telephone ments made person place call to a business, though no personal identification is made such person, negotiations relating the course of to and in the transaction o'f admissible, ordinary company presumption business are person being such is authorized transact such for the business сompany goes . . . but the rule no farther.” v. Shelton Wolf Co., Cheese W. supra (2d) l. c. It S. was held in the Wolf [93 953]. answering case the statement of the person telephone manager person was not sufficient to establish such manager agent authority because the anof cannot estab lished his own We declarations. do think not that the admission of Patterson’s evidence error.
Lagan’s alleged negligence was submitted in No. 1. instruction It is in the particular stated brief that "the vice inherent this instruction negligence is that while it submits distinct acts of two alternative, namely, negligently failing to have the automobile equipped lights required by ordinance,' negligently with fail jury ing to a warning, sound it or require did submit to the jury to find facts from could be said what wav alleged negligent lights failure to equipped have automobile directly proximately caused the collision.” required to-lights, instruction set what out the law jury they Lagan’s then told the ear not so found that "was equipped”, negligence, neg- that suсh failure was and that such *14 struck”, ligence plaintiff'being "was the direct cause of to find then alternative, plaintiff. on, And the instruction went and in the to' jury they give tell the that if that "did not audible found warning* horn”, negligence, with his and that such failure was injured”, that "as a plaintiff direct cause thereof was struck and plaintiff. then any to find for We do no't think is merit that there assignment on instruction No. 1. Was the verdict excessive? Dr. H. L. testified that Reaier plaintiff injured; he saw at the hosnital about an he was hour'after he that was then "in considerable shock—a little dazed”: that was he X-rays night morning made, treated that for shock and next that crushed; leg "badly which showed the left there that were'six' 522 right, and that the three of the leg left fractures” of tbe distinct many cuts over wrist; had at the that arm broken
left scalp. body and leg at time of left plaintiff’s the condition of On Regier that “the dis- injury, Dr. said months after the trial, 15% swelling in when he great deal there in that he has ability consists down, hang is the result of leg or it gets up on the lets he at that time. Then has of the vessels which occurred inflammation joint simple reason for the joint in his knee and anide disturbance angulation of the fractures. great deal of at site that there is-a it the axis of By bending. when he walks I mean So disturbs that weight, and joints be in line to bear the joints. The have to why think he has much and that is the reason I so is disturbed that pain Q. A. permanent time. Is that a condition? at the Well, evidently doesn’t.”' getting isn’t better —it it or four Regier gave plaintiff
Dr. that he three further testified anesthetics; operations that general that he not certain fifty percent. yet required; was disabled would not here, “Q. timé, (plaintiff) evidence shows He I believe that plumber pipefitter—and he had to handle wrenches. — Now, ever, opinion, testimony. your is the will he be able to future, prior carry to take that work it like did up injured? A. attempts time he was For work that he to do totally requires leg, standing walking him on his is —I Q. fifty . . partial disability percent. mean . permanent you necessary knee and long keep Do remember how it was you long was, A. it ankle wired as in this treatment? How did sir, Well, Q. will be? said it was wired A. You or bolted. changed apparatus the cast—we had it in wire where it was eight through the weeks. Then I keep bored bone about tried without traction another cast. had cast oh about three or We months, constantly.” four plaintiff’s brief, injuries, pain, fairly In etc. are summarized leg places compound Plaintiff’s left follows: fractured six — testimony “Although good fractures. is that a was obtained result right big leg, there is a lump with the and a vessel or blood leg) (right gave plaintiff nerve a lot at the time of of trouble crooked; swelling . leg very trial. . . The left it had a much chipped it at the time trial. . . . A come piece bone had just two or three before the trial. Plaintiff has wear out weeks strength Slippers instead of He does in it shoes. not have the walking. ache, very legs does His suffers everv dav little sleep.” cramps pains night. with them. has It He affects his age yeаrs injury; pipefitter, Plaintiff at the time of per receiving employed hour; $1.05 per and was worked hours per injured Week week. Jan- $37.80 and therefore received He was
523 hospital of uary 19, 1940; injury; went to the at time left hospital 16, 27, *1940, and back June went to work October "as a watchman— sitting down”, at job per employer 77 cents hour. His paid regular wage immediately following for the months weekly his six injury. generally is payments
"It held in courts that ‘where state future be anticipated verdict, are to capitalized plaintiff and in a is ” present than Baltimore entitled no more their worth.’ Gill v. Co., 317, 97; R. 93, l. & Ohio 302 Mo. 259 v. Thompson, S. W. c. Mickel 991, 721, (2d) 348 Mo. 156 W. l. plain $37.80 S. c. 728. At week per earnings, prior injury, $1965.60. tiff’s annual After he were went back work injury, after per months cents received hour, per earnings and 36 hours week his weekly $27.72, earnings $1441.44. annual present of Under .Sec. R. S. of period $1965 worth an annual income of plaintiff’s over the expectancy $21,917.61, at age 47 was and the of an worth an period nual expеctancy $16,- $1441 income of over the of his $5844.70. 072.91. The difference is We not take into do account plaintiff paid regular wage this calculation that $37.80 per injury. week for the difference, first six months after had consideration, we taken the omitted factor into great, would not -be and the substantially $5844.70 difference correct. must
"It not upon be overlooked that table in Sec. 3522 is based requiring annuities of a for a duration, sum certain and definite upon part no recipient, earnings effort while future plaintiff duration, be could not definite in amount besides the earnings, fact that such continued to receive them for his expectancy, require Such, think, would work and labor. we dealing should be vexing question overlooked with the of ex Also, damages. cessive that ‘when the rule facts as injuries similar, to the inflicted though and losses sustained are identical, never uniformity there should reasonable ” judgments amount verdicts in the various cases.’ Mickel Thompson, supra (2d) S. l. c. W. [158 728]. v. "Onе of the by most difficult tasks to be an performed appellate justness court is (amount) the determination of the of a verdict Jackson, Co., Span action a tort.” v. & Mining Walker Coal (2d) 190, 322 Mo. 16 W. l. c. 203. S. Q. Christopher Chicago,
In (Mo. Sup.), v. B. & R. et al. Co. (2d) 449, years age S. W. was 49 earned $60 per injuries (2d) week. His are stated as W. l. follows S. c. [55 collision, : "As a of being result thrown from truck 452] right oblique impacted sustained fracture of the femur just otherwise, X-rays above knee. An examination made just something years injury, before the trial two after over right leg than showed two to three shorter inches *16 524 limited to thickened and its motion left; joint that the ltnee
the leg the of the were out of percent; of bones the extent and that inward. Plaintiff walked with alignment causing the toes to turn knee, easily tired twinges in the and limp, pain occasional suffered condition, standing walking. which prevents from or This continuously doing requiring heavy lifting being or manual labor And, time, length permanent.” is on his feet for considerable a loss of plaintiff in that case sustained it is the had stated a verdict $5,000 earnings the time of trial. It was held that in the $15,000 not excessive. uniformity as to of verdict opinion the rule We are $20,000 be if verdict of amount be better served the would here, $15,000. file within ten Therefore, will reduced to ' $5,000, the days filing a remittitur of opinion, after the of this rendition, $15,000 of its judgment be for as of the date will affirmed the cause remanded. judgment otherwise the will be and reversed Hyde Dalton, GC., It is ordered. and concur. so' C., adopted is foregoing opinion by Bradley, PER CURIAM:—The J., except Hays, judges All concur opinion as the court. the the absent. Rehearing.
On Motion for the BRADLEY, ruling is motion that C.—It contended existing defendants we “failed relation between question as accrued, action Kansas” where cause of apply the law of gave scope employment we ruling question on the Company. against Hoover defendant effect to evidence not admitted independent question, contractor? On the relation servant applicable. is It was law of Kansas it is not certain that the contract, and stated Kansas as pleaded contract was a that the Canton, at North main is Company’s office opinion, the Hoover the contract branch office the execution of Ohio, at the time of and when the contract City, Missoriri, maintained in Kansas Missouri, City, executed, Lagan a resident of Kansas in Kansas executed contract was could drawn inference important, because City, However, point is not Missouri. facts, conclusion would, justify the no Kansas case that under as to independent an contractor law, was Lagan, a matter of Company. Hoover Missouri, eases, Kansas opinion referred to In we or in of servant question on the upon by relied Wholesale v. Winfield these is Dohner Among dependent contractor. 237, which stressed Pac. al., 116 Kan. Gro. Co. et the motion. suit,was against the The these: Dohner case facts In thе are. damages salesman, travelling Harris, for company and its
grocery being car injuries resulting from struck personal on account Plaintiff company. trip grocery for Harris his first driven on granted trial court against botii defendants. judgment obtained a was, Harris theory that grocery company a new trial contractor, independent grocery company, place of grocery company’s business appealed. The a certain Harris to canvass oral It contract made Wichita. ‘‘to take orders covering 16 17 towns. Harris territory delivered”; money had been goods goods to collect *17 increase month, would pay but pay per was $175 his minimum his own Harris was to furnish sales volume. in certain the.event liberty “He was at to select pay expenses. and transportation his visiting the and times of transportation, routes manner of requirement that he only being chose; different towns ’’ The week. territory once each on the trade of the whole should call him a list gave samples and grocery company Harris with furnished week. territory preceding purchased of the merchants in the who con- independent an as a that Harris was held, law, It matter of Pac. gist ruling is in headnote of the stated tractor. [226 767] as follows: whose expense,
“A automobile at his own operates who an salesman except that shall employer, are not controlled his movements operation territory is, respect to the week, once each make his is not contractor, employer an so that his car, independent of the ’’ of the ear. injuries negligent operation answerable for caused distinguishable the facts is Manifestly the Dohner case required -the case the present case. In Dohner salesman was .not an ac- required keep was not instruction; to attend a school activities. report on his tivity card, up day called four times and be of the the door bеlls” supervisor ring him He had no who told “to hearing. no got a There was territory in until he merchants his wares him how to “base demonstration” drilled into as to necessary to review the It not prospective customer. will other Kansas cases cited. of the motion, that the evidence
In the contention is made Lagan said Williams, to what defendant witnesses Demoss struck, ad going, was not to where at the he was time that such should against Company, mitted defendant Hoover company. It that the have all said is true been considered at as to hearsay being remarks about such trial court made some evidence Company, jury not told dis as to defendant Hoover but the regard evidence, Company, such so far as concerned the Hoover only was, effect, for-all And not purposes. in admitted evidence trial, this, but, for a Company’s separate motion new the witness permitting erred in complaint that “the court made have he claimed to alleged which to relate conversation Demoss an plaintiff, injury to the Lagan after the defendant
had with the Lagan stated the defendant it claimed which conversation amake way to he, Lagan, on his Demoss that to the witness erred “the court sweeper”, a Hoover demonstration of alleged conversation relate permitting the Mrs. Williams to witness Lagan after the the defendant claimed to have had with which she claimed that it is- injury conversation' plaintiff, to the he, Lagan, Williams that to the witness Mrs: defendant stated ’’ sweeper. a Hoover way on his to make demonstration assignments error among the assignments And these brief, assignments in the these here, discussing the brief and in hearsay evidence which that only purpose said: “The Hoover Com- liability upon The attempt fasten admitted was ’’ assuming that hardly be blamed pany. In we can the situation Company. against the Hoover' evidence mentioned was admitted competency reargues motion, Company, in Defendant Hoover of Demoss and Williams. evidence Lagan’s showing that opinion, question ruled We part a constituent harmony declarations were in with and Also, the inference. warranting the same circumstantial evidence being made inference be drawn that the statements could make demonstration”, that he wanted way “on his to make *18 “ Hoover, yet sweeper going bond he was to because demonstrate of an evening!’were performance that in connection with the made may term the fall what we employer act for under would Wolf v. Cheese opus, explained of dum in Shelton rule fervet ease we 947, 952, l. 1129, (2d) 93 W. c. Company, Mo. S. that, opinion. might say under quote original cite and And we to Lagan intended facts, jury say when it would be for the supper. had demonstration, is, that whether before after make what Lagan motion, says ’said Company, being way to make demon on “his Demoss witness injury, was on a night plaintiff’s but stration” was not on the necessary on this the evidence later date. It will not be to set out from could be drawn point. say It is sufficient inference night injury plaintiff’s on the such was said evidence that shortly thereafter, opinion. as stated motion, inference, as stated Counsel, say no such It witness Austin. opinion, can be drawn the evidence of of the school” said that “at the conclusion true that witness Austin things they .go “expected over the the men attendance were all.” as “a review and But would have learned in the school” they taught? were go over what be the last time the salesmen would school, all forget close of they at the expected, promptly Would be stated ? taught Might jury draw the inference ? they Clearly think we so. overruled, ordered. rehearing is so
The motion for should Hyde Dalton, CC., concur. C., adopted foregoing opinion Bradley, PER CURIAM: —The J., except Hays, judges All the concur opinion the court.
absent.
Mary Woodbury, Appellant, P. Life Mutual The Connecticut v. City Corporation, and Kansas & Title Company, Insurance (2d) S. W. Corporation. 38163. 166 Company, Trust No. 552. One, 1942.
Division November Rehearing Denied, December 1942. Overruled,
Motion Transfer to Banc December 1942.