Smith Ex Rel. Smith v. FineSmith Ex Rel. Smith v. Fine
It is true defendant did not formally interpose the defense of insanity (nor any other, for that matter), but the jury was bound to observe, and in the very nature of things, be influenced by, his demonstrations which could only be interpreted as manifestations of a disordered mind. We think the state was not required to remain silent, and permit such exhibitions to go unchallenged and unexplained when it had an abundance of proof to show their real nature, for this court has said, “Like flight, the feigning of a state of mind which in itself, if genuine, would constitute a defense to the charge or, at least a bar to the trial, is indicative of a disposition to evade justice, and tends to prove guilt.” [State v. Stevens, 242 Mo. 439, 147 S. W. 97.] [588] Feigning of insanity by a defendant may be shown on the theory that it amounts to a species of fabrication of evidence, and as indicating the defendant was himself conscious of his own guilt, and that his defense could not be made out by a production of the truth. [Waller v. United States, 179 Fed. 810, 31 L. R. A. (N. S.) 113.] “It is competent for the commonwealth to prove that the accused, after committing the act, or having been accused of it, fled or concealed himself, or was guilty of any conduct inconsistent with his innocence. If the appellant did feign insanity, the jury had a right to infer from that fact that he, having no meritorious defense, proposed to fix up a spurious defense, as the only available one against the truth of the charge; and, such conduct being inconsistent with innocence, it was proper for the jury to consider it for what it was worth.” [Basham v. Commonwealth, 87 Ky. 440, 10 Ky. L. 434, 9 S. W. 284.] We think the court was fully justified, and exercised a sound discretion, in permitting the state to reopen the case for the purpose of receiving the evidence about which complaint is made.
The other errors assigned are not likely to recur on another trial, and so will not be treated. For the error noted, the judgment is reversed, and the case remanded. All concur.
Division Two, December 6, 1943.
The accident occurred about 8:20 a. m. May 16, 1941. Plaintiff, Marjorie Smith, about 15 years of age, was struck by defendant Fine‘s automobile while on her way to Blewett high school in St. Louis as she was crossing Delmar avenue from the south to the north between Belt and Union avenues, a long block. Delmar is an east and west street. Union avenue intersects Delmar and Belt avenue extends north from Delmar. It is 79 feet between curbs on Delmar and street car double tracks are in the center of the street. There are two street car safety zones (a north safety zone for westbound and a south safety zone for eastbound street railway traffic) at the point involved, each zone approximating 90 feet in total length. They are not directly opposite each other. A short distance of the west end of the north zone is opposite a short distance of the east end of the south zone. The evidence established it was 22 feet 10 inches from the south curb of Delmar to the south safety zone; that the safety zone was 5 feet 9 inches wide; that it was 1 foot 1 inch from the safety zone to the
The traffic was heavy when plaintiff reached the south curb of Delmar. She, after waiting, proceeded north and stepped upon the south safety zone within a few feet of its east end. Crossing the south safety zone, she looked west and observed several cars, the nearest being about 130 to 140 feet west and approaching along the eastbound or south car tracks. She stepped off the safety zone, onto the street, and, proceeding due north, took four or five steps, traveling 10 to 12 feet, when she was struck by Fine‘s automobile as she reached the south rail of the westbound or north car tracks. Defendant Fine was operating his automobile at a speed of between 15 and 20 miles an hour. He could stop in 20 to 25 feet. He sounded no warning of his approach. After stepping off of the safety zone, plaintiff observed the westbound traffic approaching along the westbound car track and did not again see Fine‘s approaching automobile. She was walking at an ordinary gait, neither loitering nor running. Plaintiff‘s mother testified that Fine informed her he did not know how the accident happened; he did not see plaintiff. This was denied by Fine.
Defendant Fine testified, among other things: He saw plaintiff standing on the safety zone when about 100 feet west of her. When he was about 4 or 5 feet from plaintiff, she “made a dash” in front of his automobile to cross the street. He tried to turn to the left to avoid plaintiff. Before he could sound the horn or stop, the right front headlight struck her when she reached, as we understand, the north rail of the east track. He stopped within 25 or 30 feet.
Defendants contend plaintiff made no submissible issue of Fine‘s negligence under a humanitarian duty to stop, the only issue submitted. The argument is that since, under plaintiff‘s evidence, defendant Fine was proceeding along the eastbound track and plaintiff was struck at the south rail of the westbound (north) track, more than 11 feet north of the south safety zone, and the automobile could have proceeded east between plaintiff and the south safety zone without striking plaintiff, plaintiff was in a position of imminent peril only after the automobile was turned from the eastbound track toward the north (wrong) side of the street and there was no evidence establishing where and when this occurred and, consequently, none under plaintiff‘s theory that the automobile thereafter could have been stopped in time. Defendants cite many cases. Humanitarian issues pivot on a defendant‘s ability or inability to avoid the injury subsequent to the creation of the injured‘s imminent peril,
The instant plaintiff was struck while at the south rail of the north track. Her testimony that she proceeded north at an ordinary walk and defendant Fine‘s testimony that plaintiff “made a dash”
Allen v. Kessler (Mo.), 64 S. W. 2d 630, 632, sustains us. There plaintiff saw the approaching truck 130 feet away traveling between the curb and street car track and gave it no further attention. Plaintiff was next aware of the truck when it struck him while he was about midway between the rails of the street car tracks. The court held that, notwithstanding the record did not disclose where the truck operator changed its course, the record did show that its direction was changed at some point within the 130 feet, and the jury could find that there was a time and place when and where the truck operator should have taken the necessary steps to avoid the collision. This is sufficient to rule the instant issue. The court might have but did not base its holding on the testimony (l. c. 632) of a policeman that the
Defendant National Clothing and Furniture Company‘s liability rests upon the doctrine of respondeat superior, which it asserts was not a submissible issue under the evidence.
The automobile was owned and operated at his own expense by defendant Fine. Fine had been and was “working for” the National Company as collector and salesman for over two years. He was paid a weekly salary. He would report daily at the office at 9 a. m., would be given a number of cards, 60 or 70, with the names of persons thereon from whom to collect, would proceed in his automobile to see the persons named and note their payments on the proper card, and the next morning would report and account, returning the cards covering the previous day‘s work and receiving new cards for that day‘s work. This is the work for which he received his salary. There were four other collectors, each of whom had an automobile and used it in making collections. He believed the National Company was under the impression he had an automobile when he applied for work. He told them he had an automobile. The National Company told him to use it in making collections and following its instructions he has used an automobile for making collections throughout his connection with the Company. At the time of the accident, Fine was not proceeding in the direction of the National‘s office, [765] which was north and east of his home, but was proceeding west and south from his home. He was on his way to Newstead avenue to see a customer to make a collection for the National Company and then proceed to the National‘s office to report for the day and turn in the money. The accident prevented him carrying out his plans. After the acci-
On cross-examination Fine testified: He maintained his automobile, purchased the gas, oil, license, et cetera and was not reimbursed therefor at times, on a slow day, he might ride the street car or bus. He was never given instructions that he had to show up at work with an automobile. He was not told who to see first; that is, in what sequence those named on the cards were to be seen, but: “Q. Did you lay out your own route? A. No, sir.” He used the automobile for personal purposes; if his wife telephoned him, “and I have time,” he would take her wherever she wanted to go. Asked if he ever stopped to drum up business, he replied: “That is part of my job“; and that he was free to see anyone to “stir up business.” He was of opinion he had made collections on all cards delivered to him May 15th. He used his own judgment. If he did not make the collection one day, he made it the next. He knew “my stuff by heart.” If he could save a little time and not have so much for the next day, “I can make that stop of my own free will.” He said he was not supposed to account for money received every morning but was supposed to turn in a card with his collections; that any collection on a card would be turned in the next day but it might be two or three days before he turned it in if he made a collection for which he did not have a card, and on a heavy day he might “hold out” $10 or $20, reporting it later. The National Company would not know of the collection unless he had a card. He had no card that morning for the customer he was on the way to see. He was never told not to make a collection without a card. He thought May 16th would be a heavy day and if he could make this particular collection “I wouldn‘t have to work so hard that particular day.” He testified he was only trying to accommodate himself and save on gasoline; that his time was his own “as long as I do my work, bring in the money and bring in the business.”
A number of our cases quote and apply to like issues the definitions appearing in the Restatement of the Law of Agency, Sec. 2:
“(1) A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
“(2) A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the
other nor subject to the other‘s right to control with respect to his physical conduct in the performance of the undertaking.”
See also Sec. 220, ibid; Skidmore v. Haggard (1937), 341 Mo. 837, 110 S. W. 2d 726, 729; Mattan v. Hoover, 350 Mo. 506, 166 S. W. 2d 557, 564; and consult cases cited in Pfeifer v. United Bakers Supply Co. (Mo. App., 1942), 160 S. W. 2d 795, 800 et seq.
We think it was for the jury to say whether the relation of master and servant existed between the National Company and Fine. The National Company may not have exercised actual control over the physical conduct of Fine in the performance of his work. The National‘s Company‘s right to control (right to direct) — is an issue not to be slighted. It is the crucial question. Fine‘s time may have been his own as long as he did his work but National Company gave him 60 to 70 cards daily, and he was at the time (as shown hereinafter) about his work on a heavy day. He may have been trying to accommodate himself and save gasoline but it was also for the jury if likewise he could have saved on gasoline et cetera had he put off the trip until the next morning on his way to work. They might have considered that such postponement would have prevented his working “so hard” on the heavy day of May 16th. We understand he incurred no [766] liability if he failed to report. He could be discharged. He could quit. In other respects his employment was regular, continuous and on a weekly salary basis. He had been at the work for two years. He was not employed at an agreed compensation for a specific job. He was not paid a commission on collections effected. He reported daily to receive cards. His territory was limited. His acts were under supervision. It does not appear that the National Company‘s collectors or Fine were engaged in the distinct occupation or business of collecting accounts. Fine was not collecting for other companies. His work was not of such a nature as to require a specialist over whom the National Company would exercise no supervision or right of supervision. The work was part of the National Company‘s business, an ordinary, every day and essential incident thereof. The National Company did not furnish the automobile or pay for its operation but the jury may have considered it had been taken into consideration in the weekly salary. The National Company told him to use his automobile in making collections and following that direction he had used his car since his employment. ” ‘It is not the fact of actual interference with control, but the right to interfere that marks the difference between an independent contractor and an agent or servant.’ ” Riggs v. Higgins (Banc), 341 Mo. 1, 106 S. W. 2d 1, 3, quoting with approval Aubuchon v. Security Const. Co. (Mo. App.), 291 S. W. 187, 189. Corder v. Morgan Roofing Co., 350 Mo. 382, 166 S. W. 2d 455, 457; Mattan v. Hoover Co., 350 Mo. 506, 166 S. W. 2d 557, 564. Annotations, 140 A. L. R. 1150; 112 A. L. R. 920; 87 A. L. R. 787; 60 A. L. R. 1163; 57 A. L. R. 739. Consult Annotation,
Whether Fine was at the time acting within the scope of his employment was also for the jury. Usually, a servant using an automobile, either his master‘s or his own, in going to and from his place of work is regarded as acting for his own purposes and not as engaged in work for his master. Pesot v. Yanda, 344 Mo. 338, 126 S. W. 2d 240, 244. The instant situation is the reverse of those existing in cases where an employee deviates from his duties and enters upon a personal mission. Here, if the doctrine of respondeat superior be considered not applicable while Fine was going to and from work, Fine at the time in question had deviated from his personal mission of going to his employer‘s office and had entered upon the performance of a duty owed his employer. Fine knew “my stuff by heart.” He was never told not to make collections unless he had a card. He was at liberty to make stops of his own volition. Employees are not discouraged from being attentive, alert, and energetic in their employer‘s behalf. Any accommodation accruing to Fine for making the trip prior to reporting to work was incidental to the discharge of his duties as one of the National Company‘s collectors. Otherwise, no occasion existed for his making the trip. At least the jury could find that it was made on behalf of Fine‘s employer. Mattan v. Hoover Co., 350 Mo. 506, 166 S. W. 2d 557, 566[9]; Corder v. Morgan Roofing Co., 350 Mo. 382, 166 S. W. 2d 455, 458. Observations subject to being considered out of harmony herewith in Reiling v. Missouri Ins. Co., 236 Mo. App. 164, 174, 153 S. W. 2d 79, 85, are disapproved.
The admissibility of defendant Fine‘s testimony at the trial that at the time he was going to Newstead avenue to make a collection from a customer of defendant National Company is questioned by the National Company on the ground (a) admissions by an agent subsequent to the transaction are not binding on the principal and (b) were conclusions as to his intentions and without probative value.
Cases cited by the National Company holding extrajudicial post rem statements or admissions of an employee inadmissible against his employer are not in point. We are concerned with Fine‘s testimony in court, judicial, not extrajudicial, statements.
The National Company says Collins v. Leahy (Div. I, 1940), 347 Mo. 133, 146 S. W. 2d 609, is directly in point that Fine‘s intentions were inadmissible against it. Concerning a regularly employed chauffeur‘s testimony that he was headed toward a college “to get
Plaintiff‘s mother, who acted in plaintiff‘s behalf, testified in detail, over objections and exceptions, to statements made by Fine sometime after the occurrence that, in effect, he wanted plaintiff to have what was necessary in the way of medical attention and that,
We conclude plaintiff‘s contention that this testimony was admissible as an implied admission against interest of negligence and liability is not well taken on the record presented. There is language in Morrow v. Orscheln Bros. Truck Lines, Inc., 235 Mo. App. 1166, 1177, 151 S. W. 2d 138, 143[3], supporting plaintiff‘s contention that the evidence with respect to medical attention was admissible; but the court was there discussing evidence introduced before the Workmen‘s Compensation Commission and the instant contention was not presented or ruled. Brown v. Wood, 201 N. C. 309, 160 S. E. 281, 283[3], and Briggs v. John Yeon Co., 168 Ore. 239, 122 Pac. 2d 444, 450[9], differ factually. The admissibility of the statement with respect to medical attention against defendant Fine may be close but, in the circumstances, we consider the statement an offer of remedial assistance. State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 154, 101 S. W. 2d 14, 19[7], states that an argument turning against a corporation the fact it had voluntarily furnished necessary medical, care and attention at considerable expense as an admission of negligence and liability was unfair and highly prejudicial. Winter v. Van Blarcom, 258 Mo. 418, 423[1], 167 S. W. 498, 499(1), held proper the striking of testimony that defendant stated he would do all in his power to help and would be responsible for all debts and not to worry, considering such testimony as an offer to pay for the treatment of an injured boy and not as an admission of liability. The testimony with respect to Fine‘s arrest was incompetent and should have been excluded. Hoffman v. Graber (Mo. App.), 153 S. W. 2d 817, 819[1]; Marrah v. J. & R. Motor Sup. Co. (Mo. App.), 165 S. W. 2d 271, 276[6].
But plaintiff says defendants may not avail themselves of the situation because the objections interposed were not sufficiently specific; that is, there was no objection on the ground the evidence was prejudicial. Span v. Jackson-Walker C. & M. Co., 322 Mo. 158, 178(VII), 16 S. W. 2d 190, 200[19], holds an objection that evidence is immaterial does not reach the contention upon appeal that such evidence was prejudicial, reasoning if not material it could not prejudice. Generally, objections should be sufficiently specific to inform opposing counsel and the court of the objectional feature that an opportunity, if any exist, be afforded for its removal. Rockenstein v. Rogers, 326 Mo. 468, 486, 31 S. W. 2d 792, 801[1]; Scott v. Missouri Pac. Rd. Co., 333 Mo. 374, 387[12], 62 S. W. 2d 834, 839[14]; State ex rel. Randall v. Shain, 341 Mo. 201, 211[3], 108 S. W. 2d 122, 128[4]. There is a modification of this rule in instances where the evidence is so clearly incompetent that there exists no objectional feature for removal to make it competent. See State v. Baldwin (Banc), 317 Mo. 759, 766(II), 297 S. W. 10, 12[3, 4]; Houchin v. Hobbs (Mo. App.), 34 S. W. 2d 167, 172[5];
Plaintiff‘s assertion that defendant National Company did not object to this evidence is refuted by the record which shows that counsel interposing the objection appeared on behalf of defendant National Company as well as defendant Fine.
The other issues presented can be so readily obviated at a retrial that we need not discuss them.
The judgment is reversed and the cause is remanded. Westhu‘es and Barrett, CC., concur.
PER CURIAM: — The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.