Ex Parte Dick Bros. Brewery Co. v. Ellison

Certiorari. The record brought here by the writ is that of the Kansas City Court of Appeals in Vaughn v. Wm. F. Davis Sons et al., 221 S.W. 782. Vaughn was struck and injured by an automobile truck in use for the delivery of beer and soda water in the City of St. Joseph. He sued W.F. Davis Sons, of St. Joseph, and Dick Brothers Quincy Brewery Company, an Illinois corporation, and had judgment. The brewery company, relator here, alone appealed. The Court of Appeals affirmed the judgment.

Relator contends the opinion rendered in the case is in several respects in conflict with decisions of this court. One of these contentions goes to the ruling that there was sufficient evidence to take to the trial jury the question whether relator was liable for damages resulting from the truck driver's negligence. This makes it necessary to set out the facts stated in the opinion of the Court of Appeals in connection with the ruling mentioned. These facts are as follows:

"There was no question but that the driver was in the course of his employment, driving the truck in the business of delivering beer, for which it was intended and used; nor is there now any contention over the fact that he negligently ran plaintiff down and injured him permanently and seriously. The great contest is over the question whether the relationship of agency or master and servant can be said to have existed between the driver and the brewery company so as to render the latter liable for the former's negligence. Or, in other words, is the evidence such that the jury can say such a relationship did exist?

"The record discloses that at the time of the injury, and for four years prior thereto, Davis Sons were distributing agents for the brewery company in the City of St. Joseph, and were also engaged in the manufacture and sale of soda water. They occupied a certain building at Main and Isadore streets on which the brewery company paid the rent, and in it were stored the shipments of beer which the brewery regularly made to St. Joseph. In it the brewery company maintained a refrigerating plant and paid the expense of refrigeration, so as to keep the beer at the proper temperature until it was delivered to the saloons and possibly elsewhere throughout the city. The brewery company paid for the wholesale and retail liquor licenses which were required of Davis Sons. The brewery company fixed the price at which the beer, which Davis Sons, distributed, was sold. Davis Sons sold and delivered the beer from said warehouse or depot, collected the money for it, deducted their commission, and remitted the balance to the brewery company, and the empty barrels and cases were returned to it at Quincy at the latter's expense. In addition to distributing beer, Davis Sons collected rents and notes due the brewery company, representing it in making contracts whereby the retailer agreed with the brewery company to handle the brewery company's beer, and in the buying of saloons for the brewery which were licensed in the name of individuals, but which belonged to the company. The compensation Davis Sons received for all these things was the commission they got on the beer sold.

"Formerly, the beer had been delivered in wagons furnished by the brewery company, but about a year before plaintiff's injury the brewery company in lieu thereof sent the truck in question to be used in the delivery of beer by Davis Sons, and the purpose was to ``expedite the delivery of the brewery company's beer in St. Joseph. At the direction of the company Davis Sons had painted on one or both sides of the truck the sign ``Dick Bros. Quincy Brewing Company,' the brewery company bearing the expense thereof. When it was necessary to repair the truck the expense thereof was borne by the brewery company. Also, at the direction of the company, Davis Sons took out two policies of indemnity insurance, the premiums on both of which were paid by the company. One of these policies insured the the brewery company against loss or damage to the truck caused by collision, and the other insured the brewery company against liability on account of injuries to any person by the truck in question. After these policies were issued, but prior to plaintiff's injury, the truck was involved in another accident, claim for which was settled by an attorney representing the brewery company. This evidence in relation to the policies and the settlement of a claim thereunder was admitted solely as bearing on the relationship existing between the brewery company and the truck, together with the business in which it was being used. The foregoing facts were elicited from W.F. Davis, whom plaintiff put upon the stand, and who, when asked as to the arrangements between Davis Sons and the brewery company with reference to sending the truck to them, replied:

"``They (the brewery company) sent it here for to use in their business.'

"And when asked why they sent it, he replied:

"``They sent it here to be used in hauling and delivering beer. Q. Whose beer? A. Dick Bros., Quincy, Ill.'

"Under cross-examination, however, by the brewery company the following was brought out: That the driver of the truck was employed ``through' W.F. Davis Sons, and they paid him; that Dick Bros. Brewery Company sold beer to no one in St. Joseph except to Davis Sons; that they, Davis Sons, bought f.o.b. Quincy, Ill. In answer to the question, ``Whose beer is it which you buy when it is loaded on the train at Quincy?' He said, ``It is supposed to be ours.' It was further elicited by defendant in cross-examination of Davis, and through other testimony offered by the appellant herein, that Davis Sons delivered the beer by means of this truck, which was owned by the brewery company, but was ``loaned,' without charge, for use as a matter of accommodation and custom between them, and that Davis Sons were also permitted to use the truck in delivery of their soda water; that regardless of whether Davis Sons sold the beer they ``ordered' or whether they collected or did not collect for it, they owed the amount they ordered. It was elicited, however, that when they ordered beer they ``just sent in an order for it.' When asked what terms are stated, witness answered, ``No terms at all.' When asked what were the agreed terms between them, he said, ``We sell the beer and send them the invoice price.' When asked if Davis Sons sold a barrel of beer to a man in St. Joseph who never paid for it, would they ``have to pay for that beer just the same to Dick Bros.?' he answered, ``Well, yes; we do.' When asked who directed the driver of the truck where to go and prescribed his duties, he said. ``W.F. Davis Sons, I suppose.' And when asked, ``Did Dick Bros, have anything whatever to do with deciding who should drive the truck, where he should go, what he ought to do, or have anything to do by way of directing his actions?' he replied, ``None.'"

I. The Court of Appeals held the evidence sufficient to support the jury's finding that relator was responsible for the driver's negligence. Relator contends this ruling necessitates the quashing of the record.

(1) Relator sets out some things as evidence which do not appear in the opinion. These cannot be considered. [State ex rel. v. Ellison, 278 Mo. l.c. 47; State ex rel. v.Other Reynolds, 226 S.W. 564; State ex rel. v. Ellison, 266Evidence. Mo. l.c. 610, 611.]

(2) Conflicts with decisions of the courts of appeals cannot be made the basis of a judgment quashing the recordOther under examination.Decisions.

(3) Relator contends the ruling conflicts with Hays v. Hogan,273 Mo. 1; Guthrie v. Holmes, 272 Mo. 215; Mockowik v. Railroad,196 Mo. 550, and Bollman v. Bullene, 200 S.W. (Mo.) 1068. The gist of relator's argument in this connection isPresumption that Vaughn's right to have the issue in questionArising from submitted to the jury depended solely upon aOwnership. presumption arising from the ownership of the truck, and that this presumption was destroyed by other evidence. In the Mockowik case the plaintiff had testified that he stepped upon a railroad track in front of a locomotive which he saw and at a place where he knew moving locomotives were likely to be encountered. He detailed all the facts. The court ruled his testimony showed him guilty of contributory negligence as a matter of law, and no presumption of ordinary care on his part could be invoked to defeat the conclusive force of the facts to which he had testified. In the case of Hays v. Hogan, supra, plaintiff had been injured by an automobile driven by the son of the owner. Plaintiff relied upon the ownership of the car by the father and the fact that the son was driving to show the latter was acting within the scope of presumed authority from the father. This court, at page 24, said, and on this relator now relies, that the mere "ownership of an automobile purchased by the father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the same on the public highway, in furtherance of his own business or pleasure." The portion of the opinion in Guthrie v. Holmes relied upon by relator is as follows, page 233: "Proof that the automobile belonged to defendant and was being operated by defendant's regularly employed chauffeur was a prima-facie sufficient showing that the chauffeur was acting within the scope of his employment, and the burden of evidence shifted to the defendant to show the contrary. . . . This presumption cannot stand in the face of positive proof of facts to the contrary; and where the plaintiff has relied upon such presumption and it has been opposed by positive evidence to the contrary, he must then produce evidence tending to disprove the defendant's positive testimony, or his prima-facie case will fail. The presumption in question is rather a frail thing. It is unlike an inference that arises upon the proof of certain facts, and which is necessarily true if the facts are true. It rests upon the facts that the automobile was owned by the defendant, and that the chauffeur who was operating it was in the general employment of the defendant; neither one nor both of which tends to prove the chauffeur was engaged in the owner's business. [Berry on Law of Automobiles (2 Ed.), sec. 615, p. 694.]" The decision in Bullman v. Bullene follows the decisions from which we have quoted. We do not think relator makes out a case of conflict with these decisions. The Court of Appeals states in its opinion that plaintiff's case, on this issue, "does not rest upon any mere presumptions arising out of the ownership of the truck, but upon direct testimony concerning the relations existing between the brewery company" (relator) "and Davis Sons, also upon inferences of fact which the jury were entitled to draw from all the evidence in the case." The question became one whether Davis Sons were conducting the business of distributing beer for themselves and independently of relator, or in distributing beer acted as representatives and agents of relator and acted for it. The evidence tended to show the truck was owned by relator; that it had been substituted by relator for horse-drawn trucks previously furnished by relator for the same use; that relator caused its own name to be painted upon it when it was put in service; that no charge was made against Davis Sons for its use; that repair bills were paid by relator; that relator paid the rent on the building occupied by Davis Sons, and maintained, at its own expense, the refrigerating plant used for cooling the beer; that relator fixed the sale price of the beer; that containers, when empty, were returned to relator at its expense; that Davis Sons acted for relator in collecting notes and rent and in buying saloon buildings for relator; that relator carried indemnity insurance on the truck in question and had previously settled a claim for damages arising out of an accident in which the truck had a part. W.F. Davis testified that relator furnished the truck for use in relator's business and in the distribution of relator's beer. This and other evidence appearing in the opinion tended to show, as a fact, that W.F. Davis Sons were mere local agents acting for relator in St. Joseph. On cross-examination Davis qualified his testimony in some respects. We do not think it can be said, as a matter of law, his testimony on cross-examination, vague and halting in several respects, destroyed the testimony he had already given. It was for the jury to say when he told the truth, in all the circumstances. The point is ruled against relator.

II. In the Court of Appeals plaintiff's principal instruction was attacked. The chief objection relator urged was that the instruction purported to cover the case butInstruction. authorized a finding for plaintiff without requiring the jury first to find the existence of such a relation between Davis Sons and the truck driver, on the one hand and relator, on the other hand as to render relator liable for results of the driver's negligence. The Court of Appeals held this objection was not well founded and this ruling is said to conflict with decisions of this court. The Court of Appeals did not deny or question the rule that an instruction purporting to cover the case and authorize a verdict must require a finding of all essential facts. On the contrary, it recognized and applied that principle and held that the instruction conformed to it. The instruction required the jury, before finding for plaintiff, to find, among other things, that Davis Sons, at the time of plaintiff's injury, were "engaged in the business of delivering and distributing for the defendant, Dick Bros. Quincy Brewery Company, in said city of St. Joseph, the product hereinabove referred to as Dick Bros. Quincy beer and . . . that on said date the defendant, Dick Bros. Quincy Brewery Company, for the sole purpose and consideration of aiding and furthering its business in said City of St. Joseph, and of furthering the delivery and distribution, through defendants W.F. Davis Sons, of its product known as Dick Bros. Quincy beer, owned, kept, maintained and furnished to defendants, W.F. Davis Sons, the . . . truck mentioned in evidence, and instructed, authorized and empowered said W.F. Davis Sons to use, run and operate said . . . truck, or cause the same to be used, run and operated for the purpose of delivering" the product of the brewery company, and that Millikel (the driver) had been employed by Davis Sons and was operating the truck "in and about the business of delivering and distributing the product of Dick Bros. Quincy Brewery Company known as Dick Bros. Quincy beer," and that Millikel was guilty of certain acts of negligence by reason of which plaintiff was injured by the truck, and that plaintiff was then in the exercise of ordinary care.

We think the Court of Appeals was right in ruling that this instruction requires, before verdict for plaintiff, a finding of facts which show such a relation of the relator to the driver as to render relator liable for the driver's negligence, if other facts predicated are found.

The outstanding issue of fact was whether Davis Sons were acting for themselves or for relator in distributing beer. If the jury found that relator furnished the truck to Davis Sons for use in its, relator's, business, and that Davis Sons were, at the time, actually using the truck in distributing relator's beer, not for themselves, but "for the defendant, Dick Bros. Quincy Brewery Company," the issue was covered and the fact resolved against relator. We agree with the Court of Appeals that the instruction might have been more brief and more clear, but also agree that it was not reversibly erroneous when tested by the principle and decisions invoked by relator.

III. In the opinion of the Court of Appeals appears the following:

"The evidence complained of consists of an answer made by plaintiff, at the outset of his testimony, to a question as to who composed his family. In order that it may appear just as it took place, we set, out the record as follows:

"``Q. What is your occupation? A. Farming.

"``Q. Are you a married man? A. Yes, sir.

"``Q. Who are the members of your family?'

"(At this point counsel who appeared for Davis Sons said: ``We object to it as being irrelevant, incompetent and immaterial.' The court: ``Answer the question.' To which ruling of the court defendants at the time excepted.

"``Q. Who compose your family? A. Ten children.

"Q. How many are at home with you? A. Two, now.'"

The Court of Appeals ruled that there was no objection made to the question which the witness actually answered; that the objection was made to a question the witness did not answer. A glance at the excerpt from the opinion will make the ruling clear. Relator contends (1) the evidence was inadmissible and (2) the ruling referred to conflicts with several decisions of this court. That such evidence ought not to be admitted is settled law in this State (Dayharsh v. Railway, 103 Mo. l.c. 577), and the Court of Appeals did not hold otherwise.

With respect to relator's second point, this court has held that once an objection has been seasonably made and overruled and exception saved it is not necessary, in order to save the point, to continue to repeat the objection to the same testimony, (Schierbaum v. Schemme, 157 Mo. l.c. 22), and that "the persisting in a running fire of the same objections to the same precise evidence may become indecorous and disrespectful." [Bailey v. Kansas City, 189 Mo. l.c. 513.] In the instant case the rule is peculiarly applicable. The question answered was not a new question. It was no more than a repetition (immediately following the ruling, objection and exception) of the question ruled upon, and the repetition was made merely to refresh the memory of the witness so that he might give the evidence just ruled admissible by the trial court. This ruling of the Court of Appeals on this point is in conflict with the principle in the cases last cited.

Respondents seek to justify the result of the ruling by other arguments. They suggest the objection was too broad and constituted no objection at all. Such an objection sometimes is held to be so. "But an exception exists to the rule. If the evidence objected to is not competent for any purpose in the case, a specific objection has no office and the general objection of irrelevancy, immateriality, etc., will do." [Bailey v. Kansas City, supra, l.c. 512; State ex rel. v. Diemer, 255 Mo. l.c. 350.] Neither did the Court of Appeals put its ruling on that ground. On the contrary, it, in effect, said it did not do so. It is suggested that it was not to be expected that in the opening of the trial the trial court could have known that the testimony objected to might not prove competent in some way in later stages of the proceeding. If this be an adequate answer, then any incompetent evidence, provided it be wholly incompetent, can be admitted without error, since such evidence is open to hardly any other than a general objection, and no general objection would be good in the beginning of a trial under the rule contended for. It is further suggested that the answer, "ten children," which plaintiff made to the question asked was shown by subsequent testimony not to be responsive to the question, and there was no motion to strike out. The answer was entirely responsive. The subsequent testimony may have shown it to have been in part untrue, but did not show it to lack responsiveness to the question. It is further argued that the objection was not made by relator, but by counsel for Davis Sons, and cannot now be relied upon by relator. The Court of Appeals in its opinion did not take that position. It points out that the defendants excepted to the ruling and construed the word "defendants" to include all defendants. This is the proper construction. When one of several defendants makes an objection it is unnecessary for another to repeat it in order to put himself in position to base an assignment of error on it on appeal. In such case an exception to the ruling on the objection is enough, though the exceptor did not himself utter the words in which the objection is made. It is further objected that the motion for new trial did not cover the matter. The Court of Appeals did not so hold. The ground of the motion which is drawn in question by this suggestion, reads: "The court erred in admitting over the objection of this defendant, incompetent, irrelevant and immaterial evidence offered by the plaintiff." It is said the word "this" may have confined the court's attention to objections made by relator's counsel. It is clear relator could not have complained of the admission of the evidence unless it was admitted over its objection. Every ground of a motion for a new trial, to justify such a complaint in an appellate court, must have in it, explicit or implicit, the very thing which the suggestion now being considered brings forward to exclude the ruling in question from consideration. To sustain this argument would seem to render it impossible for one of a group of defendants to adopt an objection made by another. We do not think such a rule would be desirable. There is no such rule now. As already pointed out, relator did adopt the objection and saved its exception to the ruling against it. It thereby became relator's objection and is covered by the motion.

We are of the opinion that the ruling of the Court of Appeals on this question of the admission of the evidence referred to in the beginning of this paragraph requires that the record be quashed. It is so ordered. All concur, except Elder, J., not sitting.