Klotsch v. Collier Son Corp. , 349 Mo. 40 ( 1942 )

Respondent has filed a vigorous motion for rehearing. One assignment asserts he made a prima facie case, but that our opinion permits it to be swept aside by a single statement of his unfriendly witness, the appellant McAtee. McAtee's statement was that in making the Saturday night trip to Wright City through Wentzville his only purpose was to spend the week end with his wife's parents, and that he had no intention of transacting any business for his employer along the road, or at Wentzville until the following Monday morning 36 hours later. For the reasons stated in the opinion we think respondent was bound by this testimony because he called and used McAtee as his own witness. We concede that if there had been any substantial evidence to the contrary respondent could have taken advantage of it. But there was none.

[7] The two exhibits introduced by respondent purporting to show McAtee had taken two 60c subscriptions for Colliers' publications at Wentzville on Sunday, October 9, did not substantially tend to prove he regularly transacted business on Sunday or that he intended to do so on the trip on November 5. For it was undisputed that he arranged his own routes and working hours. Also, it was conceded that McAtee had had 9 or 10 accounts at Wentzville for several preceding months; but there was [597] no evidence that he had ever transacted any business there on Sunday — unless on the one occasion mentioned. McAtee himself disputed that, and his daily reports showed the two subscriptions were taken on October 7 instead of October 9, in line with his custom to work at Wentzville between the 5th and 7th of each month. The 5th in this instance (November 5, 1938) fell on Saturday, and according to all the evidence he was occupied in St. Louis county until late that day. Since all this appeared from respondent's own showing, his contention on this point must be disallowed. A verdict cannot be founded on pure speculation.

[8] The other assignment is that under the law McAtee was on a mission for his master, Colliers, enough to make the latter liable for his negligence, even though his version be true that he did not intend to work until Monday morning, 36 hours later. We think a substantial "detour" in time, as well as space, may relieve a master from liability for the negligence of his servant, for the law is well settled that the servant must be acting within the scope of his employment at the time and place of the casualty. If a servant having business to transact for his master at a given point, unnecessarily and unreasonably, so far as the master's business is concerned, starts out several days ahead for his own purposes (such as private business, sports, vacationing, visiting relatives, etc.) we can see no reason why the master should be liable for his negligence on the way, even though the servant took his business paraphernalia with him and was allowed mileage for the trip. McAtee lived less than forty miles from Wentzville with access thereto by automobile over two state highways. There was no business reason for him to start out 36 hours ahead and stay at a hotel or the home of relatives until Monday morning. In other words, while the question was not asked in that form, the necessary effect of McAtee's testimony was that the Saturday night trip would not have been made but for the purpose of visiting Mrs. McAtee's parents over the week end.

This brings the case within the ruling in Marks v. Gray,251 N.Y. 90, 93, 167 N.E. 181, written by Judge CARDOZO, and quoted and followed in McMain v. J.J. Connor Sons Const. Co., supra, 337 Mo. l.c. 43(1), 85 S.W.2d 43. Respondent's motion for rehearing says our opinion does not quote enough of the Marks case to show the full import thereof. We quoted only a few lines to save space; but all that respondent sets out in his motion is quoted in the McMain case. According to our construction the Marks case means, as applied to the instant facts, that Colliers would be liable for McAtee's negligence only if the inference be permissible that McAtee would have made the Saturday night trip to Wentzville at or about the time he did, even though the contemplated week end visit with Mrs. McAtee's parents at Wright City had been abandoned. On the other hand, there is no liability if the trip would have been made even though Colliers business had been cancelled before McAtee started, or would not have been made upon failure of the private purpose, namely the week end visit.

Respondent calls our attention to an excellent Comment on "Agency-Abandonment and Re-Entry" by William Aull III in 6 Missouri Law Review, p. 331, which considers the doctrine of vicarious liability in its social or economic aspects; and recognizes the view that industry and business should be made to bear the burden of whatever risks are normally inflicted on the public — without inquiring too strictly into the "scope" of the servant's employment. That may be true, but the law of diminishing returns sets in somewhere and the public must foot the bill. The rule is a rule of reason and was transgressed in this case, we think. For the reasons given here and in the opinion, the motion for rehearing in Division No. 2 is overruled.