Roth v. J. N. Roth & Co.

253 S.W.2d 802, 363 Mo. 767, 1952 Mo. LEXIS 698
CourtSupreme Court of Missouri
DecidedDecember 31, 1952
DocketNo. 42710
StatusPublished
Cited by6 cases

This text of 253 S.W.2d 802 (Roth v. J. N. Roth & Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roth v. J. N. Roth & Co., 253 S.W.2d 802, 363 Mo. 767, 1952 Mo. LEXIS 698 (Mo. 1952).

Opinion

CONKLING, J.

Marjory J. Roth (hereinafter called “plaintiff”) sued J. N. Roth & Company, a corporation (hereinafter called “Roth Corporation”) and Aubrey Newton Calvert and the latter’s employer, Kansas City Star Company, for $25,000 damages for personal injuries. Plaintiff recovered a verdict against Roth [771]*771Corporation for $15,000. The jury’s verdict was also in favor of Calvert and Kansas City Star. Roth Corporation filed its motion for new trial. [804] Plaintiff filed her motion for new trial as against Calvert and Kansas City Star Company. The trial court ordered a $3,000 remittitur, which plaintiff made, entered a new judgment for $12,000 against Roth Corporation and overruled both motions. Roth Corporation appealed. Plaintiff appealed from the judgment in favor of Calvert and Kansas City Star.

On May 9, 1949, about 8:30 A. M., plaintiff was injured while riding south in the front seat of a Packard automobile driven by her husband, J. N. Roth, on Highway 54 just south of Holts Summit, a small village in Callaway County, Missouri. The concrete highway ran north and south and was 20 feet wide. Plaintiff and her husband had that morning driven from their home in St. Louis and were on their way to Jefferson City. Martha Seivers, plaintiff’s cousin, whom plaintiff had invited to go along, was riding alone in the rear seat. A short distance down hill just immediately south of Holts Summit, and leading west from the highway, there was a 20 foot wide gravel country lane. Defendant Calvert, operating an automobile for his employer, was driving north on the east side of Highway 54 and approaching the point where the above lane entered into Highway 54. -Calvert testified the country lane entered Highway 54 at a point 150 feet south of the top of the hill, but disinterested witnesses testified that such distance was 300 to 350 feet.

As the two automobiles approached the lane from opposite directions and were near to each other, Calvert, to enter the country lane and go west, and without signaling his intention to do so or reducing speed, turned sharply to his left across the west side of the highway in front of the Roth car which was running south on the west side of the highway. The different witnesses variously estimated that the two cars were 40 to 50, or 50, or 75, or 90 to 100 feet apart when the Calvert car started to turn left. The two motor cars did not collide or touch each other. Roth swerved to his left to avoid the collision and the Roth car passed within two feet, or less, o'f the right rear corner of the Calvert car as that corner was close to the highway centerline going west to enter the country lane. Tire marks on the pavement caused by the application of the brakes on the Roth car began “around 75 or 100 feet” south of the crest or top of the hill and led south to that, ear. The Roth car, in passing east of the Calvert car, skidded on mud on the highway ran off the east side of the highway and into an embankment east of the highway a little south of the country lane, and caused plaintiff’s injuries. Signs erected along the highway on each side of Plolts Summit by the State Highway Department bore the legends, “Slow to 35 miles an hour, ’ ’ and ‘ ‘ Holts Summit, ’ ’ and ‘ ‘ School Zone. ’ ’

[772]*772We first consider the appeal of Roth Corporation. Under plaintiff’s instruction I her case was submitted as against Roth Corporation upon the theory that Mr. Roth was negligent in operating the automobile at a speed in excess of 50 miles per hour. No question is here raised that the evidence does not support that particular theory of submission as to the negligence alleged and proved. Roth Corporation does contend, however, that the court erred in submitting the case to the jury at all as against Roth Corporation because the act of plaintiff’s husband, in inviting plaintiff to accompany him on the business trip, was wholly a personal matter between them and her presence in the car served no interest of Roth Corporation and had nothing to do with Roth Corporation’s business; that while plaintiff may have been an invitee of her husband in his-personal capacity she was not an invitee of Roth Corporation; that since the act of a corporation officer binds the corporation only when the act is one performed in the corporation’s business and in furtherance of its interests, the invitation of a corporation officer to another (even to such officer’s wife) to ride in an automobile operated upon the corporation’s business does not bind the corporation; and that therefore the duty owed to plaintiff by Roth Corporation while in the car in this case must be measured by the rules relating to trespassers. This contention requires a statement of certain other facts appearing in the transcript,

Roth Corporation’s business is the sale of hospital and hotel furniture and supplies, and plaintiff’s husband, J. N. Roth, is its president. Its business did not include the transportation of persons by automobile as either passengers or guests. Its place of business is in St. Louis. During the noon hour, when the office girl in Roth Corporation’s office was out to lunch, plaintiff stayed in that office. For that hour per day she was paid $15.00 per week. The Packard automobile in question was the personal property of J. N. Roth and the title was in his name. On the morning in question he used that automobile to drive to Jefferson City upon a business trip for Roth Corporation. Roth testified: “ Q. Plow did your wife happen to go along with you? A. Well, my wife didn’t have anything to do, and I asked her if she just wanted to take a ride with me as I had some business to do in Jefferson City and she several times mentioned she would like to see the penitentiary and I told her, well, she can come along but I won’t have any time for her, so she says, ‘Well, can I invite someone else?’ I says, ‘Go ahead and invite someone else, and she invited her cousin, Martha Servers.’ * * # Q. They didn’t go along for any business purpose whatever? A. No. Q. But merely as a personal mission on their part? A. Yes. Q. So it was an entirely personal matter with you they rode along? A. Entirely personal. Q. Didn’t have anything to do with your business whatever? A. None whatever. * * * Q. And did you tell me the [773]*773purpose of your going to Jefferson City? A. There was a bid open in the State Purchasing Department at that time, and they open in the morning, and I generally attend those myself instead of sending one of my assistants. Q. Where was this bid and what was it for? A. I think it was for one of the state hospitals .for a lot of furniture. ’ ’ Plaintiff testified: “Q. How did you happen to be along with your husband on the ride to Jefferson City? A. Well he was going on the trip and he asked me if I would like to go along for the ride, and I said ‘Yes, I would,’ and then I asked him if I could take someone else along because he was going to be busy all day. He said ‘Yes,’ and I invited my cousin to go with me.”

Plaintiff argues that “Mr. Roth’s car was being used for two purposes: the business of the company and the ‘purely personal pleasure purposes of both Mr. and Mrs. Roth and her cousin.” The evidence does not support that argument. It would not rule the question for plaintiff if that were true. The trip was being made because Roth Corporation had business in Jefferson City. The president of Roth Corporation determined that he .would attend to that business and make the trip himself. Except for that fact the trip would' not have been made.

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Cite This Page — Counsel Stack

Bluebook (online)
253 S.W.2d 802, 363 Mo. 767, 1952 Mo. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-j-n-roth-co-mo-1952.