Scotten v. Met. Life Ins. Co., 81 S.W.2d 313; State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 38; Keim v. Blackburn, 280 S.W. 1046; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Poague v. Kurn, 140 S.W.2d 13; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Putnam v. Unionville Granite Works, 122 S.W.2d 389; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600. (2) Appellant failed to make a submissible case that Phillips was the servant of Owen at the time of the collision. Igo v. Alford, 69 S.W.2d 317; Vert v. Met. Life Ins. Co., 117 S.W.2d 252; Snowwhite v. Met. Life Ins. Co., 127 S.W.2d 718; Riggs v. Higgins, 106 S.W.2d 1; Barnes v. Real Silk Hosiery Mills, 108 S.W.2d 58; Skidmore v. Haggard, 110 S.W.2d 726; Kourik v. English, 100 S.W.2d 901; Manus v. K.C. Distributing Corp., 74 S.W.2d 506. (3) Appellant's evidence failed to make a submissible case that Phillips was at the time of the collision acting as the agent and servant of Owen and about his master's business. Schmitt v. American Press, 42 S.W.2d 969; Chambers v. Kennedy, 274 S.W. 726; Wolf v. Terminal R. Assn. of St. Louis, 222 S.W. 114; Halsey v. Metz, 93 S.W.2d 41; Sowers v. Howard, 139 S.W.2d 897.
(1) Arthur Brown, the carrier, was an independent contractor and dealer, for whose wrongs the defendant was not responsible. The court, therefore, properly directed a verdict for the defendant. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Carter Publications v. Davis, 68 S.W.2d 640; Post Pub. Co. v. Schickling, 22 Ohio App. 318, 154 N.E. 751; Bohanon v. James McClatchy Pub. Co., 16 Cal.App.2d 188, 60 P.2d 510; Bernat v. Star Chronicle Pub. Co., 84 S.W.2d 429; Coul v. Peck D.G. Co., 326 Mo. 870, 32 S.W.2d 758; McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 611; Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071; Semper v. American Press, 217 Mo. App. 55, 273 S.W. 186; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58; Igo v. Alford, 228 Mo. App. 457, 69 S.W.2d 317; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Manus v. Kansas City Distributing Co., 228 Mo. App. 905, 74 S.W.2d 506. (2) Defendant is not liable for any alleged negligence of Thompson. The status of Thompson was that of an independent contractor working for the independent contractor Brown. Riggs v. Higgins, 106 S.W.2d 1; Blumenfeld v. Meyer Schmid Grocery, 206 Mo. App. 509, 230 S.W. 132. (3) No relationship existed between Noel Bass and the defendant.
f the Law, Agency, secs. 220, 250; Stockwell v. Morris, 22 P.2d 189; American Nat. Ins. Co. v. Denker, 95 S.W.2d 370; Wesolowski v. Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 A. 166; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N.E. 541; Schofield's Case, 172 N.E. 346; Hardaker's Case, 174 N.E. 210; Child's Case, 174 N.E. 212; Reardon v. Coleman Bros., Inc., 178 N.E. 638; McCarthy v. Southers, 137 A. 445; Taylor v. General Refrigeration Sales Co., 165 So. 572. (3) Whatever the relationship was between Crowe and appellant regarding the former's work within his debit in East St. Louis at the time of respondent's injury and in so far as Crowe's trip from East St. Louis, Illinois, to St. Louis, Missouri, and return, was concerned, the relationship between him and appellant was neither that of principal and agent nor master and servant; but was that of contractor and independent contractor. Restatement of the Law, Agency, secs. 220, 250; Manus v. K.C. Dist. Corp., 74 S.W.2d 506; Igo v. Alfred, 69 S.W.2d 317; Barton v. Studebaker Corp., 189 P. 1025; Premier Motor Mfg. Co. v. Tilford, 111 N.E. 645; Aldrich v. Tyler Groc. Co., 206 Ala. 138, 89 So. 289; Dohner v. Winfield Wholesale Gro. Co., 116 Kan. 237, 226 P. 767; Ramp v. Osborne, 115 Or. 672, 239 P. 112; Goldsmith v. Chesebrough, 138 Md. 1, 113 A. 285; Nettleship v. Shipman, 296 P. 1056; James v. Tobin-Sutton Co., 195 N.W. 848; Holloway v. Nassar, 267 N.W. 619; Harrington v. Lee Mercantile Co., 33 P.2d 557; Neece v. Lee, 262 N.W. 1; Johnston v. Smith, 243 N.W. 894; Khoury v. Edison Elec. Illum. Co., 265 Mass. 236, 164 N.E. 77. Igoe, Carroll Keefe for respondent.
There was no conflict or issue raised by the evidence on this point and nothing for the jury to determine as far as defendant fire insurance company was concerned. 2 Thompson on Negligence, p. 899; 1 Shearman Redfield on Negligence, sec. 164; Cooley on Torts (2 Ed.), p. 647; Sargent v. Clements, 88 S.W.2d 174; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Rutherford v. Tobin Quarries, 82 S.W.2d 918; Manus v. K.C. Dist. Corp., 74 S.W.2d 506; Byrnes v. Poplar Bluff Ptg. Co., 74 S.W.2d 20; Igo v. Alford, 69 S.W.2d 317; Stein v. Battenfield Oil G. Co., 327 Mo. 804, 39 S.W.2d 345; Coul v. Peck D.G. Co., 326 Mo. 870, 32 S.W.2d 758; Mattocks v. Emerson Drug Co., 33 S.W.2d 142; Baker v. Milling Co., 323 Mo. 1089, 20 S.W.2d 494; Mallory v. Louisiana Pure Ice Co., 320 Mo. 95, 6 S.W.2d 617; Timmerman v. St. L. Arch. Iron Co., 318 Mo. 421, 1 S.W.2d 791; Horn v. Rhoads, 317 Mo. 572, 296 S.W. 389; Keim v. Blackburn, 280 S.W. 1046; Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 611; Mullich v. Brocker, 97 S.W. 549; Gayle v. Mo. Car Fdry. Co., 177 Mo. 427, 76 S.W. 987; Blumb v. Kansas City, 84 Mo. 112; Long v. Moon, 107 Mo. 334, 17 S.W. 810; Fink v. Mo. Furnace Co., 82 Mo. 276; Snyder v. Railroad Co., 60 Mo. 413; Haggerty v. Railroad Co., 100 Mo. App. 118, 74 S.W. 456; Gross v. Robinson, 203 Mo. App. 118, 218 S.W. 924. (2) The mere fact that in respect to occasional losses where a question of policy violation or interpretation might arise, the independent adjuster,
Therefore, a submissible case was not made against respondent defendants. Caul v. Peck Dry Goods Co., 32 S.W.2d 758, 326 Mo. 870; Flori v. Dolph, 192 S.W. 949; Igoe v. Alford, 69 S.W.2d 317, 228 Mo. App. 457; Mattocks v. Emerson Drug Co., 33 S.W.2d 142. (3) The presumption of ownership, agency and operation, if any, arising out of the fact that the name "St.
Because of the control by the employer over the manner of doing the work the case differs from those in which the owner surrenders control of his automobile to one engaged in an independent business as a mechanic, leaving to the judgment of the mechanic the manner in which the automobile is to be repaired and the method and place of testing it. See: Whalen v. Sheehan, 237 Mass. 112, 129 N.E. 379, 18 A. L. R., 972 and note pp. 974 and following; Bell v. State of Maryland, 153 Md. 333, 138 A. 227, 58 A. L. R., 1051 and note pp. 1057 and following; Igo v. Alford, 228 Mo. App., 457, 69 S.W.2d 317. 5 It is true that Salinas had a distinct occupation, that of automobile mechanic, and that the act which he was directed to perform involved the exercising of a certain amount of mechanical skill, but these facts do not release him from the control reserved and exercised by his employer.
The only scintilla of evidence to support the question of agency was that the driver had admitted in a former deposition that plaintiff told him to test the car after the repair work had been completed and plaintiff's testimony that he did not remember of making any requests of the mechanic to test the car. The trial court's judgment in holding that the evidence was insufficient to support this instruction was clearly supported by Igo v. Alford, 228 Mo.App. 457, 69 S.W.2d 317. Instructions numbered 4 and 5, given by the court in behalf of defendant, were based upon defendant's plea of contributory negligence.