The principal opinion has misconceived the case. It ruled same solely on a question of "mere knowledge" on the part of the employer that the employee used the car in traveling to Joplin. I agree that on this record "mere knowledge" did not fix liability on the employer. However, I do not agree that the record presents merely a question of knowledge on the part of the employer that the employee used the car to Joplin. The question of "mere knowledge" was a "straw man to be knocked down."
[3] Furthermore, this is not a case of a conductor going home at the end of his trip. Neither does the record present a question of liability of the employer for the negligence of an employee while driving his car from home to a fixed place of employment, nor a question of the liability of an employer for the negligence of an agent solely authorized to bring about contractual relations between his employer and others on his own initiative and by his own methods, nor a question of whether or not the person causing the injury was an independent contractor or a servant. Even so, the principal opinion cites Aubuchon v. Security Const. Co. (Mo. App.), 291 S.W. 187; Semper v. American Press, 217 Mo. App. 55, 273 S.W. 186; Hoelker v. American Press,317 Mo. 64, 296 S.W. 1008, and Hilsdorf v. City of St. Louis,45 Mo. 94. From the last-cited case they quote as follows:
"The rule that prescribes the responsibility of principals, whether private persons or corporations, for the acts of others, is based upon their power of control. If the master cannot command the servant, the acts of the servants are clearly not his. He is not master, for the relation implied by that term is one of power, of command; and if a principal cannot control his agent, he is not an agent, but holds some other or additional relation. In neither case can the maxim respondeat superior apply to them, for there is no superior to respond."
The above-stated rule is without application to the facts of this *Page 12 case. In that case it was a question of whether or not the injury was caused by an independent contractor or servant. The other cases above noted also ruled such a question. In those cases the question turned on whether or not the employer controlled or had the right to control the method, manner and detail of the work to be performed. In the case at bar there is no question of control, for the opinion admits that the driver of the car was in the general employment of defendant. If so, he was under the control of appellant while in the performance of the duties required of him under the employment. It follows that the only question is whether or not there was substantial evidence tending to show that Higgins was acting within the scope of his employment in using the car for transportation to Joplin. There was no express direction to use the car, but if appellant impliedly directed said use, Higgins acted within the scope of his employment in using the car to Joplin. If so, appellant must be charged with control of the car while being so used.
[4] The principal opinion ruled the case on appellant's statement of facts. The statement is argumentative and favorable to appellant. At the beginning of the employment the assistant manager made trips with each new employee over his territory, instructing him with reference to the work and furnishing him with a list of policyholders from whom to collect. Each owned the car used in performing his duties under the employment. Each paid for the license issued in his name. Each kept the car in repair, and furnished the gas and oil during said service. The witnesses Darnell and Higgins gave the only testimony on the question. They were agents of appellant and resided in Neosho. Each was assigned a large territory in which he collected weekly premiums for insurance. For this work each was paid a commission. Each also sold insurance for which he was paid a percentage of the premium. Each also was required to attend weekly or almost weekly meetings at the district office in Joplin. All of the agents within the district were required to attend said meetings. They were "pep meetings" at which instructions from the home office were considered, the work performed by the agents reviewed, and instructions of the district manager for the succeeding week or weeks were received by the agents.
They deposited collections in the bank at Neosho to the credit of the district manager, sending him a duplicate deposit slip. The applications for insurance were either mailed, delivered in person to the district office, or to the assistant manager who was in Neosho once or twice a week. They mailed daily and weekly reports in writing to the district office and received by mail daily instructions from said office. They obeyed the orders of appellant with reference to collections, district meetings at Joplin, and the sale of insurance.
The principal opinion did not consider and analyze the testimony. *Page 13 On the contrary, after adopting appellant's statement, it merely proclaimed that there was no evidence tending to show an express or implied direction to Higgins to use the car in traveling to Joplin. After doing so, it argued a question of "control" as ruled in independent contractor cases.
In determining the submissibility of a case it is the mandatory duty of this court to give plaintiff the benefit of all the facts and reasonable inferences. In this connection it should be noted that appellant's statement omitted testimony of Higgins that hewas to use his car in making the rounds. It also is stated in said statement that Higgins and Darnell were "expected" to attend the meetings at Joplin, whereas, the evidence shows that they were required to attend said meetings. Higgins, the driver of the car, testified as follows:
"The district manager, Mr. Lee, hired me. It is 6 or 7 miles south of Neosho to Goodman and that is as far south as I went.It was necessary to use my car in making this territory. Thecompany did not furnish me a car but I was to use my car inmaking these rounds, and the company manager knew I was doingthis and that I had a car when he hired me. I made reports about every day in writing and mailed them to the Joplin office. I got letters of instruction from the Joplin office every day or so. I obeyed the orders of the company and tried to do as they instructed. When they wanted me to report at the meetings in Joplin, of course, I went as they ordered me. . . .
"At these meetings we sometimes reviewed the business we have done for the past weeks and Mr. Lee would quite often talk to us and instruct us in our work and in the art of selling, sometimes we would have pep meetings and different employees would give talks on how to better the business and new ideas on how to sell. That was one of the purposes of the meeting. Sometimes, if a man would be doing something wrong Mr. Lee would correct him. I always drove up to these meetings in my car and I suppose the people in the Joplin office knew it. As far as I knew the carwas the only practical way to get there that time in themorning." (Italics ours.)
Darnell testified as follows:
". . . It was necessary for Higgins to use his car in the business. Joplin is twenty miles from Neosho. It is necessary to use a car or some means of conveyance to go from Neosho to Joplin. The agents living in Carthage and Joplin come to the meetings sometimes on the street cars. Those in outlying territories presumably come in their cars. I use one. There is only one railroad between Neosho and Joplin. Cars are practically the only way to get to Joplin. There is some railroad service between Neosho and Joplin and a regular bus service also." *Page 14
The question of implied direction must be determined from the facts and circumstances, including the nature of the work, conditions under which it must be performed, and the requirement of the employment.
From the above-stated testimony it could not reasonably be inferred that Higgins' car was used in said service without compensation. It would be absurd to so infer. It could be inferred that the parties to the contract of employment considered the commissions and percentage on premiums sufficient to compensate Higgins for his services and the use of his car. In other words, the jury could find that appellant hired both Higgins and the car. If so, it also could find that appellant, in effect, was using the car while same was used by Higgins in the performance of his duties under the employment. I do not overlook the testimony of Higgins and Darnell that they were not paid for the use of the cars. From this testimony the jury could reasonably infer that they were not paid fixed and separate sums for the use of the cars, but that the commissions and percentages were sufficient to cover payment for use of the cars.
Higgins covered a large territory from a station twenty miles from the supervising office. He was required to call upon and collect from every policyholder in the territory and required to attend district meetings. Appellant directed whom to see (policyholders), where to go (their homes or place of work), what to go for (collect premiums due weekly), when to go (once a week or more if necessary), and to attend the district meetings at Joplin. Under the employment he was required to obey these orders. He testified that during his employment he weekly attended the district meetings. Furthermore, the evidence conclusively shows that the use of cars by said agents was the only practical method of conveyance over the territories and from Neosho to meetings at Joplin. If so, the jury could not only find that appellant hired Higgins and his car, but also could find that appellant impliedly directed Higgins to use the car in traveling over his territory and in traveling from Neosho to Joplin to attend the district meetings. The jury also could find that the meetings were so closely connected with the work as to be a part of it. On the question it is said:
"It is a principle embodied in the very relation of master and servant that whatever is done by the employee in virtue of his employment and in furtherance of its ends is deemed by the law to be an act done within the scope of employment. No general rule can be formulated which will determine in each case whether the servant was acting within the scope of his employment, the authority from the master generally being gatherable from the surrounding circumstances. Acts may be said to be within the scope of the servant's *Page 15 employment where specifically directed, or where they are clearly incidental to the master's business. It is not essential that the act be specially authorized by the master. An act is within the scope of the servant's employment, where necessary to accomplish the purpose of his employment, and intended for that purpose. . . ." [39 C.J., p. 1283.]
It is idle to suggest that said meetings were for the benefit of the agents and for that reason appellant is not liable. Everyone knows, and the jury could find, that the meetings were for the benefit of appellant. The directions and instructions may have increased the earnings of the agents, but that does not change the fact that the meetings were for the purpose of increasing appellant's business. It was just as necessary for Higgins to attend the meetings as it was for him to call on each policyholder in his territory.
In this connection I have not overlooked the testimony of Higgins that he had no directions from appellant as to the method of conveyance or route he should take to Joplin. And I have not overlooked the testimony of Darnell that appellant only required the agents to attend the meetings and that it did not care about the conveyance used or the route taken to Joplin. In other words, Higgins only testified that he had no express directions from appellant about the matter. Darnell's testimony could be, and no doubt was, considered by the jury as only an opinion of the witness unsupported by facts. He testified to no facts with reference to the matter. Of course, the jury could disbelieve this opinion evidence. Furthermore, the fact that an agent might travel to Joplin in a conveyance other than a car is not conclusive on the question of whether or not appellant impliedly directed Higgins to use the car for said purpose.
An attempt is made to distinguish the case at bar from Margulis v. National Enameling Stamping Co., 324 Mo. 420,23 S.W.2d 1049. In that case the employer paid the cost of upkeep on the car. The principal opinion siezed upon this as an "express ratification" of the use of the car. There was no question of ratification in that case. It may be assumed that said opinion intended to state that the employer expressly assented to the use of the car by payment of the cost of upkeep. As stated, in the case at bar the jury could find that the employer paid for the use of the car. In the Margulis case the evidence as to the upkeep of the car was not conclusive but was considered with other facts and circumstances in determining whether or not the employer expressly or impliedly directed the use of the car. This is clear from the ruling in that case as follows:
"The mere fact that appellant did not own the automobile causing plaintiff's injury will not preclude a recovery by the plaintiff. The evidence tends to show that the automobile was used in appellant's business with its knowledge and assent. In fact, appellant paid the *Page 16 cost of upkeep on the car in consideration of use thereof in its service. `Where, with the express or implied assent of the employer, the employee uses a vehicle which the employee owns in the discharge of his duties, the employer will be liable for any injury occasioned by its negligent operation by the employee while acting within the scope of his employment.' [42 C.J., sec. 900, page 1128; 6 Labatt on Master and Servant, sec. 2282.]
"The evidence showed that Pfaff was appellant's regularly employed salesman, and was operating the car in the performance of his duty to his employer at the time it struck and injured the plaintiff. This showing established prima facie the relation of master and servant between appellant and Pfaff and warranted the submission of the case to the jury." (Citing authorities.)
The principal opinion challenged Borgstede v. Waldbauer,337 Mo. 1205, 88 S.W.2d 373, as holding that "mere knowledge" of the employer that the employee used the car was sufficient to sustain a finding against the employer. It was not so ruled in said case. In part, said opinion states as follows:
"It is apparent from the facts enumerated, which were conceded at the trial, that Waldbauer was, at the time of the accident, acting within the scope of his employment. It was just as necessary for Waldbauer to return as it was for him to go to North St. Louis, as he had no business of his own there but went in the interest of his employer. He was, therefore, about his master's business. A salesman must, of necessity, travel from place to place to perform his duties. It was shown that the company knew Waldbauer was using a car in making the sales and collections."
The principal opinion also siezed upon the last sentence of this paragraph as holding that "mere knowledge" of the employer that the employee was using the car was sufficient to make a submissible case. It was only the statement of a fact to be considered with other facts and circumstances in determining whether or not the employer impliedly directed the use of the car. It was not contended in said case that mere knowledge of the employer that the employee used the car was sufficient to make a submissible case. There was nothing in said case to overrule.
The opinion in the Borgstede case also is challenged for the reason it cites cases involving the construction of special provisions of the Compensation Act. It states that those cases are not necessarily controlling in cases of this character. The principal opinion points to no special provisions of said act. It only states that compensation cases are not necessarily authority for determining when an employee is acting within the scope of his employment. Even so, it does not show that the cases cited are not authority on the question ruled. It may be conceded that the basis of liability of an employer to his employee *Page 17 for compensation under the act is entirely different from the basis of liability of an employer to a third person for damages caused by his employer's negligence. The right of an employee to compensation is based wholly on the statutory provisions, which give this right to "every person in the service of any employer" whose average annual earnings do not "exceed three thousand six hundred dollars" (Sec. 3305, R.S. 1929), including independent contractors, their subcontractors or employees injured on or about the premises of the employer while doing work which is in the usual course of his business; and including even a tenant when the relationship of landlord and tenant is "created for the fraudulent purpose of avoiding liability." [Sec. 3308, R.S. 1929.] However, when it comes to determining the employee's right to compensation for the particular injury, this depends upon whether the injury was caused "by accident arising out of and in the course of his employment." [Sec. 3301, R.S. 1929.]
In order to determine whether or not an employee is acting within the course of his employment so as to be entitled to pay under the Compensation Act, the same common-law principles apply which are considered in the determination of the question of whether an employee is acting within the scope of his employment when he injures a third person. Of course, under the Compensation Law if the accident arises out of the employment, that is, has a casual connection with it, negligence is immaterial, while negligence is the basis of the employer's liability to a third person injured by his employee acting within the scope of his employment. [See discussion in Leilich v. Chevrolet Motor Co.,328 Mo. 112, 40 S.W.2d 601; Teague v. Laclede Christy Clay Products, 331 Mo. 147, 52 S.W.2d 880; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169,52 S.W.2d 1019; Phillips v. Air Reduction Sales Co., 337 Mo. 587,85 S.W.2d 551; Beem v. H.D. Lee Mfg. Co., 337 Mo. 114,85 S.W.2d 441.] The Borgstede case will survive the attack.
The principal opinion also attempts to distinguish Schmitt v. American Press (Mo. App.), 42 S.W.2d 969. It states that the truck causing the injury was owned by the employer. It was owned by the employee and was being driven to designated places to pick up unsold newspapers of the employer before reporting at the employer's place of business for regular work. It was a part of the employee's work to pick up said papers. In ruling the case it was said:
"No hard and fast rule can be laid down by which it would be possible to determine in every instance whether the driver of a motor vehicle, in the general employ of another, was acting within the scope of his employment at a given time, but rather each case is to be decided largely upon its own facts, merely keeping in mind the basic idea that the use of the vehicle at the time must have been in the *Page 18 service of the employer, or while about his business. [Borah v. Zoellner Motor Car Co. (Mo. App.), 257 S.W. 145; Wrightsman v. Glidewell, 210 Mo. App. 367, 239 S.W. 574.] Of course, it makes no difference upon the question of the employer's ultimate liability that the vehicle may belong to the servant himself, provided only that the servant was driving it at the time with the actual or implied consent of his employer, and in the discharge of the duties owed by the servant to him. [Margulis v. National Enameling Stamping Co., 324 Mo. 420,23 S.W.2d 1049; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 108; Gordner v. St. Louis Screw Co., 201 Mo. App. 349, 210 S.W. 930.] . . .
"Instead of having required Fletcher to report to its office, as it might have done, there to be told that he should go to Sarah and Olive streets and pick up some unused papers, appellant saw fit to have him go to that point direct from his home. And not only was Fletcher obeying an order of appellant at the time, regardless of when the order may have been given, but the time element is also present in the case, for the evidence shows that it was necessary for Fletcher to pursue the course he took so that he could complete his collections before the time arrived to begin his regular deliveries. Consequently we think the conclusion is inescapable that Fletcher, while on his way on the morning in question, was at all times at a place where, in the performance of his duty, he was required to be, and where appellant's interests were being served."
On principle, I am unable to distinguish the cases. In the case at bar the jury could find from the evidence that Higgins was ordered and required to attend the district meetings; that appellant, in effect, used the car, and that Higgins used the only practical conveyance and route to Joplin.
The principal opinion overlooked Hein v. Peabody Coal Co.,337 Mo. 626, 85 S.W.2d 604. In that case the agent negligently injured a third person while traveling in the master's car to attend a meeting of the Coal Institute, a public educational effort where combustion ideas were discussed for the benefit of anyone interested in the sale or use of coal. The master was held liable for the injury. The agent was not instructed or required by the master to attend the meetings, but the district manager insisted that he do so. It was not a company meeting. In the case at bar the servant was directed and required by the master to attend the meetings at Joplin, and, as stated, the jury could infer that the master hired both Higgins and his car for service under the employment.
In view of appellant's statement of the facts, the principal opinion will be cited as inferentially holding the employer not liable for negligence of the employee in driving the car within the assigned territory to make collections. It will be argued that the employer *Page 19 merely knew that the employee was using the car within said territory for said purpose. As written, it will confuse the bench and bar. It may be that it is intended to inferentially so rule. If so, I register a double dissent.
The principal opinion will not be followed. From time to time it will be distinguished. Finally, it will occupy a position in the line of criticized or overruled cases. In the meantime plaintiff will have been denied justice under the law. The motion for rehearing should be sustained. Frank and Douglas, JJ., concur.