Bach v. Winfield-Foley Fire Protection District

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent. The jury should not have been instructed that it must impute Nephew’s negligence to Aunt. The majority concludes otherwise, and the net result is that an innocent bystander is denied full recovery for her injuries based upon a legal construct that has no application in this case.

There are three elements that must be shown before an agency relationship can be established: (1) the principal must have the right to control the conduct of the agent with respect to matters entrusted to the agent; (2) the agent must be a fiduciary of the principal; and (3) the agent must be able to alter legal relationships between the principal and a third party. State ex rel. Ford v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002). The absence of any one of these three elements defeats a claim that an agency relationship exists. State *612ex rel. Bunting v. Koehr, 865 S.W.2d 351, 353 (Mo. banc 1993).

The majority acknowledges that Aunt had no realistic right of control over how Nephew drove the vehicle at any given moment. This acknowledgment is compelled based on the simple facts that Nephew was driving and Aunt did not know how. Despite the fact that Aunt was not driving and did not know how, the majority concludes that Aunt is liable for Nephew’s negligence in the moment before the accident because she controlled the “destination of the trip.” There is a significant incongruity between acknowledging that Aunt had no realistic control over how Nephew drove the vehicle at any given moment while, at the same time, effectively holding Aunt liable for the very actions that the majority recognizes she could not control.

This incongruity stems from the majority’s reliance on Douglas v. Nat’l Life & Accident Ins. Co. of Nashville, Tenn., 236 Mo.App. 467, 155 S.W.2d 267, 271 (1941), for the proposition that Nephew’s negligence could be imputed to Aunt if she merely controlled the final result; i.e., the destination of the trip. Douglas does not hold that the law of agency permits the negligence of one person to be imputed to another if the purported principal only controls the final result that the agent is to achieve. To the contrary, the Douglas case distinguishes between a principal/agent relationship in which the principal is not responsible for the negligence of the agent and a master/servant relationship in which the principal may be liable for the negligence of the servant under a respondeat superior theory:

If to the relationship of principal and agent there is added the right of the principal to control the agent’s physical movements with respect to the details of the performance of any part of the service for which he is engaged, then the agent becomes a servant in the doing of the things over which such right of control is reserved to the principal; and the principal becomes subject to liability for any negligence of his servant in that regard under the ordinary application of the doctrine of respondeat superior .... (citations omitted). But if the relationship is such that the principal has no right to control or direct the physical movements of his agent in accomplishing the final results for which he is employed, then the agent is merely an agent and not a servant; and (save for matters with which we are not presently concerned) the principal will not be liable for physical harm or injury caused by the negligent physical conduct of his agent (who is not a servant) during the performance of the principal’s business, “unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.” Kourik v. English, 340 Mo. 367, 100 S.W.2d 901, 905. (Emphasis added).

Id. at 271. In other words, the principal is generally not liable for the actions of an agent when the principal has no realistic right of control over those actions.

Aunt, as acknowledged by the majority, had no realistic right of control over Nephew’s actions in the moments leading up to the accident. The fact that Aunt controlled the destination of the trip — a widowers’ meeting in Troy, Missouri — is not sufficient to support the conclusion that Aunt and Nephew were in a principal/agent relationship that warrants holding Aunt liable for Nephew’s negligence.1

*613This conclusion is fully supported by Stover v. Patrick, 459 S.W.2d 393 (Mo. banc 1970). Prior to Stover, Missouri law held that “negligence of the driver of an automobile is imputable to an occupant and bars his recovery.” Id. at 398. In Stover, the Court undertook “to re-examine this question.” Id. at 399. After reviewing cases from other jurisdictions that did not find that mere ownership gave a passenger the right of control, this Court concluded that “co-ownership of an automobile does not give a realistic right of control over its movement to a passenger-owner and that absent evidence of other facts which establish a basis for imposing liability on the passenger-wife for acts of her driver-husband, the negligence of the latter should not be imputed to the former merely because of joint ownership of the vehicle.” Id. at 401.

The principal opinion limits the application of Stover to joint ownership cases. Although the facts in Stover related to joint ownership by a husband and wife, nothing about the rule announced in that case suggests it should be so limited. The rationale underlying Stover is that passengers who happen also to be owners of the vehicle are not liable for the negligence of the driver on the sole basis of their ownership. Indeed, a federal district court in Missouri recently recognized that Stover “held that a passenger in a vehicle does not realistically have control of the vehicle merely because of ownership.” Littleton v. McNeely, No. 05-4313-CV-C-NKL, 2007 WL 3027578 (W.D.Mo. Oct. 15, 2007) (overruling motion for judgment as matter of law on basis that owner had control by sole virtue of ownership). The majority’s conclusion is not consistent with Stover.

Moreover, the precise jury instruction that Aunt is objecting to in this case, which required Nephew’s negligence to be imputed to her, was also given in the trial court in Stover. This Court declared in Stover that, on remand, “a contributory negligence instruction based on negligence of [the driver] should not be given.” Id. Rather than being distinguishable, the rationale of Stover requires reversal and remand unless it is to be overruled.

Aunt was entitled to a jury determination of the factual underpinnings of the principal/agent theory employed to deny her full recovery for her injuries. The existence of an agency relationship requires an assessment of the facts of each case and, for that reason, is regarded as “a question of fact to be determined by the jury when, from the evidence adduced on the question, there may be a fair difference of opinion as to the existence of the relationship.” Johnson v. Bi-State Development Agency, 793 S.W.2d 864, 867 (Mo. banc 1990). As the preceding discussion demonstrates, there are certainly grounds for a fair difference of opinion as to whether Aunt and Nephew were in a principal/agent relationship when Nephew drove her to the widowers’ meeting. The instructions in this case erroneously treated this factual question as a foregone conclusion, thus depriving Aunt of a factual determination by a jury of her peers.

I would reverse and remand for a new trial.

. Even if it were conceded for the sake of argument that Aunt did have the right to control Nephew and that there was a fiduciary relationship, there is no basis for conclud*613ing that Nephew had any authority to alter Aunt’s legal relationship with a third party. In either case, an essential element required to find a principal/agent relationship is missing.