Bach v. Winfield-Foley Fire Protection District

The primary issue before this Court is whether a driver’s negligence can be imputed to an owner-passenger of an automobile.

Sandra Bach (“Aunt”) appeals from the trial court’s judgment, which awarded her $15,000 for her injuries in an automobile accident in which the driver’s, Samuel Madden’s (“Nephew”), negligence was imputed to her. This Court finds that it was proper to impute Nephew’s negligence to Aunt in that a principal/agent relationship *607existed between them. The judgment of the trial court is affirmed.

I. Facts

Aunt and Nephew were involved in an automobile accident when Nephew rear-ended a fire truck, which was parked partially in his lane with its emergency lights on as it was attending to a previous accident.1 At the time of the accident, Nephew, age 16, was using Aunt’s automobile to drive her to a widows’ meeting. She was unable to drive herself because she did not have a license and did not know how to drive.2

Aunt sued Nephew and the District. She alleged that the District negligently failed to exercise the highest degree of care by parking a fire truck in a lane of traffic and failed to adequately warn her of the blocked roadway. This alleged negligence contributed to Nephew’s automobile accident and caused Aunt to suffer injury and damages. In response, the District argued that Aunt’s own negligence contributed to her injuries, as she and Nephew were engaged in a joint venture or joint journey at the time of the accident.3 The District contended that Aunt was responsible for Nephew’s, her agent’s, contributory fault as if it were her own.

Aunt settled with Nephew for $25,000, and he was dismissed from the suit. Her case against the District went to trial. The jury found that she had suffered $100,000 in damages and returned a verdict apportioning 15 percent of the fault to the District and 85 percent of the fault to Aunt.4 After the jury returned a verdict, but before the court entered its judgment, the District moved to apply the $25,000 she received from her settlement with Nephew against the judgment. The motion was overruled. The trial court entered judgment ordering the District to pay Aunt $15,000. After the denial of her motion for new trial, she appealed and the District cross-appealed. This Court has jurisdiction pursuant to Missouri Constitution article V, section 10, as the case was taken on transfer after opinion by the court of appeals.

II. Submission of Jury Instructions

Aunt asserts that the trial court erred in giving Instructions number 7, 8, 9, 10 and Verdict A, and in refusing Instructions B, C, and “refused” Verdict A. She also argues that the trial court erred in overruling her motion for a new trial on the issue of liability because the evidence did not support the submission of comparative fault as to her because any negligence of the driver, Nephew, cannot be imputed to her.5 Aunt contends that Nephew’s negli*608gence cannot be imputed to her since she was a passenger in the automobile and, despite owning the automobile, she did not have a mutual right to control the automobile as she did not know how to drive.

Whether a jury was properly instructed is a question of law that this Court reviews de novo. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). Review is conducted in the light most favorable to the submission of the instruction, and if the instruction is supportable by any theory, then its submission is proper. Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991). Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action. Ploch v. Hamai, 213 S.W.3d 135, 139 (Mo.App.2006).

In deciding whether the submitted instructions supported comparative fault as to Aunt, the first issue to be determined is whether a principal/agent relationship existed between Aunt and Nephew.

Agency is the fiduciary relationship resulting from the manifestation of consent by an agent to a principal that the agent will act on the principal’s behalf and subject to his control. State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002); Restatement (Second) of Agency sec. 1 (1958). It is a relationship where the principal only has the right to control the ends of the agent’s activities; the principal does not have the right to control or direct the physical movements of her agent in accomplishing the final result. See Douglas v. Nat’l Life & Accident Ins. Co. of Nashville, Tenn., et al, 236 Mo.App. 467, 155 S.W.2d 267, 271 (1941). Neither a contract nor an express appointment and acceptance is necessary, but consent may be manifested and the relationship may be created by words and conduct. Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968). Compensation is not essential to the creation or existence of the relationship; agency may be a wholly gratuitous undertaking. Id. An agency relationship may still exist even if the parties did not intend to create the legal relationship or to subject themselves to the liabilities that the law imposes as a result. Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.1953).

A principal is responsible for the acts of her agent, as long as the agent is acting with actual authority. Lynch v. Helm Plumbing & Elec. Contractors, Inc., 108 S.W.3d 657, 660 (Mo.App.2002). Actual authority is authority that the principal has given, either expressly or impliedly, to the agent, empowering the agent to act on the principal’s behalf. Hyken v. Travelers Ins. Co., 678 S.W.2d 454, 457 (Mo.App. 1984). Specifically, when a person operates an automobile of another while the owner is a passenger, acquiescing in the operation, there is a presumption that the driver is the agent of the owner and within the scope of his agency. Perricone v. DeBlaze, 655 S.W.2d 724, 725 (Mo.App.1983) (citing Campbell v. Fry, 439 S.W.2d 545, 548 (Mo.App.1969)).

In order to establish a principal/agent relationship between Aunt and Nephew, the principal must have a “right to control” the agent. See Gardner v. Simmons, 370 S.W.2d 359, 362 (Mo.1963). Aunt argues that she did not have the “right to control” Nephew. She cites to Manley v. Horton, 414 S.W.2d 254 (Mo. 1967), and Stover v. Patrick, 459 S.W.2d 393 (Mo. banc 1970), to argue that there is *609a conflict in Missouri law regarding an owner-passenger’s right to control an automobile. Aunt incorrectly contends that Manley held that ownership of an automobile automatically gives a passenger a right to control the automobile and, in contrast, Stover held that joint ownership of a vehicle in which the owner is riding as a passenger does not establish as a matter of law the owner’s right to control the vehicle. These opinions, however, are not in conflict as Aunt mischaracterizes their holdings.

In Manley, the passenger Manley was injured in an automobile accident when the automobile he was riding in was hit by another automobile occupied by driver Horton and passenger Pruwitt. 414 5.W.2d at 255. Manley sued both Horton and Pruwitt, and Pruwitt filed a motion for a directed verdict, which was sustained. Id. at 255-56. On appeal, Manley argued that the directed verdict was improperly sustained because Pruwitt was liable under a theory of joint venture as a matter of law. Id. at 259-60. The court did not find that a joint venture existed as a matter of law, but determined that there was evidence indicating that Pruwitt may have been involved in a joint venture. Id. at 260-61. It stated that even though Pru-witt was asleep at the time of the accident, this did not necessarily eliminate his right of control, and the issue of joint venture should have been submitted to the jury. Id.

In Stover, driver-husband and passenger-wife were injured in an automobile accident when defendant’s automobile collided with theirs. 459 S.W.2d at 394. Husband was found to have been contribu-torily negligent in causing the accident. Id. at 397. Defendant argued that since Wife co-owned the vehicle she was riding in, her recovery should be barred by Husband’s contributory negligence. Id. at 397-98. This Court found that mere joint ownership of an automobile, standing alone, was not sufficient to impute the negligence of a driver-spouse to a passenger-spouse. Id. at 401.

These cases are not in conflict. Manley speaks to the issue of whether the jury should have been permitted to decide if a joint venture existed, while Stover addresses whether negligence can be imputed to a passenger-spouse based on mere evidence of co-ownership of an automobile. The dissent emphasizes Stover's conclusion that co-ownership of an automobile does not give a realistic right of control over its movement to a passenger-owner. That holding, however, is limited to where there is an “absentee of] evidence of other facts which establish a basis for imposing liability on the passenger-wife for acts of her driver-husband.”6 Id.

Unlike in Stover, Aunt and Nephew were not co-owners of the automobile; Aunt was the sole owner and Nephew was driving at her authorization. Nephew had agreed to drive Aunt wherever she needed to go and, in exchange, he was allowed personal use of the automobile. When he was driving her, it was at Aunt’s behest and subject to her direction as to where to go. Liability is not based here on mere ownership of the vehicle. In light of all these facts, there was sufficient evidence to establish a basis for finding a principal/agent relationship to impute liability from Nephew to Aunt. As such, Stover is not applicable to Aunt’s case.

Although Aunt and Nephew may not have intended to create a principal/agent *610relationship, the evidence indicates that such a relationship existed between them. In reality, Aunt did not control every physical movement of Nephew while he was driving her automobile, but she did have the right to control, and did so, by directing when the trip occurred and the ends of his activities-the destination of the trip. Under the laws of agency, Aunt, as principal, did not need to control or direct every movement of her agent, Nephew, only the accomplishment of the final result. See Douglas, 155 S.W.2d at 271.

The dissent relies on Douglas to support its contention that “the principal is generally not liable for the actions of an agent when the principal has no realistic right of control over those actions.” It fails to recognize that this is true “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.” Douglas, 155 S.W.2d at 271. At the time of Nephew’s accident, he was driving Aunt to her club meeting as he had been expressly authorized and directed to do. Despite her inability to drive and her lack of a license, she had the right to control the automobile trip and he was acting in accordance with that direction. As such, a principal/agent relationship was created and Aunt is responsible for Nephew’s actions.7

In reviewing contested jury instructions in the light most favorable to their submission, the instructions at issue are supportable under the theory of agency. Under the facts of this case, the evidence is sufficient to support the conclusion that Aunt and Nephew were operating as a principal and agent. The trial court did not err in the submission of the instructions imputing Nephew’s negligence to Aunt or in overruling Aunt’s motion for a new trial.

III. The District’s Request to Amend its Answer

On cross-appeal, the District argues the trial court erred and abused its discretion in refusing to permit it to amend its answer and assert a right of set-off and in refusing to offset its judgment by $25,000, the amount of Aunt’s settlement with Nephew. When Aunt filed her Second Amended Petition for Damages, the District knew that she had settled her case against Nephew for $25,000. The court entered an order allowing the District to file responsive pleadings to Aunt’s petition. It timely filed an answer, but failed to allege a right to set-off. Aunt’s case proceeded to trial, and the jury delivered a verdict. After the verdict was read, the District orally moved to apply the $25,000 settlement against the verdict. The court overruled the motion because it had not pleaded or proved the set-off as an affirmative defense. Rule 55.08; Norman v. Wright, 153 S.W.3d 305, 306 (Mo. banc 2005) (“[A] reduction under section 537.060 must be pleaded and proved as an affirmative defense.”). The District then moved for leave to amend its answer and apply the settlement amount to reduce the judgment against it. The trial court overruled the motion.

It is within the trial court’s broad discretion to allow or disallow amendments to pleadings. Lester v. *611Sayles, 850 S.W.2d 858, 869 (Mo. banc 1993). An appellate court will not disturb a trial court’s denial of a motion to amend a pleading unless it is clearly erroneous. In re Estate of Goldschmidt, 215 S.W.Sd 215, 223 (Mo.App.2006). This Court considers the following factors when determining whether the trial court erred in denying leave to amend: (1) the hardship to the moving party; (2) the moving party’s reason for omitting the matter from the original pleadings; and (3) any injustice that would result to the nonmoving party if the court granted leave to amend. Lester, 850 S.W.2d at 869.

The District relies on Hoover v. Brundage-Bone Concrete Pumping, Inc., 193 S.W.3d 867 (Mo.App.2006), to support its argument that the trial court should have granted it leave to amend its answer. In Hoover, the court found that the trial court abused its discretion in refusing to allow defendants to amend their answer after trial to plead the defense of set-off. Id. at 872-73. The District’s case, however, is distinguishable in that the defendants in Hoover did not learn of plaintiffs section 537.060 settlement until after trial due to plaintiffs failure to supplement their interrogatory answers. Id. at 872. Since they had no knowledge of the plaintiffs settlement, the Hoover defendants could not have asserted a right of set-off in their pleadings prior to trial. The District has no such defense. The District concedes that it had been notified of Aunt’s settlement prior to trial and had the opportunity to allege a right to set-off in its answer to Aunt’s Second Amended Petition, but failed to do so. Under these circumstances, the trial court’s overruling of the District’s motion to amend its answer was not clearly erroneous. The trial court, therefore, did not abuse its discretion in refusing to permit the District to amend its answer or in refusing to offset the $25,000 settlement payment against the judgment.

IV. Conclusion

The judgment of the trial court is affirmed.8