Friday, January 6, 2012

Imputing a driver's negligence to the owner of a car

Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605 (Mo. banc 2008):

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 a 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

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