Breeding v. Massey

• Decision Date: 29 June 1967
• Docket Number: No. 18475.,18475.
• Citation: 378 F.2d 171
• Parties: Bobby BREEDING and Hugh Breeding, Inc., Appellants, v. Ben MASSEY and Mrs. Ben Massey, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

378 F.2d 171 (1967)

Bobby BREEDING and Hugh Breeding, Inc., Appellants, v. Ben MASSEY and Mrs. Ben Massey, Appellees.

No. 18475.

United States Court of Appeals Eighth Circuit.

June 5, 1967.

Rehearing Denied June 29, 1967.

COPYRIGHT MATERIAL OMITTED

Alston Jennings, Little Rock, Ark., for appellants.

Robert V. Light, Little Rock, Ark., for appellees. Kenneth J. Will, Houston, Tex., Cecil A. Tedder, Jr., Comer Boyett, Jr., Searcy, Ark., and G. Ross Smith, Little Rock, Ark., with him on the brief.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This action by Ben Massey and Mrs. Ben Massey is for the recovery of damages sustained arising as a result of a collision occurring about 10:45 p. m. on May 17, 1963, on Highway 67 at its intersection with State Highway 36, near Searcy, Arkansas, between a tractor-trailer unit operated by Ben Massey traveling south on Highway 67 and a tractor owned by the defendant Hugh Breeding, Inc., and operated by the defendant Bobby Breeding which was proceeding in a northerly direction and was turning left off Highway 67 onto Highway 36.

Liability of the driver Bobby Breeding is predicated upon his negligent operation of the tractor and liability of Hugh Breeding, Inc., is based upon such negligent operation within the scope of employment and upon the additional basis of negligent entrustment of the vehicle to an incompetent driver. Punitive damages are claimed only on the negligent entrustment claim and only as against Hugh Breeding, Inc.

It is undisputed that Ben Massey suffered severe personal injuries as a result of the collision. No claim is made upon this appeal that the damages awarded are excessive and evidence as to extent and nature of the injuries does not appear in the record. Mrs. Massey's claim is based on loss of consortium.

This action was commenced in the state court and removed to the federal court. Jurisdiction, based upon diversity of citizenship and the requisite amount is established.

The case was tried to a jury and submitted upon interrogatories which, together with the jury's answers thereto, read:

"1. Do you find from a preponderance of the evidence that defendant Bobby Breeding was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?

Answer: Yes.

(Yes or No)

"2. Do you find from a preponderance of the evidence that plaintiff Ben Massey was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?

Answer: No.

(Yes or No)

"3. (This interrogatory related to the percentage of negligence of the respective parties and was to be answered only if plaintiffs were guilty of contributory negligence. The interrogatory was not answered.)

"4. Do you find from a preponderance of the evidence that Bobby Breeding was acting in the course and scope of his employment by Hugh Breeding, Inc., at the time of the collision?

Answer: Yes.

(Yes or No)

"5. Do you find from a preponderance of the evidence that Hugh Breeding, Inc., had negligently entrusted the vehicle involved to Bobby Breeding at the time of the collision and that such negligent entrustment was a proximate cause of the collision?

Answer: Yes.

(Yes or No)

"6. What do you find from a preponderance of the evidence to be the actual or compensatory damages suffered as a proximate result of the collision by the respective plaintiffs?

                  Answer: Ben Massey . .  $115,000
                          Mrs. Ben Massey $ 25,000
                

"7. Do you find from a preponderance of the evidence that Hugh Breeding, Inc. was guilty of wilful and wanton misconduct in entrusting the vehicle involved to Bobby Breeding?

Answer: Yes.

(Yes or No)

"8. If your answer to Interrogatory No. 7 was `Yes\', do you award punitive damages to the plaintiffs against defendant Hugh Breeding, Inc.?

Answer: Yes.

(Yes or No)

If your answer is `Yes\', in what amount?

Answer:

                  Ben Massey . . . . . $25,000.00
                  Mrs. Ben Massey . .  $10,000.00"
                

The answer to each interrogatory was signed by the jury foreman.

Pursuant to the interrogatory answers, judgment was entered against both defendants for actual damages in favor of Ben Massey for $115,000 and Mrs. Ben Massey for $25,000, and in addition punitive damages were awarded against Hugh Breeding, Inc., in favor of Ben Massey for $25,000 and Mrs. Ben Massey for $10,000. Motions for judgment n. o. v. and new trial were made and overruled. This timely appeal followed.

The points relied upon for a reversal are thus stated by appellants (appellants will in this opinion usually be referred to as defendants):

"I. The motion of Hugh Breeding, Inc., for a directed verdict should have been granted.

"II. The jury should have been instructed as a matter of law that Bobby Breeding was not in the course and scope of his employment by Hugh Breeding, Inc., at the time of the occurrence complained of.

"III. The Court should have instructed the jury as a matter of law that Hugh Breeding, Inc., did not negligently entrust the vehicle to Bobby Breeding at the time of the occurrence complained of.

"IV. The Court erred in submitting to the jury the issue of punitive damages and in permitting testimony as to the net worth of Hugh Breeding, Inc.

"V. The Court erred in permitting the introduction of testimony concerning arrests, convictions and pleas of guilty of Bobby Breeding on occasions prior to May 17, 1963."

Hugh Breeding, Inc., made timely motions for directed verdict, for judgment n. o. v. and to withdraw issues II and III hereinabove stated from the jury, and the defendants have preserved for review the errors hereinabove stated upon which they rely for reversal.

Before reaching the legal issues, we will summarize the material facts. Bobby Breeding is the grandson of Hugh Breeding, president and principal shareholder of the Company, and the nephew of Cecil and Lyle Breeding, vice-presidents of the Company. When first hired by the Company, at age eighteen, in 1949 or 1950, he worked during summer vacations greasing and washing, and changing tires. He subsequently spent eight years in the Army and Navy. On July 20, 1960, after his discharge, he was rehired by the Company. Initially, he worked part-time after school on jobs similar to those he had done during summer vacations in 1949-1950; however, after about four months, he quit school and asked to drive a truck for the Company. He was hired by the Company as a driver after he had undergone a month's training as a student driver, during which he made several trips with experienced drivers without pay.

The Company never required Bobby Breeding to submit the personal history form usually required of driver applicants. He continued as a Company driver until the accident, May 17, 1963. He had no accidents or arrests while driving Company vehicles during this period.

Bobby Breeding was in three accidents with his own automobile which involved drinking and driving between 1955 and the date of his reemployment. These occurred in Noel, Missouri, in 1955; between Anderson and Langley, Missouri, in 1958; and in Okmulgee, Oklahoma, April 1, 1960 (minor accident). He was also involved in a drinking and driving incident in Okmulgee, Oklahoma on May 4, 1960 (no accident). Hugh Breeding knew about the 1955 and 1958 accidents, and Cecil Breeding knew about the others.

Bobby Breeding was involved in another accident with his own automobile near Tulsa, Oklahoma, in 1962. The Company safety manager and dispatcher were informed about this accident. These five incidents were the only evidence introduced to show Bobby Breeding's addiction to the use of intoxicating liquors or to establish his habit of driving while intoxicated. There is no evidence to establish that Bobby Breeding was intoxicated at any prior time while operating the corporate defendant's vehicles.

A few days prior to the accident involved in the present case, Bobby Breeding, with a relief driver, picked up a load of missile fuel at Denver, Colorado, dropped the truck-trailer for unloading at a missile site near Searcy, Arkansas, and drove the truck-tractor to a Searcy motel.

The Company provided the Searcy motel quarters at its own expense. In addition to the accommodations, the Company also paid Bobby Breeding $24.00 a day, during the layover while he was awaiting unloading of the truck-trailer. He was on Company call twenty-four hours a day.

Although the Company had made some arrangements for the drivers to eat at the motel, Bobby Breeding ate there only once or twice, because he considered the food poor and the prices high. (The drivers paid for their own meals.) He and the other driver used the truck-tractor to go out on the highway and eat and "this sort of thing" during the three-day layover prior to the accident.

About 6:00 p. m. on the might of the collision, Bobby Breeding took his relief driver to the Searcy bus station, using the truck-tractor, per telephone instructions from the Company's main terminal at Tulsa, Oklahoma. Thereafter, he drove the truck-tractor to a truck stop on Highway 67 intending to eat. On the way, he stopped and purchased a pint of whiskey. This bottle was found half empty immediately after the accident. At the truck stop, he had two drinks of whiskey but did not eat. He washed the truck windshield and kicked the truck tires. The accident occurred on the return trip from the truck stop to the motel.

At the trial, Company witnesses asserted that Bobby Breeding violated a Company rule against using the truck-tractor for anything other than Company business. They stated that he had been instructed to park the truck and not use it until it was necessary to pull the trailer. Bobby Breeding stated he knew about the rule. However, the rule was not contained in an otherwise detailed Company rule book or its driver's manual, and cross-examination of appellants' witnesses indicated uncertainty as to...