72 F.2d 81 (D.D.C. 1934), 6109, Peabody v. Marlboro Implement Co.

Docket Nº6109, 6110.
Citation72 F.2d 81
Party NamePEABODY v. MARLBORO IMPLEMENT CO. (two cases).
Case DateJune 11, 1934
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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72 F.2d 81 (D.D.C. 1934)

PEABODY

v.

MARLBORO IMPLEMENT CO. (two cases).

Nos. 6109, 6110.

United States Court of Appeals, District of Columbia.

June 11, 1934

Argued April 4, 1934.

Appeal from the Supreme Court of the District of Columbia.

Leonard J. Ganse, of washington, D.C., for appellants.

Edwin A. Swingle and Ernest A. Swingle, both of Washington, D.C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

Appeals from judgments upon directed verdicts for the defendant in two related actions for damages for personal injuries arising from an automobile accident. The appellants are husband and wife and were plaintiffs below; their respective cases were consolidated for trial.

In the first case, Mrs. Peabody sued the Marlboro Implement Company, a corporation, alleging that one Howard I. Beall, while acting as agent and and employee of the defendant, did operate an automobile belonging to defendant upon the streets of the city of Washington, D.C., and then and there carelessly and negligently ran into and over the plaintiff, inflicting great injuries upon her person, for which she prayed judgment in damages.

In the second case, Mr. Peabody claimed damages from the defendant as husband of the preceding plaintiff, because of the expenses incurred by him in her treatment and the loss of her services and consortium as his wife, resulting from her injuries.

The defendant, the Marlboro Implement Company, for its answer admitted the ownership of the automobile operated by Beall at the time of the accident, but denied that Beall was then operating it as the agent or employee of the defendant. The defendant also denied that the accident was caused by negligence on the part of the driver, Beall, and alleged that the plaintiff Mrs. Peabody was guilty of negligence contributing to the accident.

Testimony was introduced by the parties upon the several issues, and at the close of the case the trial justice directed a verdict for the defendant in each case in the following terms: 'In this case, ladies and gentlemen of the jury, you will return a verdict for the defendant. I do not think there is any evidence to show that the driver of this car was engaged at the time in the course of his employment duties when the collision occurred. I am also inclined to think that the plaintiff herself was guilty of such contributory negligence as would bar her right to recovery. You will therefore return a verdict for the defendant. That applies to both cases. ' Judgment was entered for the defendant in both cases, and the present appeals were taken.

In our opinion the uncontradicted testimony contained in the record sustains the trial court's conclusion that Beall at the time of the accident was not operating the automobile as the agent or employee of the defendant

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company, and therefore that the company was not liable in damages for the accident.

At the trial Beall testified, in substance: That the automobile he was driving at the time of the accident belonged to the defendant company and the tags upon it were in the company's name; that he kept the car when not in use at a garage upon his premises; that the agreement when he went to work for the company was that the car was to be used by him only for the company's business, but upon the occasion of the accident he was using it for his own personal business. He testified that his residence was in the city of Washington and that he was employed by the company as a collector, mostly collecting delinquent accounts in the state of Maryland; that the company had its office and store at Marlboro, Md., and had none in the District of Columbia; that he would report his collections in person to the company on Tuesdays and Fridays; that he had no particular hours of employment; that he usually got away from hom about 7:30 in the morning and returned on week days at about 6 o'clock or later in the evenings; that on Saturdays he was usually through work anywhere from noon to 4 or 5 o'clock in the afternoon; that on the Saturday of the accident he finished his work between 1 and 2 o'clock, then came into his house; that there was no more work he had to do that day for the defendant company after 1 or 2 o'clock in the afternoon; that he then washed and polished the car and after that he rode in the car to Sears, Roebuck at about 4 or 4:30 o'clock; that he went there for the purpose of purchasing some socks and neckties for himself which he did and then proceeded home; that on his way home the accident happened. The witness further testified that he did not collect any money in the District on Saturday; that he collects in the District only on special accounts which reach him by reference from Mr. Pyles, the general manager of the company; that he did not collect any special account on that Saturday either in the morning or afternoon; that he had been collecting that day in Prince Georges county, Md.; that he did not perform any service of any kind for the defendant company on that Saturday after he brought the car back to his house about 1 or 2 o'clock.

The witness W. E. Pyles testified: That he was the general manager and treasurer of the company at and before the time of the accident; that Beall was a collector for the company, and was employed for the collection of 'charged off' accounts, accounts which were considered no good at the end of the year; that the company furnished him with the automobile as a means of transportation; that the automobile when not in use was kept in a garage at Beall's residence; that when witness hired Beall he gave him instructions that the car was...

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