Liggett & Myers Tobacco Co. v. De Parcq

• Decision Date: 13 September 1933
• Docket Number: No. 9704.,9704.
• Citation: 66 F.2d 678
• Parties: LIGGETT & MYERS TOBACCO CO. v. DE PARCQ.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 678 (1933)

LIGGETT & MYERS TOBACCO CO. v. DE PARCQ.

No. 9704.

Circuit Court of Appeals, Eighth Circuit.

July 19, 1933.

Rehearing Denied September 13, 1933.

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L. P. McNally, of Minneapolis, Minn., and F. L. Fuller, of New York City (F. H. Stinchfield and Donald A. Holmes, both of Minneapolis, Minn., on the brief), for appellant.

Mortimer H. Boutelle, of Minneapolis, Minn. (A. H. David and Robert J. McDonald, both of Minneapolis, Minn., on the brief), for appellee.

Before KENYON and GARDNER, Circuit Judges, and DEWEY, District Judge.

GARDNER, Circuit Judge.

This is an action brought by appellee to recover damages for personal injuries alleged to have been sustained by him as the result of the negligent driving of an automobile by an employee of the appellant.

The parties will be referred to as they appeared below.

It is alleged in the complaint that plaintiff was riding as a passenger in an automobile driven by James K. Thompson and then being used in the business of defendant Liggett & Myers Tobacco Company, upon a state highway in Marshall county, Minn., and, when about four miles north of Middle River, Minn., defendants "so carelessly and negligently and unlawfully operated, managed and controlled the said automobile in such a manner so that the said automobile was caused to turn over on said highway and plaintiff was thereby caused to suffer and sustain injuries to his person." It is also alleged that the automobile at the time of the accident was being driven at a rate of speed that was greater than reasonable and proper under the circumstances; that proper lookout was not kept; that the automobile was not kept under reasonable and proper control; that defendants carelessly and negligently failed to keep the automobile in reasonably safe condition, and failed and omitted to make reasonable inspection thereof, and that, while the automobile was out of repair and in a dangerous condition known to the defendants but unknown to the plaintiff, it was caused to be driven into and through some loose gravel on the highway and thereby caused to be thrown out of its course, and the left front wheel of the automobile was caused to break and collapse, and said automobile was thereby caused to turn over on said highway, and plaintiff was thereby caused to suffer and sustain a fracture of some of the vertebræ and injuries to his spinal cord, etc.

The answer of the defendant, Liggett & Myers Tobacco Company, admits its corporate existence, denies that Thompson, who was joined as a defendant, was acting as its agent in inviting or permitting plaintiff to ride in said automobile, denies generally the allegations of the complaint, except as therein admitted, and alleges plaintiff's contributory negligence. It also sets up as a separate defense that at the time of the accident the Minnesota Workmen's Compensation Act (Minn. St. 1927, § 4261 et seq.) was in effect; that plaintiff was employed by his father at the time the accident occurred, and was acting in the scope of his employment in the furtherance of his employer's business, and that both he and his employer had elected to come under, and were bound by, the Minnesota Workmen's Compensation Act; that plaintiff, pursuant to the terms of said act, had proceeded against his employer and the insurer of his employer, and had been awarded compensation under said act; and that, by reason of the facts so pleaded, plaintiff's employer and his insurer had become subrogated to any rights of plaintiff against the defendant, Liggett & Myers Tobacco Company, on account of the injuries received by him.

Plaintiff's reply puts in issue the affirmative allegations of defendant's answer.

At the close of all the testimony, defendant moved for a directed verdict, which the court denied, sending the case to the jury upon instructions to which no exceptions are taken. The jury returned a verdict for plaintiff in the sum of $32,800, and from the judgment entered thereon defendant, Liggett & Myers Tobacco Company, has appealed. The questions presented by the appeal are substantially those growing out of the action of the court in denying defendant's motion for a directed verdict, and may be stated as follows: (1) Was there substantial evidence of negligence? (2) Was there substantial evidence of a waiver of a rule of the defendant forbidding employees to carry passengers as guests in the cars of the employer? and (3) Was the plaintiff precluded from recovering by virtue of the Minnesota Workmen's Compensation Act?

Plaintiff, at the time of the accident in which he received his injuries, June 9, 1923, had been living with his parents at Thief River Falls, Minn., where his father owned and operated the Brummund Hotel. He was in the employ of his father, doing general work at the hotel. Defendant was engaged in the sale of tobacco products; its business extending largely throughout the United States, including the state of Minnesota. One James K. Thompson was at that time one of defendant's soliciting salesmen, his territory including the northwestern part of Minnesota, which he covered from the city of Thief River Falls. He had for some time been making his headquarters at the Brummund Hotel, and from that place covered for his company the northwestern part of Minnesota. Defendant supplied Thompson with a model T Ford roadster, with a large square box in the rear, in which he carried tobacco for cash sales and samples, and advertising matter and materials. Thompson stopped at the Brummund Hotel periodically, remaining there from two to three weeks at a time while visiting neighboring towns.

On the morning of June 9, 1923, Thompson asked plaintiff to go with him on a trip to Warroad, a Minnesota town on the Canadian border, about 100 miles north from Thief River Falls. Plaintiff was employed at his father's hotel at the time, and, after talking the matter over with his father, was instructed to go with Thompson and arrange with hotel keepers at Roseau and Warroad to place posters in their lobbies, announcing the reopening of the Brummund Hotel which had been damaged by fire in May. Plaintiff was furnished expense money by his father. Thompson was to call on customers and post advertising on the road, while plaintiff was to assist him in posting the advertising. Thompson, however, knew that plaintiff was going to do work for his father.

The day was pleasant, clear, bright, and cool. The route followed was the main highway. Plaintiff testified that the highway was in good condition; that in the center of the highway were two well-traveled ruts or paths, and there was loose gravel and sand on either side out on the shoulder. At the point where the accident happened, plaintiff testified that the highway was clear, about fifteen or twenty feet wide; that there was very little traffic on it, and there were two well-worn paths, but only one lane of traffic. On either side there was a shoulder and a gradually sloping ditch. The road was level straight, and smooth. As to the handling of the car by Thompson, plaintiff testified as follows:

"Q. Well, let's see now; then for a period of about 600 feet before the accident happened, he had been traveling on the left side of the road? A. Yes, sir.

"Q. And where were the right front and the right rear wheels traveling, with respect to the center marks? A. That would mean that the left front and the left hind wheel were up on the left shoulder of the road, and the right front and the right hind wheel were up on the high territory or high place between the two well traveled places in the road, so that he was traveling in one of those main traveled paths.

"Q. Well, was there any large amount of sand and gravel accumulated outside of those ruts? A. It was noticeable that there was, yes. That strip of gravel would be between the left front and rear wheels, and the right front and rear wheels as I have described the road, and the car.

"Q. Well, after Thompson traveled for about 600 feet on the left side of the road, what did he then do? A. He made an attempt to run back into the center of the road.

"Q. At that time what speed was he going? A. Probably between 25 and 30 miles.

"Q. And was that the speed he had been traveling approximately all the way? A. Approximately.

"Q. And as he was going at a speed of 25 or 30 miles an hour, which way did he turn the automobile? A. To the right.

"Q. And when he turned the car to the right, did he maintain the same speed, or a different speed? A. At first the same speed.

"Q. When he turned to the right, what happened? A. In order to turn back to the center of the road, the left front wheel had to mount that ridge of loose sand, or gravel, which I just described, and when it started to cut in, it didn't want to climb over readily, and the car started to shimmy a little bit, jerked, and it was necessary to cramp it, which he did. He gave it the gas in order to follow it through. He pulled it around to the right, and that car turned over to the left and rolled completely over onto its feet.

"Q. You say he increased his speed. To what extent did he increase his speed? A. That would be pretty hard to say. There was no speedometer on his car. He increased the gas, I should say.

"Q. He stepped on the gas? A. Yes, he stepped on the gas.

"Q. Was that after the car had shimmied? A. Yes.

"Q. And before it mounted or went over the gravel? A. As it was shimmying.

"Q. I see. Then when he cramped it, or turned it, which way did he turn it, to the right or to the left? A. To the right.

"Q. Did he do that quick or gradually? A. Rather quickly at first.

"Q. Did he cramp it and turn quickly before or after the car had shimmied? A. After it had shimmied. * * *

"Q. State how he turned the wheel after it would not go over or climb over the ridge of sand and gravel? A. He gave it a sudden, quick jerk.

"Q. And that jerk was to the right or to the left? A. To the right.

"Q. Did this left...