Abraham v. S. E. Onorato Garages

• Decision Date: 06 November 1968
• Docket Number: No. 4749,4749
• Citation: 446 P.2d 821,50 Haw. 628
• Parties: , 50 Haw. 639 Abbie A. ABRAHAM, Plaintiff-Appellant, v. S. E. ONORATO GARAGES, a California Corporation doing business in the State of Hawaii as Marks Center Parking, aka S. E. Onorato Garages, Everett C. McCoy; and James R. Anderson, Defendants-Appellees.Supreme Court of Hawai'i
• Court: Hawaii Supreme Court

Page 821

446 P.2d 821

50 Haw. 628, 50 Haw. 639

Abbie A. ABRAHAM, Plaintiff-Appellant,

v.

S. E. ONORATO GARAGES, a California Corporation doing business in the State of Hawaii as Marks Center Parking, aka S. E. Onorato Garages Everett C. McCoy; and James R. Anderson Defendants-Appellees. No. 4749. Supreme Court of Hawai'i. Nov. 6, 1968. Rehearing Denied Nov. 18, 1968.

Syllabus by the Court

1. In considering the validity of the granting of summary judgment under H.R.C.P., Rule 56(c), the appellate court must determine whether any genuine issue as to a material fact was raised and whether the moving party was entitled to judgment as a matter of law.

2. The inferences drawn from the underlying facts alleged in the materials submitted by the parties and considered by the court in connection with a motion for summary judgment under H.R.C.P., Rule 56(c) must be viewed in the light most favorable to the party opposing the motion.

3. In order to recover from an employer for damages resulting from the torts of his employee under the theory of respondeat superior, the act complained of must have been within the scope of the employment.

4. In order to recover on the theory of negligent promotion to a position of responsibility as a garage manager, there must be a showing that the employer knew or should have known that the employee was incompetent or unfit to perform the job to which he was promoted.

5. In order to recover under the theory of negligent entrustment of an automobile to an incompetent driver, there must be a showing that the facts giving rise to the alleged incompetency were known or should have been known to the entrustor at the time of the entrustment.

6. In order to prove liability on the part of an employer for negligently failing to control his employee, there must be a showing by the plaintiff that the employer knew or should have known of the necessity and opportunity for exercising such control.

7. In order to hold an employer liable for the consequences of an employee's tort on the ground of ratification, the act which is subject to ratification must have been done on behalf or under the authority of the employer.

8. An employer cannot be held liable for the consequences of an employee's tort on the ground of ratification unless there is clear evidence of the employer's approval of the wrongful conduct. The continuance of the employee's employment alone is insufficient to show such approval.

Joseph A. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel) for plaintiff-appellant.

Alexander C. Marrack, Honolulu (Robertson, Castle & Anthony, Honolulu, of counsel) for defendant-appellee, Onorato Garages.

James F. Ventura, Honolulu (Ronald D. Libkuman, Honolulu, of counsel) for defendant-appellee Anderson.

RICHARDSON, C. J., and MARUMOTO, ABE and LEVINSON, JJ., and DOI, Circuit Judge, assigned by reason of vacancy.

LEVINSON, Justice.

The plaintiff-appellant brought this action for damages alleged to have resulted from injuries sustained by her while she was a passenter in a Mustang automobile driven by one Everett McCoy during the early morning hours of December 18, 1964. McCoy had taken the vehicle from the Marks Center Garage in Honolulu, of which he was manager, and he did so without permission from the owner of the Mustang (hereinafter Owner), who had stored the car there, and without authority from his employer, defendant-appellant S. E. Onorato Garages (hereinafter Onorato).

McCoy was first employed by Onorato on July 13, 1961, as a parking attendant for St. Mary's Square Garage in San Francisco. At the time his employment commenced, Onorato learned that McCoy had a valid driver's license, that he was well recommended by his last employer, and that he was bondable under the blanket insurance policy issued to Onorato. Unknown to Onorato, McCoy had a record of criminal convictions as follows: joyriding as a juvenile seventeen years earlier; assault and battery four years earlier; and the hit and run of a parked vehicle nine months earlier. On March 4, 1963 McCoy was promoted to the position of night manager of the Portsmouth Square Garage in San Francisco. After performing well in that position for approximately nineteen months, he was transferred to Honolulu on October 12, 1964 to become the manager of the Marks Center Garage.

During his period of employment with Onorato and up to the time of his transfer to Honolulu, McCoy's driver's license had been suspended at various times, primarily for failure to present proof of financial responsibility to the proper authorities as required by the California law. Shortly before his transfer to Honolulu, he was convicted for driving while his license was suspended, with the result that his license was suspended for an additional six months. There is some evidence that Onorato knew that McCoy was without a valid license at the time of his transfer, although there is no evidence that Onorato knew that the license had been suspended as opposed to a mere lapsing. As soon as McCoy arrived in Honolulu, he applied for and secured an Hawaiian license, apparently without informing the Hawaii authorities that his California license was suspended, contrary to the requirements of R.L.H.1955, § 160-38. There is no evidence to indicate that Onorato knew that the Hawaii law had not been complied with.

About a month after McCoy arrived on the job, a garage customer (the Owner) delivered a 1965 Mustang for storage. The plaintiff testified that during the period from then until the time of the accident, she saw McCoy driving the Mustang on at least six different occasions, one of which apparently involved a short drag race. McCoy admitted driving the Mustang at least two times prior to the accident. Although McCoy was authorized to drive cars for repairs or polishing when the customer required it, there was no evidence that on any of the above occasions he was driving the Mustang for either of those authorized purposes.

The accident occurred during the early morning of December 18, 1964, prior to the commencement of garage business, when McCoy was driving with several passengers including the plaintiff. McCoy continued to act as manager of the garage until March 11, 1965, at which time his employment was terminated.

Suit was filed by the plaintiff against Onorato, McCoy, and the Owner. Summary judgment was granted in favor of the Owner on May 2, 1966, and in favor of Onorato on December 8, 1967. On December 11, 1967, the case against McCoy was tried and a default judgment of $70,000 was rendered.

The plaintiff moved to set aside the summary judgment which had been granted in favor of Onorato asking the court to take into account all the documents filed in opposition to the original motion for summary judgment as well as testimony adduced at the trial against McCoy and a further exhibit, which was not admitted into evidence at the trial. The motion also asked for a new trial against McCoy on the issue of damages. On December 15, 1967 the motion was denied and judgment as to all the parties was entered. The plaintiff appealed claiming that summary judgments should not have been granted in favor of Onorato or the Owner and that the damages awarded the plaintiff against McCoy are inadequate as a matter of law.

In response to a question asked by the court during oral argument concerning the theory under which the plaintiff was proceeding against the Owner, counsel for the plaintiff admitted that her case against the Owner depended upon Onorato's successful denial of a bailment to it from the Owner. Counsel for Onorato then abandoned its denial of the bailment. The plaintiff's claim against the Owner will therefore be considered abandoned.

A. Summary Judgment

In considering the validity of the granting of summary judgment under H R.C.P. Rule 56(c) ¹, the appellate court must determine whether any genuine issue as to a material fact was raised and whether the moving party was entitled to judgment as a matter of law. Richards v. Midkiff, 48 Haw. 32, 39, 396 P.2d 49, 54 (1964). The inferences drawn from the underlying facts alleged in the materials (affidavits, testimony, exhibits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Where the defendant is the moving party, there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law if, upon viewing the record in the light most favorable to the plaintiff, it is clear that the plaintiff would not be entitled to recover under any discernable theory. The plaintiff contends in substance that the defendant Onorato is liable on each of the following grounds: respondeat superior, negligent promotion of McCoy to position as manager, negligent entrustment of bailed automobiles, negligent failure to control McCoy, and ratification of McCoy's wrongful acts.

Assuming, without deciding, that all of the affidavits, testimony and exhibits urged by the plaintiff to be taken into account are proper for our consideration, we find that the granting of summary judgment in favor of Onorato was proper because there is no theory under which she may recover.

1. Respondeat Superior

In order to recover from an employer for damages resulting from the torts of his employee under the theory of respondeat superior, the act complained of must have been within the scope of the employment. Matsumura v. County of Hawaii, 19 Haw. 496, 500 (1909). Since the plaintiff did not controvert by factual allegations Onorato's deposition testimony asserting that it was not within the scope of McCoy's employment to be driving the Mustang at the time and place of the accident, there is...