Alford v. Noonan

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: CLARK, , and PICKETT and MOORE, Circuit
• Citation: Alford v. Noonan, 259 F.2d 113 (2nd Cir. 1958)
• Decision Date: 16 September 1958
• Docket Number: Docket 24964.,No. 372,372
• Parties: Margaret Ann ALFORD, Plaintiff-Appellee, v. Cornelius J. NOONAN, Defendant-Appellant.

259 F.2d 113 (1958)

Margaret Ann ALFORD, Plaintiff-Appellee, v. Cornelius J. NOONAN, Defendant-Appellant.

No. 372, Docket 24964.

United States Court of Appeals Second Circuit.

Argued June 4, 1958.

Decided September 16, 1958.

James L. Oakes, Brattleboro, Vt. (Gannett & Oakes, Brattleboro, Vt., on the brief), for plaintiff-appellee.

Donald H. Hackel, Rutland, Vt. (Loveland & Hackel, Webber & Costello, Rutland, Vt., on the brief), for defendant-appellant.

Before CLARK, Chief Judge, and PICKETT and MOORE, Circuit Judges.

MOORE, Circuit Judge.

The defendant, Cornelius J. Noonan, appeals from a judgment in favor of the plaintiff for $16,300 entered on a jury's verdict against the defendants Charles Slockbower and Cornelius J. Noonan. Slockbower did not appeal. Jurisdiction is based upon diversity. The errors asserted relate to questions of law.

The complaint in substance charges that in September 1956 plaintiff was riding as a passenger in an automobile owned by defendant Noonan and operated by defendant Slockbower in Manchester, Vermont; that Slockbower "was acting in the scope of his employment by defendant Noonan"; and that as a result of Slockbower's gross negligence in operating the automobile at high speed about 80 miles an hour it plunged over a cliff causing severe injuries to plaintiff.

The facts material to a decision as a matter of law are not in dispute.

Noonan, a man in his late fifties, in 1956, owned a Cadillac convertible. Neither Noonan nor his wife drove a car and Noonan never had held a driver's license. Noonan was in the habit of using three or four friends to drive him around on vacation trips. Slockbower was a distant relative of Noonan. During the summer of 1956 Slockbower drove Noonan on various trips, including several to Manchester, Vermont, where Mr. and Mrs. Noonan stayed at the Equinox House. Slockbower stayed at the same hotel, ate with the Noonans and Noonan paid for Slockbower's room and meals. While there Slockbower became acquainted with plaintiff who was employed as a hostess at the hotel. He and plaintiff frequently saw each other after working hours and Slockbower, sometimes with Mr. and Mrs. Noonan and sometimes without them, would use Noonan's car to take plaintiff and/or her sister, Patricia, on various rides.

At the end of the season certain of the employees of the hotel, to celebrate the last night before the hotel closed, had a party in plaintiff's rooms in the hotel annex. Slockbower and others were there. They talked and drank until after midnight when they decided to go to Granville, New York, to get some pizza at an Italian restaurant. Slockbower went to the garage, took Noonan's car and with only plaintiff with him headed for Granville. Three miles from Manchester, Vermont, the accident occurred.

At the close of plaintiff's case defendant Noonan moved in writing for the direction of a verdict on eleven grounds which are, for appellate purposes, sufficiently embraced within the first ground, i. e.:

"1. That taking the evidence in the light most favorable to the Plaintiff, the evidence fails to show that, at the time of the accident on which this action has been brought, the Defendant Slockbower was acting within the scope of any employment by the Defendant Noonan."

This motion was renewed at the conclusion of all the evidence with a further elaboration of the same legal principles. Both motions were denied.

At the end of the charge the trial court submitted to the jury two special interrogatories as follows:

"At the time of the accident involved in this case, did Mr. Slockbower have Mr. Noonan\'s permission, tacit or otherwise, to use Mr. Noonan\'s car?"

"Do you find that there was an employment agreement between Cornelius J. Noonan and Charles Slockbower under which, as part of his compensation, Charles Slockbower was to have the right to use Cornelius J. Noonan\'s car at any time Cornelius J. Noonan didn\'t desire to use it?"

The jury's answer to both questions was "Yes." Noonan's counsel took appropriate exceptions to the interrogatories and to the portion of the charge that "there is a presumption from the fact of ownership of an automobile, that the driver was the owner's agent and acting within the scope of his employment" (38a).

After the jury had returned a verdict against both defendants, defendant Noonan moved to set aside the verdict as to him and for judgment on grounds substantially similar to his previous motion. This motion was also denied.

In resolving the question of law here involved it is assumed that the jury correctly decided that Slockbower had Noonan's permission to use the car at the time of the accident and that the right to use it was a part of Slockbower's compensation. However, this privilege as between Slockbower and Noonan is not sufficient as a matter of law to impose liability on Noonan unless the use at the time of the accident was within the scope of Slockbower's employment or for Noonan's benefit or interest.

The courts of Vermont on many occasions have had an opportunity to state the legal principles applicable here (Palmer v. Village of St. Albans, 60 Vt. 427, 13 A. 569; Ploof v. Putnam, 83 Vt. 252, 75 A. 277, 26 L.R.A.,N.S., 251; Greenough v. United States Life Ins. Co. of City of New York, 96 Vt. 47, 117 A. 332; Gutzwiller v. American Tobacco Co., 97 Vt. 281, 122 A. 586; Anderson v. Toombs, 119 Vt. 40, 117 A.2d 250). Thus in Anderson v. Toombs, supra, decided in 1955, the Vermont Supreme Court, after citing Ploof v. Putnam, supra, and Greenough v. United States Life Ins. Co. of City of New York, supra, as establishing the rule, quoted with approval the following statement of law in Gutzwiller v. American Tobacco Co., supra (119 Vt. 44, 117 A.2d 253):

"In order to hold the master liable for the acts of his servant it must appear that the act complained of was done to carry out the directions of the master, express or implied, and not to effect some purpose of the servant alone; or, in other words, that the act was done in furtherance of the master\'s business and within the scope of the servant\'s employment."

Mere permission to use whether established by express or implied consent or by agreement of employment does not create liability on the part of the owner unless the use is in some way related to the scope of the employment or for the benefit or in the interest of the owner (Jones v. Knapp, 104 Vt. 5, 156 A. 399).

Appellee not only would extend the "family purpose" principle of liability into a State which has rejected it but even beyond the family to an employer-employee relationship. Referring to this doctrine the Vermont Supreme Court quoted and relied upon the statement in Doran v. Thomsen, 76 N.J.L. 754, 71 A. 296, 299, L.R.A.,N.S., 335, that the doctrine "ignores an essential element in the creation of that status as to third persons, that such use must be in furtherance of and not apart from the master's service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs. * * *" Using the language of Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443, 445, L.R.A.1917F 363, it concluded that "If, contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter's own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new and anomalous slant applied by the courts to the principles of agency."

The legislature of Vermont thus has had the problem presented by its highest court but has taken no action to change the long-established rule that the use must be within the scope of employment. If the State of Vermont as a matter of policy desires to adopt a different rule it can easily do so by legislative enactment. It is not the function of this court to assume this prerogative by judicial decision.

Appellee places great stress on the fact that Slockbower's employment contemplated his use of Noonan's car. Assuming this to be true it is not determinative on the issue of liability. Appellee impliedly recognizes this because she tries to bring the midnight trip within the scope of Slockbower's employment by most illogical and extreme arguments, such as (1) that Noonan derived a benefit by having Slockbower use his car to go to meals, and (2) that she was a guest of Noonan on the ill-fated trip.

As to meals, they were being furnished to Slockbower at the hotel. He did not have to drive after midnight to a town some ten miles distant with a young lady to obtain food. The cases of chauffeurs using their employers' cars at mealtime are not in point. To argue that Slockbower had to go such a distance for food with the plaintiff for bodily sustenance so as to be ready at that post-midnight hour to drive for Noonan is to reduce the argument to an absurdity. Of like character is the claim that "Plaintiff was a guest of Noonan's on this trip" (Applt.'s Br., p. 16). Noonan was not even afforded the opportunity to be an absent or uninvited host. There was no proof that Noonan ever suggested to plaintiff or to Slockbower that they might like to use his car to go for a ride after the party. The only specific testimony concerning the night of September 3, 1956 was that Noonan had told Slockbower not to take his car that night because he had an inkling that there was going to be a party and it was a foggy night. However, whether this instruction would override general permissive use is immaterial because the testimony must be viewed in the light most favorable to appellee.

No proof having been adduced that Slockbower was acting in any way for Noonan in taking his car, appellee is forced to assert that the right to use the car imposes an absolute liability upon the owner. This is not the law of Vermont. It is not the law generally. The accepted rule is stated in 5 Am.Jur. 712-713 as follows:...