Amend v. Bell

• Decision Date: 13 October 1977
• Docket Number: No. 44616,44616
• Citation: 89 Wn.2d 124,570 P.2d 138
• Court: Washington Supreme Court
• Parties: , 95 A.L.R.3d 225 George B. AMEND and Rebecca A. Amend, husband and wife, Respondents, v. Robert L. BELL and Jane Doe Bell, husband and wife, and Fredrickson Maxey, Bell & Allison, a professional service corporation, Petitioners.

Page 124

89 Wn.2d 124

570 P.2d 138, 95 A.L.R.3d 225

George B. AMEND and Rebecca A. Amend, husband and wife, Respondents, v. Robert L. BELL and Jane Doe Bell, husband and wife, and Fredrickson Maxey, Bell & Allison, a professional service corporation, Petitioners.

No. 44616.

Supreme Court of Washington, En Banc.

Oct. 13, 1977.

Smith, Donohue & Compau, Lawrence C. Smith, Mallott & Southwell, Robert A. Southwell, Spokane, for petitioners.

Richter, Wimberley & Ericson, William P. Wimberley, Spokane, for respondents.

Sullivan, Morrow & Longfelder, Daniel F. Sullivan, Seattle, for amicus curiae.

BRACHTENBACH, Associate Justice.

This is a personal injury suit arising from an intersection collision. To get at the issues, we need to consider the pleadings. The individual defendant, who was the disfavored driver in an uncontrolled intersection, admitted in his answer that he failed to yield the right of way and that such was a proximate cause of the collision. He alleged that plaintiff was guilty of negligence, and/or contributory negligence, and/or comparative negligence which was a proximate cause of the collision. Defendant alleged that plaintiff driver's Volkswagen was equipped with a shoulder harness seat belt, but that she was not wearing it at the time of the collision which caused in whole, and/or contributed to, and/or enhanced, and/or aggravated her injuries. Plaintiff alleged that the individual defendant, a lawyer, was acting within the scope of his employment by the defendant professional services corporation which employed defendant lawyer and in which he was a stockholder and officer. Defendant alleged that he was not acting within the scope of his employment.

Those pleadings precipitated a flurry of motions. Plaintiff sought a motion in limine to exclude the seat belt defense. Defendants moved for summary judgment to have the professional services corporation dismissed on the ground that the driver was not within the scope of his employment. Defendants filed motions in limine to exclude any evidence that defendant driver had consumed any alcohol before the collision or that he may have been exceeding the speed limit at or immediately before the collision.

The trial court ruled: (1) the professional services corporation should be dismissed; (2) evidence of drinking and speed was admissible; (3) no voir dire or evidence on the seat belt defense would be allowed. The Court of Appeals granted discretionary review limited to the seat belt defense and dismissal of the corporation. The Court of Appeals then certified the case to this court. Recognizing the unanswered issues on the seat belt defense and the ramifications of comparative negligence, we expanded discretionary review to all issues ruled upon by the trial court. We affirm the trial court on all issues.

Dismissal of the professional services corporation was proper. Consideration of the depositions and an affidavit does not reveal any genuine issue of material fact. Except for the issue of the defendant driver's credibility, with which we will deal later, plaintiff did not produce any evidence to show that defendant driver was within the scope of his employment by the corporation. It is elementary that the employer is liable for the tort of an employee only when the employee is acting within the scope of his employment at the time of the tortious conduct. We recognize that scope of employment is essentially a factual question. To accommodate the widely varying fact patterns which may exist, we have created a presumption of fact when an employee is driving an employer's car. In Bradley v. Savidge, Inc., 13 Wash.2d 28, 123 P.2d 780 (1942), we held that when an employee is driving the employer's automobile, a presumption of agency arises; that is, that the driver was the owner's agent and that he was acting within the scope of his employment at the time of collision. Bradley held that that presumption can be overcome by competent evidence from either interested or disinterested witnesses, provided that their testimony is uncontradicted, unimpeached, clear and convincing. When evidence of that character is adduced, the court held that the presumption disappears and casts upon the plaintiff the burden of producing evidence to meet that of the defendant and to establish as a fact that the driver was the agent and was acting within the scope of his authority.

Looking at the facts established by the depositions and affidavit, at the time of the collision defendant lawyer was driving an auto leased by the professional services corporation which furnished cars for all the officers of the corporation. This is sufficient to raise the presumption of agency.

In rebuttal of the presumption and in support of its motion for summary judgment, defendant corporation established by depositions and affidavit the following facts. First, the vehicle driven by defendant lawyer was available to him for both personal and business purposes.

Further, defendant testified that on the day of the accident, a Friday, he left his office at the usual time. He had no intent of returning to the office until Monday. He did not take any work home with him. He seldom did any legal work at home. He did not maintain any office equipment or library at home. He did not intend to visit any clients, investigate any matters or otherwise tend to office business over the weekend.

On the way to his parking place, defendant lawyer met another lawyer who asked for a ride home. Defendant did transport the other lawyer to his home which was in the general direction of defendant's route home. The only testimony is that such was a gesture of accommodation only, that there was no business pending or anticipated between defendant's firm and the other lawyer.

This evidence is clear, convincing and uncontradicted. There were no inconsistencies in testimony of defendants despite extensive cross-examination. And, that an attorney going home from work had no intent to further his employer's business is logical. Excluding the issue of impeachment, we conclude that the evidence overcame the presumption of agency.

Excluding the issue of impeachment, we conclude that the uncontradicted evidence established that there was no genuine issue of material fact. A presumption is not evidence; its efficacy is lost when the opposite party adduces prima facie evidence to the contrary. Bates v. Bowles White & Co., 56 Wash.2d 374, 353 P.2d 663 (1960). The depositions and affidavit were uncontradicted. Plaintiff presented no facts in rebuttal, but instead relied on the presumption to carry his burden of establishing the existence of a material fact. But the presumption had become a nullity. In effect, plaintiff presented no factual dispute to the court. Therefore, the summary disposition of the issue was appropriate.

However, plaintiff argues that the testimony of defendant Bell was impeached. Plaintiff's argument has twofold significance. One, to overcome the presumption that an employee was acting within the scope of his employment, the defendant's evidence must be unimpeached. This is but another way of saying that there must be no genuine issue of credibility. Second, the court should not resolve a genuine issue of credibility at a summary judgment hearing. If such issue is present, the motion should be denied. An issue of credibility is present if there is contradictory evidence or the movant's evidence is impeached. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963).

The fault with plaintiff's argument lies with the matters asserted to constitute impeachment. Plaintiff attempts to attack the credibility of defendant Bell's testimony about scope of employment by arguing that there are weaknesses in his testimony concerning speed and intoxication.

Defendants concede that credibility issues may preclude a summary judgment in appropriate circumstances but argue, correctly, that such issues must be based on more than argument and inference on collateral matters. To hold that disputed facts about other issues preclude a summary judgment without facts related to the issue in point would abrogate the summary judgment procedure. We agree with the court in Rinieri v. Scanlon, 254 F.Supp. 469, 474 (D.C.S.D.N.Y.1966):

(T)he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and that the opposing party may not merely recite the incantation, "Credibility," and have a trial on the hope that a jury may disbelieve factually uncontested proof.

This rule is equally applicable to the presumption issue.

Plaintiff did not raise a genuine issue of material fact on this point and dismissal of the corporation defendant is affirmed.

Next we consider defendant's motion in limine as to evidence of alleged speed and intoxication of defendant driver. In Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 91, 549 P.2d 483, 488 (1976), we delineated the rules governing a motion in limine:

(T)he trial court should grant such a motion if it describes the evidence which is sought to be excluded with sufficient specificity to enable the trial court to determine that it is clearly inadmissible under the issues as drawn or which may develop during the trial, and if the evidence is so prejudicial in its nature that the moving party should be spared the necessity of calling attention to it by objecting when it is offered during the trial.

See also Comment, Motions in Limine in Washington, 9 Gonzaga L.Rev. 780 (1974).

The critical matter then is whether all of the evidence of the defendant's conduct is admissible on the issue of comparative negligence when a defendant admits that one of his acts was a proximate cause of the injury, but claims plaintiff's negligence was also a proximate cause. Specifically in this case, can plaintiff introduce evidence of alleged intoxication and speed when defen...