Anderson v. Toombs

• Decision Date: 04 October 1955
• Docket Number: No. 1447,1447
• Parties: Carlton ANDERSON v. Fred R. TOOMBS.
• Court: Vermont Supreme Court

Page 250

117 A.2d 250

119 Vt. 40

Carlton ANDERSON v. Fred R. TOOMBS.

No. 1447.

Supreme Court of Vermont.

Oct. 4, 1955.

Everett C. Williams, Springfield, for plaintiff.

Ryan, Smith & Carbine, Rutland, Alban J. Parker, Springfield, for defendant.

Before JEFFORDS, C. J., CLEARY, CHASE and HULBURD, JJ., and HOLDEN, Superior Court Judge.

HULBURD, Justice.

This is an action of tort to recover for personal injuries resulting from an automobile accident occurring on the night of August 23, 1952. The plaintiff was a passenger in an automobile owned by the defendant and operated by one Harold E. Balch. Recovery is sought of the defendant on a Respondeat Superior basis.

At the close of the plaintiff's case and again at the conclusion of all the evidence, the defendant moved for a directed verdict. The motion was denied and the defendant was allowed exceptions. Although in the court below, the defendant based his motion for a directed verdict on a number of grounds, the only question relied on here is whether the evidence is such as to warrant submitting the case to the jury on the master and servant question. Viewing the evidence in the light most favorable to the plaintiff, the facts and situation were as follows.

On August 23, 1952, the defendant, Fred A. Toombs, operated a taxi business in Springfield, Vermont. Harold Balch, on that date, was employed by the defendant as a taxi driver and had been so employed for about three weeks. Balch's regular hours were 'roughly from nine in the morning until eight at night.' His ordinary work was in the daytime, but 'in a sense of the word' he was on call at all times. The defendant offered taxicab service at night if arrangements were made the night before, or in emergencies. Balch had occasionally done work aside from his regular hours. After Balch had finished a day's work, he took the car to his home and garaged it there for the night. The defendant had permitted this in order that the drivers might have the cars to come to work with in the morning. Balch had no permission to use the car for any purpose other than as a taxi, and the defendant from time to time checked Balch's yard and that of the other drivers to make sure they were not using the cars for their own purposes and pleasure.

The car which Balch drove for the defendant was a 1951 4-door Chevrolet Sedan. It was 'tan or gray' in color. Just back of the center of the windshield on the top of the car there had been a sign saying 'Taxi' with lights that would operate at either side of the sign. On the night in question, however, 'the sign actually said nothing, because the sign was gone,' and whether or not the lights with it were on, Balch could not recall.

Sometime before August 23, 1952, Balch had made arrangements with a group of former schoolmates for a social evening. They planned to get together on Saturday, August 23, for a dance and other activities. The group called themselves the 'Pointers and Setters' and they assembled about once a year for a meeting and dance, which this year were to be held in North Springfield and Saxton's River. Early on the evening of August 23, Balch was introduced to the plaintiff, Carleton Anderson. Anderson had come to Springfield from Ludlow with a Mary Thomas (since become Mary LaChappelle) arriving at the Balch apartment about supper time. It was arranged that they all would go out together to the proposed dance and meeting. This was before Balch had finished his day's work. Balch had to go with a passenger to Claremont, New Hampshire. This he did and from this trip returned home about 9:30 in the evening. This was his last trip for the day and so far as he was concerned he regarded the normal day's business as over. He drove directly home from the trip and there joined his wife, the plaintiff and Miss Thomas. Before setting out for the evening, there was discussion amongst the group as to whose car was to be used. Mr. Anderson offered to use his car, but Mrs. Balch spoke up and said, 'no, this is our treat, we will use our car.' Balch had a car of his own but it had not been in operating condition for some seven months. The four of them finally left in the defendant's car Saxton's River and the party as planned. Balch did not communicate with his employer in any way about taking the car and he had no knowledge of it. Balch testified that he took the car for his own convenience and that the trip in question was not for the benefit or pleasure of any one except the members of the party. Neither the plaintiff nor Miss Thomas paid anything for the trip. Mr. Balch further testified that he had authority to operate the car as a taxi at all times, but that he did not have authority to use it for any other purpose.

On the return trip from the dance, just after midnight, Balch lost control of the car and an accident occurred. Mrs. Balch was killed and the plaintiff and other occupants of the car were injured.

Balch worked for the defendant for a salary of $50.00 a week plus commissions. He bacame entitled to a commission only if the volume of business exceeded a given figure. This it had never done in his three weeks of employment; so he had received no commissions. Each Friday Balch turned into his employer what money he had taken in in operations during the preceding week. He had done this on Friday just before the accident. After the accident, he next turned over his receipts on the following Tuesday. His testimony was to the effect that included in the sum of money turned over to his employer on Tuesday was the sum of $5 for the use of the car the night of the accident and he said his employer 'profited' to this extent from the trip. There was no evidence on the part of the plaintiff tending to show that the defendant knew he was getting $5 in this regard. There was no itemized settlement and the defendant had no way of knowing what the money turned in was for. The payment was described by Balch as being 'pay for the use of the car' and for the 'use of the automobile.' He at no time said that the money represented taxi fare.

Balch testified that the established taxi fare to Saxton's River where the dance was held was $7.50 and that a normal charge of $3.00 an hour was made for waiting and that if the car left Springfield, as it did, at 9:30 in the evening and arrived back at 12:30 it would be fair to say that the passenger fare would have been $7.50 plus $9.00 or a total of $16.50. There was not included in this figure the additional travel for a side trip to North Springfield which was made en route.

The plaintiff, who received head injuries as well as being otherwise injured, had no memory of the trip and was unable in his testimony to add anything to his case as stated in the summary just given.

Did the trial court err in refusing to direct a verdict in the defendant's favor? This is the sole problem which has been presented for this Court's consideration and this question in turn is confined to the law governing the liability of a master for the acts of his servant.

The general rule is set forth in 5 Am.Jur. Par. 375 as follows:

'It is a well-established general rule that the owner of an automobile is not liable for injury or damage resulting from the negligent operation of his car by his employee while the latter is using it for his own pleasure or business. This rule applies not only to cases in which the agent or servant uses his employer's car for his own purposes without the owner's permission or consent, but according to the great weight of authority, to cases in which the employer has consented to or acquiesced in the employee's use of the car for his own pleasure or business. * * * Generally, in order to hold the principal or master liable for the act of his agent or servant, the relation of master and servant or principal and agent must exist at the time, and the act must be within the scope of the servant's authority.'

Our rule in this regard, established in Ploof v. Putnam, 83 Vt. 252, 75 A. 277 26 L.R.A.,N.S., 251, and followed in Greenough v. United States...