Ashley v. Safeway Stores, Inc.

• Decision Date: 28 June 1935
• Docket Number: 7337.
• Parties: ASHLEY v. SAFEWAY STORES, Inc., et al.
• Court: Montana Supreme Court

47 P.2d 53

100 Mont. 312

ASHLEY v. SAFEWAY STORES, Inc., et al.

No. 7337.

Supreme Court of Montana

June 28, 1935

Rehearing Denied July 10, 1935.

Appeal from District Court, Silver Bow County; R. E. McHugh, Judge.

Action by Marie Ashley against the Safeway Stores, Inc., and Eugene Ballard. From a judgment for defendant Safeway Stores, Inc. plaintiff appeals and, from a judgment for the plaintiff against the defendant Eugene Ballard, defendant Ballard appeals.

Judgment for the defendant Safeway Stores, Inc., affirmed, and, in the matter of the judgment against the defendant Eugene Ballard cause remanded, with directions.

H. J Freebourn, of Butte, for Ashley.

R. F. Gaines, of Butte, for Ballard.

Kremer & Kremer and H. D. Carmichael, all of Butte, for Safeway Stores.

STEWART Justice.

The plaintiff, Marie Ashley, brought this action against defendants, Safeway Stores, Inc., and Eugene Ballard to recover damages for injuries received in an automobile collision. On the evening of August 18, 1932, plaintiff was riding as a guest in the rumble seat of a Ford coupé driven by one William Kitt. Besides plaintiff and the driver, there were three other persons in the car. Carlotta Kennedy and Edward Sheehan were also riding in the rumble seat, and Mrs. Perkins rode in the front seat beside the driver. The car was traveling east from Butte on the Butte-Helena highway in the direction of Helena. Plaintiff claims that they were moving at a moderate rate of speed and that the driver had the car lights on because it was then dark. Around 10 o'clock p. m. they arrived at a point some 10 or 12 miles northeast of Butte. The road at that point is commonly known as the Elk Park highway. While driving along the highway and upon the right side of the road, they ran into the rear end of a Ford truck standing upon the right side thereof facing in the direction of Helena. As a result of this collision, the Kitt car was thrown over upon its side to the west side of the road, inflicting injuries in varying degrees upon plaintiff and the other occupants.

The truck with which they collided was of 1 1/2-ton capacity, and was loaded with more than 5,000 pounds of freight. It appears that during the day Eugene Ballard, driver of the truck, had left Helena and gone to Butte for the purpose of obtaining a load of groceries for the Safeway store in Helena. After procuring the groceries at a wholesale house in Butte, Ballard started on his return trip to Helena. When he reached a point on the Elk Park highway some 10 or 12 miles from Butte, he had a flat tire. He had no spare tire, or anything with which to fix a flat tire. He therefore drove the truck over upon the right side of the highway, where he left it while he telephoned to Helena (a distance of some 60 miles) for another tire. It was while the truck was thus standing and awaiting the arrival of a new tire from Helena that the Kitt car ran into it. The evidence discloses that the truck was partly upon the gravel shoulder and partly upon the paved or oiled portion of the road, so that a car approaching from its rear and upon that side of the road would have to turn out toward the center of the road in order to pass safely around it. There were no lights burning on the truck either front or back.

At about the same time that the Kitt car approached the truck from the rear a car driven by one Owen approached from the opposite direction. The Owen car, proceeding upon its own side of the highway, passed the truck, and almost immediately thereafter passed the Kitt car, which was proceeding on the proper side of the road in the opposite direction. Kitt and his companions, including plaintiff, said that they never saw the truck until after they had passed the Owen car and were almost upon it; that Kitt thereupon applied his brakes and attempted to swing around the truck, but could not avoid striking the rear end of it. Kitt explained his inability to see the truck by the fact that he was blinded by the lights of the Owen car, coupled with the fact that there were no signal lights showing upon the rear of the truck.

Seeking damages for the injuries sustained in the accident, plaintiff instituted this action against Ballard, as driver of the truck, and the Safeway Stores Company, as owner thereof and as Ballard's employer. The complaint alleges that the Safeway Company was owner of the truck, and that at all times mentioned and at the time plaintiff was injured Ballard was a servant and employee of the Safeway Company acting within the scope and course of his duties, as a driver of the truck. The complaint contains the ordinary allegations of negligence (that the truck was allowed to stand without lights upon the highway, etc.), and also allegations to the effect that plaintiff and Kitt were not guilty of negligence.

The defendants Safeway Stores Company and Ballard interposed separate answers. Both denied negligence, and set up pleas of contributory negligence. The Safeway Company denied that it was the owner of the truck or that Ballard was at any time a servant or employee of the Safeway Company.

Issue being joined, the case was tried before the court with a jury. At the close of plaintiff's case, both defendants moved for a nonsuit. Both motions were denied, and defendants proceeded to introduce evidence. At the close of all the evidence, each defendant moved separately for a directed verdict. The motion of the defendant Ballard was denied, and as against him the case was permitted to go to the jury. The motion of the Safeway Stores was sustained, and judgment was entered in its favor. The jury returned a verdict in favor of plaintiff and against defendant Ballard for the sum of $20,000, and judgment was entered thereon. After motion for new trial, an appeal was prosecuted to this court. The case presents two appeals. The defendant Ballard has appealed from the judgment against him, and the plaintiff has appealed from the judgment entered on the directed verdict in favor of the defendant Safeway Company.

We will first consider the last-mentioned appeal. The question presented therein is whether the court erred in granting the motion of defendant Safeway Company for a directed verdict. Plaintiff sought to hold this defendant liable upon the principle of respondeat superior. She alleged in her complaint that the Safeway Company was owner of the truck and that Ballard was a servant and employee thereof. Thus it was incumbent upon plaintiff to prove those allegations in order to establish any liability on the part of the Safeway Company. "The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged as a result of the wrong." Clawson v. Schroeder, 63 Mont. 488, 208 P. 924, 927.

One of the grounds urged by the Safeway Company in support of its motion for a directed verdict was that "plaintiff herein has failed to establish by a preponderance of the evidence the allegations of her complaint to the effect that at the time and place of her alleged injuries Ballard was acting as a servant and employee of the defendant Safeway Stores, Inc.," and "that the uncontradicted evidence is to the effect that the defendant Ballard, at the time and place of the occurrence of said accident and the cause of plaintiff's injuries, was not a servant of the defendant Safeway Stores, Inc., and all of the evidence submitted at the trial permits of no inference to the contrary."

While the motion also urged other grounds, particularly with reference to the showing of contributory negligence, it is manifest from the record that it was on the grounds just quoted that the court based its action in sustaining the motion of Safeway Company for a directed verdict.

It must be observed that there was a total failure to prove the allegation that Safeway Company was owner of the truck. The proof is uncontroverted that at the time of the accident the truck was owned by one E. L. Cloninger, not a party to the action, and who was at that time manager of the Safeway store in Helena, and that the Safeway Company never did own the truck. Two or three witnesses testified on behalf of plaintiff that they saw the truck immediately after the accident, and that at that time it bore the name "Safeway Stores" printed upon its side. This was the only competent evidence produced by plaintiff which tended in any manner to show ownership of the truck in the Safeway Company. On the other hand, the Safeway Company produced documentary evidence in the form of a conditional sales contract, and applications for license and certificate of title showing that Cloninger owned the truck on the date of the accident. In addition to that, Cloninger, Ballard, and Semrau (district manager of the Safeway Company) all testified positively that the truck was owned by Cloninger personally, and that the Safeway Company had no interest in it. All of this and other evidence to the same effect stands uncontradicted. Thus it was proved beyond question or doubt that the Safeway Company did not own the truck.

It remains only to be determined then whether, irrespective of the ownership of the truck, Ballard was an employee and servant of the Safeway Company at the time of the accident. The only proof submitted by plaintiff in support of her allegation to that effect was that the truck bore the name of Safeway Stores; that at the time of the accident it was carrying freight to the Safeway store in Helena. This was the most that any evidence produced by plaintiff tended to show. If there was any other evidence that would aid plaintiff's cause, it must be found in the evidence adduced by defendants, in the testimony of defendant's witnesses upon their direct or...