Baldwin v. Singer Sewing Machine Co.

• Decision Date: 10 April 1930
• Docket Number: 5321
• Citation: 287 P. 944,49 Idaho 231
• Parties: VIVIAN F. BALDWIN, Respondent, v. SINGER SEWING MACHINE COMPANY, a Corporation, and ED ANDERSON, Appellants
• Court: Idaho Supreme Court

287 P. 944

49 Idaho 231

VIVIAN F. BALDWIN, Respondent, v. SINGER SEWING MACHINE COMPANY, a Corporation, and ED ANDERSON, Appellants

No. 5321

Supreme Court of Idaho

April 10, 1930

AUTOMOBILES - NEGLIGENT OPERATION - ACT OF AGENT - SCOPE OF EMPLOYMENT-EVIDENCE-LIABILITY OF MASTER - TRIAL - ABANDONED PLEADING.

1. Instruction merely setting out negligent acts complained of in pleadings, but later abandoned, without suggestion that there was proof to sustain them, held not error.

2. Statement of counsel in opening statement regarding pedestrian's knowledge of injuries sustained when struck by automobile held not prejudicial to defendants.

3. In action against alleged principal for negligence of alleged agent, counsel's commenting on failure of alleged principal to produce employment contract held not improper.

4. Evidence held to establish that negligent automobilist injuring pedestrian was employer's agent, not independent contractor.

5. A servant may step aside from his employment and thereafter, by returning to it, subject his master to liability for ensuing negligence.

6. Evidence held to establish that, when agent ran down pedestrian with automobile, he was acting for himself, not for principal.

7. Verdict of jury will not be disturbed on appeal where evidence is conflicting.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action in tort for damages. Judgment for plaintiff. Affirmed in part, reversed in part.

Judgment reversed as to appellant Singer Sewing Machine Company, and affirmed as to appellant Anderson. Costs awarded to appellant Singer Sewing Machine Company. Costs as against appellant Anderson to respondents. Petition for rehearing denied.

Martin & Martin and H. B. Walker for Appellants.

The general rule is that, in order to hold an employer liable for injuries inflicted by an automobile while being driven by a salesman or collector, the relationship of master and servant must not only exist, but the servant must at the same time have been acting within the scope of his employment and engaged in performing an act in carrying out the master's business. (Scrivner v. Boise Payette Lbr. Co., 46 Idaho 334, 268 P. 19; White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, Ann. Cas. 1914C, 1082, 102 N.E. 302, 46 L. R A., N. S., 1091; Nussbaum v. Traung Label & Lithograph Co., 46 Cal.App. 561, 189 P. 728; Mauchle v Panama-Pacific International Exposition Co., 37 Cal.App 715, 174 P. 400; Premier Motor Mfg. Co. v. Tilford, 61 Ind.App. 164, 111 N.E. 645.)

Whether an agent is acting within the scope of his employment when the facts are in evidence is a matter of law to be decided by the court and not to be submitted to the jury. (Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L. R. A., N. S., 598.)

James F. Ailshie, Jr., and J. R. Smead, for Respondent.

The overwhelming weight of authority supports (1) the proposition that the evidence in this case shows defendant Anderson to have been an employee of his co-defendant and not an independent contractor; and (2) the related proposition that in the view most favorable to appellant the question was for the jury as a question of fact and was not a question of law for decision by the court. In addition to authorities already cited to this effect we call attention to the following: Borah v. Zoellner Motor Car Co., (Mo. App.) 257 S.W. 145; Devuono v. Muller, 126 Misc. 669, 214 N.Y.S. 557; Lowmiller v. Monroe, Lyon & Miller, (Cal. App.) 281 P. 433; Dunn v. Reeves Coal Yards Co., 150 Minn. 282, 184 N.W. 1027; Marsh v. Beraldi, 260 Mass. 225, 157 N.E. 347; Wendt v. Holbrook etc. Trust Co. , (Mo. App.) 299 S.W. 66; Goff-Kirby Coal Co. v. Aquila, 128 Ohio App. 345, 162 N.E. 748; Ryan v. Farrell, 208 Cal. 200, 280 P. 945; United States Fidelity & G. Co. v. Lowry, (Tex. Civ. App.) 231 S.W. 818.

The scope of employment includes not only what the agent was employed to do, but also what, with the employer's knowledge and acquiescence, he actually did do. (Brayman v. Russell etc. Lumber Co., 31 Idaho 140, 169 P. 932.)

Evidence of previous acts, or a course of conduct, reasonably related in point of time to the act in question, is evidence proving the authority to perform such act. (39 C. J. 1358; Ferguson v. Reynolds, 52 Utah 583, 176 P. 267; Merrill v. Oregon Short Line R. R. Co., 29 Utah 264, 110 Am. St. 695, 81 P. 85; Swancutt v. W. M. Trout Auto Livery Co., 176 Ill.App. 606.)

The scope of employment involves those things usually or naturally incident to the direct means of accomplishing the master's purpose. This includes all acts and things which ought to have been expected as incidental to the employee's main duties (Mechem on Agency, secs. 1879, 1884; Sohns v. M. B. Hubbard Grocery Co., 163 Minn. 187, 203 N.W. 782; Coleman v. Clement's Chevrolet Co., 174 Minn. 277, 219 N.W. 92; 39 C. J. 1283; 6 Labatt on Master & Servant, secs. 2227, 2281-A, 2293-A; Burger v. Taxicab Motor Co., 66 Wash. 676, 120 P. 519), and depends to a considerable degree on the type and variety of duties to be performed and the extent of the territory in which the agent is to work. (Dillon v. Prudential Ins. Co., 75 Cal.App. 266, 242 P. 736.)

The return trip from a point to which the agent has gone to transact the master's business is within the scope of the employment. (Ryan v. Farrell, 208 Cal. 200, 280 P. 945; Brimberry v. Dudfield Lbr. Co., 183 Cal. 454, 191 P. 894; May v. Farrell, 94 Cal.App. 703, 271 P. 789; Jedlicka v. Shackelford, (Mo. App.) 270 S.W. 125, 128.) And when the agent uses his own or his employer's car in the course of his work, his driving the car to the place where it is regularly kept after his active services have ceased is within the scope of his employment. (Burgess v. Garvin, 219 Mo.App. 162, 272 S.W. 108; Auer v. Sinclair Ref. Co., 103 N.J.L. 372, 137 A. 555; Brimberry v. Dudfield Lbr. Co., supra; Hall v. Puente Oil Co., 47 Cal.App. 611, 191 P. 39.)

Combining a purpose of his own with the employer's business while driving the car does not relieve the master from liability for the servant's negligence. (Ryan v. Farrell, supra; 2 Cyc., Automobile Law, p. 1409; McKeage v. Morris & Co., (Tex. Civ. App.) 265 S.W. 1059; Standard Motor Sales Co. v. Miller, 30 Ohio App. 7, 164 N.E. 55; Brimberry v. Dudfield Lbr. Co., supra; 39 C. J. 1297, sec. 1494, and notes.)

LEE, J. Givens, C. J., and Varian and McNaughton, JJ., concur. Sutton, D. J., dissents.

OPINION

LEE, J.

Defendant and appellant, Ed Anderson, resided at 1205 N. 11th Street in Boise. He owned a Ford automobile. Pursuant to a written contract with defendant and appellant, Singer Sewing Machine Company, the terms of which were not disclosed, he was engaged in selling sewing-machines for said company on a commission basis. He was required to make the collections on the machines he sold, for which service he received a further commission. The machines were charged to him, and sold by him in a territory specified by the company, on terms fixed by the company, under contract, the form blanks for which were furnished him by the company. He carried the company's rule book for his instructions: the contracts retained title in the company. In making collections, he sometimes repossessed a machine, the contract, in the matter of such repossession, expressly referring to him as "agent."

On January 10, 1928, he had gone to Nampa on business, as he testified, for the company and himself. On the evening of the 12th, he returned to Boise, some time before 7 o'clock, and parked his car between the Sonna and Noble buildings, as near to defendant company's office as he "could get." He then went to the office and spent "a little time there," his reason being that he "simply stopped" because he "saw there was a light in there," and "supposed there was somebody in there," and he "would call in." There, he was a Mr. Knowlton, the reputed "main man at Denver," and after spending a few minutes with him, he went to Geb's Cafe and had his supper, reading while there the evening paper "thoroughly." He next proceeded to the postoffice. With regard to his next movement, he testified: " . . . . and I expect I turned off and went to the 'Capital News' office." Returning to his parked car, he "hunted up a dry rag to wipe" the windshield, got into the car and started to his residence. While so proceeding, the collision complained of occurred.

Plaintiffs and respondents, Vivian F. Baldwin and E. R. Baldwin, her husband, plead that while walking west on the sidewalk situate on the north side of Main Street and across Tenth Street, she was struck by a Ford automobile driven by appellant Anderson, and severely injured; that the injuries were the result of certain specified, negligent and unlawful acts of said appellant while he was functioning within the line and scope of his employment with defendant company, and driving such automobile upon the company's business.

Defendants and appellants answered separately, admitting the alleged residence of defendant Anderson, the corporate existence of defendant Singer Sewing Machine Company, and that plaintiffs were husband and wife; all other allegations, they denied. Motions for nonsuit interposed when plaintiff rested and renewed at the close of the evidence having been denied, a verdict was rendered in favor of plaintiffs and against defendants for $ 19,500. Judgment was entered, motions for new trial denied; and both defendants appealed, assigning error and insufficiency of the evidence.

Over appellants' objection, there was admitted a certain traffic ordinance of the city of Boise, prohibiting turns to the left; and, in Instruction No. 1, the court in enumerating the issues formed by the pleadings recited one charging...