Bivens v. Manhattan Car Corp.

• Decision Date: 18 June 1931
• Court: Virginia Supreme Court
• Parties: CONNIE M. BIVENS v. MANHATTAN FOR HIRE CAR CORPORATION AND DAISY C. INGE v. MANHATTAN FOR HIRE CAR CORPORATION.

Page 483

156 Va. 483

CONNIE M. BIVENS v. MANHATTAN FOR HIRE CAR CORPORATION AND DAISY C. INGE v. MANHATTAN FOR HIRE CAR CORPORATION.

Supreme Court of Virginia, Wythebille.

June 18, 1931.

Present, Prentis, C.J., and Holt, Epes, Gregory and Browning, JJ.

1. NEW TRIAL — Motion to Set Aside Verdict for Plaintiff in an Action for Damages — How Evidence Considered. — Upon a motion to set aside a verdict for plaintiff on the ground that the evidence does no support it, the court will accept as facts proved those statements in the evidence most favorable to the plaintiff's contention and will also accept as facts proved all reasonable and proper inferences favorable to the plaintiff that might have been drawn from the facts in evidence. It is proper also to accept as facts proved such evidence as is not in conflict with the plaintiff's evidence and which is not inherently incredible.

2. MASTER AND SERVANT — Respondeat Superior — Whether Driver of Taxi Responsible for Accident was Acting Within Scope of His Authority — Case at Bar. — The instant cases were actions for damages arising out of an automobile accident against a taxi-cab corporation. The defendant was a corporation doing a taxi service business. The driver of the car in question was not a regular driver nor an officer of the corporation. He was employed to grease and wash cars, but on the occasion in question he was assigned to the car which figured in the accident. In the absence of any officer of the corporation he answered a call for a taxi, which by custom was permitted by the corporation. He went to the place of the call and finding no one awaiting him went back to the office or taxi stand. Arriving there and seeing several cars on the stand, he did not stop but determined to go home and get some rest. Accordingly, he started for home. Before reaching his home he met some friends, changed his mind and picked up his friends and started to give them a ride. It was while doing so he met with the accident involved in this suit. It did not appear that the driver had authority to go out and seek business.

Held: That the verdict for plaintiff should be set aside; that there was nothing incredible in these facts as testified by the driver. When the driver answered the call and returned to the taxi stand this ended that assignment or trip. It is inconsequential that he did not park his car and get out. His trip had ended. It was at this time he decided to go home and get some rest. This was a radical departure, not a mere deviation from the master's business. It was a trip to a place for a purpose authorized neither expressly nor by implication, but was one which the uncontradicted evidence shows was prohibited.

3. MASTER AND SERVANT — Respondeat Superior — Business of Master — Scope of Servants' Authority. — In order to hold a master under the doctrine of respondeat superior it is necessary that there be facts in evidence from which the jury can fairly infer that at the time of the accident the servant was engaged in and about the defendant's business and within the scope of his authority.

4. MASTER AND SERVANT — Respondeat Superior — Departure or Deviation — Questions of Law and Fact. — Where the deviation is slight and unusual the court may as a matter of law determine that the servant was acting within the scope of his employment. Where the deviation is very marked and unusual the court may determine that the servant was not acting within the scope of his employment. Where the facts leave the case between these two extremes the question should be left to the jury.

5. MASTER AND SERVANT — Respondeat Superior — Departure or Deviation — Slight Deviations. — The Virginia cases recognize the fact that slight disobedience to orders and slight diversions of the servant in the course of his duty will not relieve the master of the responsibility for injuries occurring through the negligence of the servant.

Error to a judgment of the Law and Equity Court, Part Two, of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiffs assign error.

The opinion states the case.

Allen & Jefferson and Chas. W. Moss, for the plaintiffs in error.

L. O. Wendenburg and George L. Oliver, for the defendants in error.

BROWNING, J., delivered the opinion of the court.

The above cases were actions by notice of motion for judgment, in the Law and Equity Court of the city of Richmond, Part Two, filed in November, 1929, and tried in February, 1930. The two cases grew out of the same occurrence. The plaintiffs were riding in the same automobile at the time of the accident and both were painfully and seriously injured. By agreement the cases were heard together, but separate verdicts were rendered for the plaintiffs, assessing the damages at $10,000.00 each.

The learned judge of the trial court delivered an opinion in sustaining the motion of the defendant to set aside the verdict of the jury and enter judgment for the defendant.

The reasoning of the judge (Hon. Frank T. Sutton) is so cogent and convincing and the authorities cited to sustain it are so pertinent and controlling that we adopt the opinion in full as that of this court. It is as follows:

"In each action there was a verdict for the plaintiff and the court is now asked to set aside these verdicts and enter up judgment for the defendant on the ground that there was no evidence sufficient to base a finding that the driver of the taxi, causing the injury, was at the time of the accident acting as the agent of the defendant corporation and within the scope of his employment.

"Stating the facts as the jury might have found them, in accordance with well settled rules, the court will accept as facts proved those statements in the evidence most favorable to the plaintiff's contention and will also accept as facts proved all reasonable and proper inferences favorable to the plaintiff that might have been drawn from the facts in evidence. It will be proper also to accept as facts proved such evidence as is not in conflict with the plaintiff's evidence and which is not inherently incredible. (Barnes Hampton, 149 Va., at page 744, 141 S.E. 836; White Southern Rwy., 151 Va. 302, 144 S.E. 424.)

"Controlled by these rules, the facts of these cases appear as follows, as far as the question of the agency is concerned:

"The defendant was a corporation doing a taxi service business in the city of Richmond, Virginia. It owned a number of autos used in this service and had regular assigned drivers for each car. Eugene Houston (the driver of the car at the time of the accident) was regularly employed by the corporation to grease and wash cars and to clean and help about the office. He was not employed as a regular driver. He was not an officer of the corporation. At times when a regular driver was off duty, Houston was assigned to take that driver's car and make a special trip. On the date in question he was assigned to take car No. 9 (the one that figured in this accident) and answer two separate calls. Car No. 9 was assigned him that morning when he sat around the office waiting for calls. He had made two calls and returned to the office and about 3 o'clock P.M. a call came from Seventeenth and Broad streets. No officer of the defendant corporation was in the office at the time and Houston took the car and answered the call, as drivers sometimes did this when no officer was present, and it is a fair inference that such practice was permitted by the defendant corporation. As to what happened from that time until the accident only Houston testified. He testified without contradiction that he went to Seventeenth and Broad streets, but found no one waiting for him and deeming it a false call he went back toward the office or taxi stand. Arriving there and seeing several cars on the stand he did not stop but determined to go home and get some rest. Accordingly he drove back to the City Hall, paid a gas bill and started for his home at No. 23 Bowling Green road. Before reaching his home he met some friends, changed his mind and picked up his friends and started to give them a ride. It was while doing so he met with the accident involved in this suit.

"As above said, this testimony of Houston was uncontradicted, unless a contradiction could be said to arise from inferences properly drawn from other facts in evidence. There was nothing in this testimony to make it incredible.

"In addition to the foregoing summary it may be said that there was no evidence that Houston had authority to go out and seek business. As an extra driver he was paid a commission by the driver for whom he supplied and his authority seemed to have been limited to sitting around the office awaiting calls and attending to those particular calls. When Houston answered the call to Seventeenth and Broad streets and returned to the taxi stand this ended that assignment or trip. It is inconsequential that he did not park his car and get out. His trip had ended. It was at this time he decided to go home and get some rest. This was a radical departure, not a mere deviation from the master's business. It was a trip to a place for a purpose authorized neither expressly nor by implication, but was one which the uncontradicted evidence shows was prohibited.

"In order to hold the defendant under the doctrine of respondeat superior it was necessary that there be facts in evidence from which the jury could fairly infer at the time of the accident Houston was engaged in and about the defendant's business and within the scope of his authority.

"The cases bearing upon the situation presented by the above facts are:

"Kidd De Witt, Jr., 128 Va. 438, 105 S.E. 124; Drake Laundry Corporation, 135 Va. 354, 116 S.E. 668; Crowell Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425; Barnes Hampton, 149 Va. 740, 141 S.E. 836.

"In Kidd De Witt, the facts were as follows:

"William Scott was a regularly employed chauffeur of the...