Blythe v. Tarko
| Decision Date | 13 October 1960 |
| Docket Number | Civ. A. No. 631-F. |
| Citation | 188 F. Supp. 83 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Richard BLYTHE and Jean Blythe, Plaintiffs, v. John TARKO, Fred Glover, and United States of America, Defendants. |
Mary Frances Brown and W. Mote Thompson, Jr., Stathers & Cantrall, Clarksburg, W. Va., for plaintiffs.
Oscar J. Andre and Willis O. Shay, Steptoe & Johnson, Clarksburg, W. Va., for defendant John Tarko.
Russell L. Furbee, Furbee & Hardesty, Fairmont, W. Va., for defendant Fred Glover.
Albert M. Morgan, U. S. Atty., and Robert J. Schleuss, Asst. U. S. Atty., Fairmont, W. Va., for defendant U. S.
Plaintiffs bring this action for personal injuries sustained by them while driving from Fairmont, West Virginia, to Morgantown, West Virginia, on March 29, 1959. The driver of the car which hit them was defendant Tarko. Plaintiffs have also sued defendants Glover and the United States under the theory that Tarko was an employee of both Glover and the United States acting within the scope of his employment in carrying United States mail at the time of the accident. Plaintiffs claim that the United States had a contract with Glover to carry mail; that Tarko worked for Glover, and that at the time of the accident he was the agent of both Glover and the United States, acting within the scope of his employment in carrying mail. The United States claims that Glover was an independent contractor. Both defendants deny the agency relationship. They claim that at the time of the accident Tarko was not an employee of theirs, and if he was such an employee, he was on a lark of his own, and not acting within the scope of any such employment in carrying mail at the time of the accident. At a pretrial conference, it appeared that the facts relating to the issue of whether Tarko was acting within the scope of his employment could be stipulated and agreed. Such a stipulation was filed, and it was agreed that, in advance of trial, the Court would determine whether such stipulated facts on the single issue of scope of employment constituted an issue of fact for jury determination or whether under the stipulation the question of scope of employment was a question of law for the Court. The question was raised by defendants Glover and United States upon motions to dismiss. If Tarko was on an enterprise of his own at the time and place of the accident, then whether he was an independent contractor or employee of Glover or an employee of the United States becomes academic. If there was no issue of fact for jury determination and if the Court would hold that the stipulated facts justified no other reasonable inference than that Tarko was not acting in the scope of his employment in carrying mail, but was on a frolic of his own at the time of the accident, then the Court should dismiss the defendants Glover and United States, and the case would proceed to trial as to the defendant Tarko. If the stipulated facts did raise a jury question, the other defendants would remain in the case and all issues, including employment, scope of authority and that of independent contractor would be tried.
The facts are uncontroverted and only one inference can be drawn from such facts. They show that Tarko was not acting within the scope of his alleged employment in carrying mail at the time of the accident, and that the motions of the defendants Glover and the United States to be dismissed must be sustained. Assuming that Tarko was the agent of both Glover and the United States to carry mail (which agency is denied), his only duty on the day of the accident was to be at Morgantown at 9:45 P.M., to pick up mail and take it to Connellsville, Pennsylvania. He left home at 1:30 P.M., and drove 30 miles to Morgantown. Instead of stopping there, he came on to a Fairmont club (19 miles from Morgantown) in order to spend the afternoon and evening drinking and in other pleasure of his own. In making this unnecessary trip to and from Fairmont, he was on...
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...Vick, 246 F.2d 144, 147 (4th Cir. 1957); Mid-Continent Pipe Line Co. v. Whitley, 116 F.2d 871, 875 (10th Cir. 1940); Blythe v. Tarko, 188 F.Supp. 83, 85, 86 (N.D.W.Va.1960); Kuerner v. NCR Co., 43 F.Supp. 62, 63 (W.D.Ky. 1942); Amerven, Inc. v. Abbadie, supra; Shaffram v. Holness, supra. Th......
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Honeycutt v. U.S.
...of whether an alleged tortfeasor was acting within the scope of his employment is a question of law for the court. See Blythe v. Tarko, 188 F.Supp. 83, 86 (D.C.W.Va.1960) (citing Moore v. Burriss, 132 W.Va. 757, 54 S.E.2d 23 (1949), and Bank of White Sulphur Springs v. Lynch, 93 W.Va. 382, ......
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Blais v. United States
...introduced that tended to show that the employee had delivered mail on the date of the accident. Id. Finally, in Blythe v. Tarko, 188 F. Supp. 83, 85-86 (N.D. W. Va. 1960), the court found that a mail carrier was not acting within the scope of his employment at the time of the accident, whi......