Bradley v. S.L. Savidge, Inc.

• Citation: 123 P.2d 780,13 Wn.2d 28
• Decision Date: 26 March 1942
• Docket Number: 28534.
• Court: United States State Supreme Court of Washington
• Parties: BRADLEY v. S. L. SAVIDGE, INC.

123 P.2d 780

13 Wn.2d 28

BRADLEY v. S. L. SAVIDGE, INC.

No. 28534.

Supreme Court of Washington, En Banc.

March 26, 1942

Action by John Bradley against S. L. Savidge, Inc., to recover damages suffered as the result of a collision with an automobile owned by defendant. From a judgment for the plaintiff, the defendant appeals.

Reversed.

BLAKE MAIN, MILLARD, and DRIVER, JJ., dissenting.

Appeal from Superior Court, King County; Roger J Meakim, judge.

Eggerman & Rosling, of Seattle, for appellant.

LeCocq & Simonarson, of Lynden, and Shank, Belt, Rode & Cook, of Seattle, for respondent.

SIMPSON Justice.

Plaintiff instituted this action to recover damages suffered as the result of a collision with an automobile owned by defendant. The case was tried to a jury and a verdict rendered in favor of plaintiff.

At the close of plaintiff's case, defendant presented a motion for a nonsuit and at the close of all the evidence moved for a directed verdict. The motions were denied. After the verdict had been returned, defendant moved for judgment notwithstanding the verdict. The court denied the motion and entered judgment on the verdict of the jury. Defendant appeals.

Appellant urges error on the part of the trial court in denying appellant's challenge to the sufficiency of the evidence interposed at the close of the plaintiff's case, in denying appellant's motion for a directed verdict, and in denying its motion for judgment notwithstanding the verdict.

The pertinent facts are as follows: Appellant was engaged in the automobile business in the city of Seattle. During the month of November, 1939, Allen Lacy was employed by the appellant as a car salesman. On Friday preceding the Wednesday upon which the accident occurred, Lacy sold and delivered a 1939 Dodge used car to a man named Halfhill, who was employed at the Ruby dam some distance from Seattle. The sale was consummated during the evening, at which time the sales contract was signed and a payment of one hundred dollars made by check. The transaction was made in violation of the company rule that the order or contract should be approved by an executive officer of the company Before delivery of the car.

The credit investigation made during the following Monday or Tuesday disclosed that Halfhill's credit was not good and on Tuesday the check which had been deposited in the bank was returned to appellant's office marked 'N.S.F.' Upon that day Lacy was told by the manager of the used car department that he would have to secure the return of the car. Lacy then ascertained that Halfhill was working at the Ruby dam and, assuming that the car was near the dam, decided to make the trip on Wednesday morning. On that morning Lacy asked for expense money for the journey. This request was denied, and he was told by the general manager of appellant company that he, Lacy, should take with him on the trip to repossess the car, a Mr. Calvin, who was in charge of collections and handled all repossessions. At the time the instructions were given to Lacy, Calvin was not at the office, but returned about an hour after Lacy had departed. Lacy, in disobedience to the instructions given him, took with him on the trip a personal friend named Parker, who was not in the employ of or known to appellant company. Lacy did not advise any one of his intention to take Parker with him but contacted his friend some distance from appellant's place of business.

After repossessing the Halfhill car, Lacy permitted Parker to drive the one borrowed for the journey, while he drove the repossessed car. They agreed to meet at Lacy's residence in Seattle. On the way back, Parker negligently collided with respondent, causing the damages for which recovery is sought.

Appellant contends that Lacy had no authority to employ Parker to drive appellant's automobile and thus attempt to create the relation of master and servant between it and Parker. Respondent, on the other hand, maintains that Lacy did possess the authority to engage Parker, and that the presumption of agency arising from the fact of appellant's ownership was sufficient to make a case for the jury. He maintains further that the instruction to Lacy to have Calvin accompany him on the journey was discretionary; hence, inviting Parker to drive was proper.

A minute scrutiny of the record, however, definitely establishes the fact that Lacy was ordered to take Calvin on the journey to repossess the car, and that Parker's accompaniment and driving was a distinct violation of that command. From the evidence, then, it is apparent that Lacy had neither express nor implied authority to employ Parker to undertake the journey and drive appellant's car. Respondent argues, however, that under our decisions the fact that Parker was driving appellant's car raises the presumption that he was appellant's servant; that this presumption makes a prima facie case which can be overcome only by testimony of disinterested witnesses; and that the evidence adduced on this question being derived from appellant's employees was from interested witnesses.

It is obvious that if respondent's contention relative to the presumption of agency is sustained, the court was compelled to deny the motion for a directed verdict and the motion for judgment n. o. v., since appellant owned the car which caused the collision and since the evidence concerning the driver's authority was from interested witnesses.

In an action of this kind, plaintiff must allege and prove (1) that he sustained an injury, (2) that the driver of defendant's car was negligent, (3) that the driver's negligence was the proximate cause of his injury, (4) that the defendant owned the car, (5) that the driver was the agent or servant of the owner, and (6) that the agent or servant was acting within the scope of his authority at the time of the injury.

Respondent submitted evidence which proved that he sustained injuries, that the driver of appellant's car was negligent, and that such negligence was the proximate cause of his injuries. In its answer, appellant admitted that it owned the car driven by Parker.

The only question for our consideration, therefore, is whether Parker was the servant of and acting for appellant at the time the collision occurred. This question will be discussed in two parts: (1) the power of an agent to employ a servant or subagent, and (2) the particular character of evidence required to overcome the presumption of agency as a matter of law. As a basis for the discussion, it is necessary to detail some of the undisputed and unimpeached evidence regarding the instructions given Lacy. When called as a witness for respondent, he testified concerning the sale of the car, a conversation he had with Mr. Hansen, the credit manager of the company, and then gave the following testimony:

'Q. And what else did he tell you in regard to what you had to do about that car? A. That I would have to see that the car was returned to the company.

'Q. Did he tell you when you were to go and get it? A. No.

'Q. You did start after it on the following Wednesday morning? A. That is right.

'Q. When did you determine that you were going up on Wednesday morning after this car? A. Well, when I was advised that I should go and get the automobile I decided that I would leave the following day.'

On cross-examination, he testified to violating his principal's instructions by taking Parker instead of Calvin on the journey:

'Q. Did he give you any instructions as to who should go along? A. Well, he advised me that I was to take Mr. Calvin, his assistant. * * *

'Q. Where did Mr. Parker get into the car? A. Well, he was over across the street from the place when we left, around the corner.

'Q. Why was he over there? A. Well, I was violating my instructions by taking him, and I thought it would be better if he got in the car unnoticed, and no one would know anything about it.

'Q. In what respect were you violating instructions by taking Parker? A. I was told to take Mr. Calvin with me.

'Q. Tell us, Mr. Lacy, when you had received instructions to take Mr. Calvin along, why did you take Mr. Parker in the place of Calvin? A. Well, I had already asked Parker, and he had expressed the desire to go with me, and also we were pretty good friends, and I didn't know Calvin so very well, and I thought it would be more pleasant for myself to take Mr. Parker with me than to take Calvin, and I was to wait for Calvin. He was not there at the time. And I was also anxious to get started and get it over with.'

Mr. Hansen, the credit manager, testified:

'Q. What is the nature of your position with S. L. Savidge, Incorported? A. Credit Manager.

'Q. Do you have an assistant? A. Yes, Mr. Calvin.

'Q. And what is his first name? A. Steward Calvin.

'Q. Is he sitting here in the court room? A. Yes, he is.

'Q. And what are the duties of Mr. Calvin? A. Mr. Calvin handles collections and repossessions, and also takes care of the records on open accounts. In other words, he does the collections and repossesses automobiles.

'Q. Is there anybody else in your organization who performs similar services, or who makes repossessions? A. We have now. We didn't,----

'Q. I mean at that time? A. No, we did not have at that time. * * *

'Q. Was there anything said with reference to taking Calvin along? A. And at that time when I was discussing that with Mr. Stoddard, Before I left there Mr. Stoddard said no, that he would not okeh the petty cash voucher and have Calvin go along with Mr. Lacy. And then I came out and told Lacy that Mr. Stoddard would not okeh the petty cash voucher, and that he was to take Calvin along with him, but he was to raise the money to pay for the gasoline and to pay the meals of both Calvin and himself.'

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