Brinkley v. Farmers Elevator Mutual Insurance Co.

• Decision Date: 16 October 1973
• Docket Number: No. 73-1257.,73-1257.
• Citation: 485 F.2d 1283
• Parties: William L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee. Helen L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.2d 1283 (1973)

William L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee.

Helen L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee.

No. 73-1257.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 11, 1973.

Decided October 16, 1973.

Frank C. McMaster, Wichita, Kan. (Stanford J. Smith and D. Lee McMaster, Wichita, Kan., on the brief), for plaintiffs-appellants.

Richard T. Foster, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan. (William A. Hensley, Wichita, Kan., Turner, Chartered, Great Bend, Kan., on the brief), for defendant-appellee.

Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The issue here to be resolved is whether under the doctrine of respondeat superior a client is liable for the tortious conduct of his attorney which causes injury to a third party. The trial court held that there was no such liability, and this appeal follows.

William and Helen Brinkley, the plaintiffs in the present proceeding, sustained severe injuries when the vehicle in which they were riding collided with a vehicle owned and operated by Clarence N. Holeman. For the purposes of this proceeding, at least, it is conceded that the collision was solely the result of Holeman's negligence, he apparently being in an intoxicated condition at the time. The accident occurred at approximately 7:45 P.M. in Pratt County, Kansas, on U.S. Highway 54.

Holeman was a practicing attorney with law offices in Wichita, Kansas. Holeman had been employed by Farmers Elevator Mutual Insurance Company, hereinafter referred to as Farmers, to represent one of its insureds in an action which had been brought against the insured in the County Court in Dodge City, Kansas. On the day of the accident, Holeman had represented Farmers' insured in the County Court in Dodge City, Kansas, the trial of the case having been concluded at approximately 11:45 A.M. on October 11, 1967. This was the only matter which Holeman handled for Farmers on the day in question, and how and where he spent the balance of that particular day is not known, at least from the record before us. Apparently Holeman sometime during the afternoon did imbibe alcoholic beverages. In any event, as he was returning that evening from Dodge City to his home in Wichita he negligently caused his vehicle to strike the vehicle in which the Brinkleys were riding. As indicated, the Brinkleys were severely injured, and Holeman himself was killed.

It was in this general setting that the Brinkleys brought separate diversity actions against Farmers, alleging that Holeman was an agent, servant and employee of Farmers and that accordingly Farmers, under the doctrine of respondeat superior, was liable to the Brinkleys for their damages, which were said to total some $350,000, as actual damages, plus an additional $100,000, as punitive damages. By answer, Farmers specifically denied that Holeman was its agent, servant or employee, and generally denied any vicarious liability on its part.

The parties to the litigation filed with the trial court a very elaborate joint stipulation of fact, which fully explored, and set forth in detail, the nature of the relationship between Holeman and Farmers. Based, then, on the underlying facts contained in the joint stipulation, Farmers moved for summary judgment. After argument, this motion was granted and summary judgment was entered in favor of Farmers. The Brinkleys now appeal. We affirm. In order for this opinion to have any real meaning, we feel the stipulation of facts should be summarized in considerable detail. The nature of the relationship between Holeman and Farmers is of course all important.

As indicated, Holeman was an attorney at law licensed to practice in Kansas, and he maintained his own law office in Wichita. In connection therewith Holeman employed a legal secretary and he had recently employed a young attorney to assist in the operation of his law office. Holeman had maintained his own law office since about 1955, when he had left a firm of lawyers with whom he had previously been associated for several years. Holeman held himself out to the public as engaging in the general practice of law, and he was so considered by other members of the Bar in the Wichita area.

Farmers is an insurance company incorporated in Iowa and maintaining its principal offices in Des Moines, Iowa. It has an office in Hutchinson, Kansas, which is headed by a claims adjuster who is a full-time employee of Farmers.

In the conduct of its business, Farmers always attempted to negotiate and settle any claim against one of its insureds through its claims adjuster. If a claim could not be settled, and a lawsuit was instituted against one of its insureds, then Farmers at that point would employ counsel to defend the suit. Prior to 1955, Farmers had frequently employed the firm with which Holeman was then associated to represent its insureds. After Holeman terminated his association with the firm in 1955, Farmers began employing Holeman to represent its insureds against whom suit had been filed. This relationship grew to the end that in the ensuring years Holeman was travelling all over Kansas in his representation of Farmers' insureds and at one time the monies received by Holeman from Farmers represented nearly 90% of his total income from his practice of the law.

In traveling around the state of Kansas, Holeman generally used his own vehicle, although he sometimes traveled with others or used commercial airlines. There was no contract between Farmers and Holeman, and the latter was hired on a case-by-case basis, with his fees for services being rendered on an hourly basis at a standard charge. He was also reimbursed by Farmers for out of pocket expenses, including travel expense at 8¢ per mile.

The manner in which a particular case would be tried was in Holeman's hands, with Farmers reserving only the right to decide whether a given case should be settled or tried. Accordingly, though an adjuster sometimes sat in on a trial, Holeman was in command of the trial itself, as well as the pretrial investigation and preparation.

It was in this general factual setting that Farmers employed Holeman to represent one of its insureds who was being sued in Dodge City, Kansas, which is located some 150 miles west of Wichita. Pursuant to his employment, Holeman drove in his own automobile to Dodge City where, during the morning of October 11, 1967, he tried a case for Farmers' insured. This trial concluded before noon on the 11th. What Holeman did on the afternoon of the 11th is not known, although it is agreed that he performed no other services for Farmers during that time. En route back to Wichita, Holeman in the early evening of the 11th was involved in the accident out of which the present controversy arose.

In granting Farmers' Motion for Summary Judgment, the trial court observed that under applicable Kansas law though a principal is liable for the tort of his agent, he is only liable if the tort be committed at a time when the agent is acting within the scope of his authority or employment....