Burger Chef Systems, Inc. v. Govro

• Decision Date: 25 February 1969
• Docket Number: No. 19235.,19235.
• Citation: 407 F.2d 921
• Parties: BURGER CHEF SYSTEMS, INC., a Corporation, Appellant, v. Lee J. GOVRO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.2d 921 (1969)

BURGER CHEF SYSTEMS, INC., a Corporation, Appellant, v. Lee J. GOVRO, Appellee.

No. 19235.

United States Court of Appeals Eighth Circuit.

February 25, 1969.

COPYRIGHT MATERIAL OMITTED

Eugene K. Buckley, of Evans & Dixon, St. Louis, Mo., for appellant.

Mortimer A. Rosecan, of Rosecan & Popkin, St. Louis, Mo., for appellee; Alan E. Popkin, St. Louis, Mo., with him on the brief.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

VOGEL, Circuit Judge.

This appeal is from a judgment of the United States District Court for the Eastern District of Missouri based on a jury verdict of $150,000 to Lee J. Govro, plaintiff-appellee, against Burger Chef Systems, Inc., appellant-defendant, in a suit for money damages by reason of personal injuries. The injuries resulted from plaintiff's being struck, while a pedestrian, by an automobile owned and driven by defendant's agent, Joseph C. Norris, Jr. Federal jurisdiction is based upon diversity of citizenship and the requisite amount in controversy.

The following issues are raised on appeal: (I) whether the District Court erred in failing to sustain defendant's motions for directed verdict and for judgment notwithstanding the verdict on the ground that its agent, as a matter of law, was not acting in the course and scope of his employment at the time of the accident; (II) whether the District Court erred in admitting hearsay evidence in the form of an out-of-court statement attributed to defendant's agent Norris; (III) whether the defendant was prejudiced by the allegedly cumulative erroneous admission of evidence pertaining to the claim of injury which was calculated to arouse passion and prejudice, and by plaintiff's counsel's allegedly inflammatory and prejudicial argument to the jury; and (IV) whether the District Court erred in refusing defendant's requested instruction on the agency issue. We affirm.

The substantive law of Missouri is controlling. Elder v. Dixie Greyhound Lines, 8 Cir., 1946, 158 F.2d 200, 202. Because the jury found for plaintiff, we must view the evidence in the light most favorable to him and give him the benefit of such favorable inferences as may reasonably be drawn therefrom. Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274, 275-276. The evidence so viewed shows the following facts:

On July 26, 1965, the date of the accident, plaintiff was an employee of the Frontier Life Insurance Company of Jefferson City, Missouri. In the early afternoon he parked his automobile on the south side of Big Bend Boulevard about 300 feet west of South Elm Street in Webster Groves, Missouri. Big Bend runs generally east and west and has a parking lane on each side and one traveling lane for eastbound and another for westbound traffic. Plaintiff got out of his automobile and stood to the rear of it, facing north, waiting for eastbound traffic to pass so that he could cross the street for the purpose of making a business call. While so standing, plaintiff was struck and pushed into the rear of his automobile by an eastbound automobile owned and operated by Joseph Norris. Plaintiff was seriously and permanently injured.¹

At the time of the accident, Norris was nineteen years of age and in the general employ of defendant Burger Chef as assistant manager of its restaurant on Watson Road, just east of South Elm Avenue in Webster Groves, Missouri. Norris, as required while on duty, was wearing white trousers and a white shirt with the emblems "Burger Chef" and "Assistant Manager" thereon. Because the manager of the restaurant, Mr. Swann, was away on a business trip that day, Norris, as assistant manager, was in charge of the restaurant's operation. Norris had reported for duty at approximately 5:45 a. m. and had worked continuously from 6:00 a. m. until he left on the fateful trip at approximately 1:30 p. m.

Norris, as assistant manager, was permitted to use his discretion as to when he took a lunch period and how much time he took. Although he was entitled to a free lunch at Burger Chef, he tired of the restaurant's restricted fare of hamburger and fish and once or twice a week would go out for something different, usually chicken. Whenever Norris and Swann were on duty together, one would obtain the chicken, using his own personal automobile, and bring it back to the restaurant for both to eat. Fried chicken was usually obtained at the Kentucky Fried Chicken restaurant located at or near the intersection of Lockwood and Big Bend Boulevard. The Kentucky Fried Chicken place was selected because it was closest to Burger Chef and the chicken was ready for immediate takeout. The reason the chicken was taken back to Burger Chef for consumption was to allow Norris and Swann to interrupt their lunch and help if necessary.

It was part of Norris' duty to obtain money change and merchandise when required for the restaurant's operation. Therefore, because there was a shortage of change right after the noon rush on this day, Norris decided to obtain change at the Crestwood Bank, where the restaurant had an account. Norris' time of leaving was dictated by the need for the change and the fact that the bank closed at 2:00 p. m. Norris had never been directed to use any particular means of transportation to go to the bank and was free to use any method he selected. On the day of the accident Norris used his own automobile for such purpose, as he had done in the past with the knowledge of the manager and for which he was not reimbursed by his employer.

On this day, Norris decided to obtain both the money change and the chicken for his own personal lunch in one combined trip. This would entail his going west on Watson Road to the Crestwood Bank at or near the intersection of Watson Road and Sappington Road, a distance of approximately 1.6 miles; then north on Sappington Road, a distance of approximately one mile; then in an easterly direction on Big Bend Boulevard to Kentucky Fried Chicken at or near the intersection of Big Bend and Lockwood Avenue, a distance of approximately 3.1 miles; then west again to South Elm, a distance of approximately 1.2 miles; and then south on South Elm to Burger Chef for a distance of 1.33 miles. Norris estimated that the combined trip to both places would take approximately 20 to 25 minutes. The distance directly from Burger Chef to Kentucky Fried Chicken is approximately 2.5 miles and directly from Burger Chef to Crestwood Bank, 1.6 miles. On cross-examination, he estimated that if he had made two separate trips — one from Burger Chef to the Crestwood Bank and back with the change and then another trip from Burger Chef to Kentucky Fried Chicken — the trips would require a total time of about 18 to 23 minutes. Norris also testified that the two separate trips would require a longer period of time than would one combined trip and that a round trip by automobile between Burger Chef and the Crestwood Bank would take approximately eight minutes.

Following the above routing on the day of the accident, Norris drove west on Watson Road, obtained the change at the Crestwood Bank, drove north on Sappington Road to the intersection with Big Bend, and then turned east on Big Bend toward Kentucky Fried Chicken. The accident occurred on Big Bend a short distance west of the intersection of South Elm and Big Bend.

I.

It is defendant's position that the evidence shows, as a matter of law, that Norris was on a personal mission at the time of the accident, had materially deviated from his employer's business, and was not performing any act which was of such special direct benefit to his employer as to warrant a jury finding that he was in the course and scope of his employment. Defendant therefore contends that it was entitled to a directed verdict and judgment.

It is plaintiff's position that there was some direct benefit to Burger Chef from Norris' combining going to the bank and picking up his lunch into one trip.

If plaintiff is to recover from Burger Chef it can only be under the doctrine of respondeat superior, whereby a master is liable for his servant's torts committed in the course and scope of his employment. Restatement, Agency, § 219. In Stokes v. Four-States Broadcasters, Mo., 1957, 300 S.W.2d 426, 428, the Supreme Court of Missouri stated:

"No definite rule has been formulated by which it may be determined in every instance whether the driver of an automobile, in the general employment of another, was acting within the scope of his employment, and under the control of his employer, at a given time so as to render his employer liable for his negligence in driving the vehicle. That determination must necessarily depend upon the facts and circumstances of each case."

Whether or not the right of control exists in a particular case is ordinarily a question of fact for the jury. Gardner v. Simmons, Mo., 1963, 370 S.W.2d 359, 361; Benham v. McCoy, Mo., 1948, 213 S.W.2d 914, 919. "Each case must depend upon its own facts and no single test considered alone is conclusive of the ultimate test, the right to control." Gardner v. Simmons, supra, 370 S.W.2d at 361. If the facts and legitimate inferences to be drawn therefrom are in dispute, the issue is one for the jury. Gardner v. Simmons, supra.

The trial court in the instant case determined, and we think correctly so, that the evidence presented a jury question as to the defendant's responsibility for Norris' negligent acts at the time of the accident. Certainly there was dispute as to the reasonable inferences to be drawn from the facts. The trial court presented the agency question to the jury upon the following instructions, to which no exceptions were taken:

"The ultimate questions you must decide are whether or not Mr. Norris was acting within the scope and course of his employment with Burger Chef at the time he injured Mr. Govro, and whether or not Norris was negligent, and was his negligence the proximate cause of plaintiff\'s injuries.

"The test for determining

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