Burton v. La Duke

• Citation: 210 P. 978,61 Utah 78
• Decision Date: 06 December 1922
• Docket Number: 3816
• Court: Supreme Court of Utah
• Parties: BURTON v. LA DUKE

210 P. 978

61 Utah 78

BURTON v. LA DUKE

No. 3816

Supreme Court of Utah

December 6, 1922

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by Mary Jane Burton against Emery E. La Duke, doing business as the Capitol Cleaning Company, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Richards & Mitchell, of Salt Lake City, for appellant.

Stewart Stewart & Alexander, of Salt Lake City, for respondent.

CORFMAN C. J. WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CORFMAN, C. J.

Plaintiff brought this action against the defendant to recover damages alleged to have been sustained by her on account of the negligent operation of an automobile upon the streets of Salt Lake City. It is alleged in the complaint that the automobile was out of repair, and by reason of that and the careless and negligent manner in which it was driven by the agent or servant of the defendant it ran into and struck the plaintiff, causing her serious injuries of which she complains. The answer denies the allegations of the complaint, and for an affirmative defense alleges that if the plaintiff was injured in the manner complained of it was while the defendant's agent was acting wholly outside the scope or course of his employment, and without fault of the defendant. After a trial to a jury judgment was duly entered upon a verdict in plaintiff's favor. Defendant appeals.

He assigns many alleged errors as grounds for a reversal of the judgment. The principal errors, and those relied on in the brief and argument before this court, are as follows: (1) The denial of defendant's motion for a nonsuit at the conclusion of plaintiff's evidence; (2) certain instructions given to the jury; (3) the refusal to charge the jury as requested by the defendant; (4) the exclusion and admission of certain evidence over defendant's objections; (5) the refusal to grant defendant's motion for a new trial. It is also claimed as ground for a reversal of the trial court's judgment that the evidence was insufficient to justify a verdict in plaintiff's favor.

It appears from the record that at the time of the accident complained of the defendant was engaged in operating a cleaning plant under the name and style of the Capitol Cleaning Company, at the southwest corner of the intersection of State and Eighth South streets in Salt Lake City. Defendant had in his employ a number of employes working on a commission basis, among them one Frank E. Pettigrew, whose duty it was to drive a small automobile truck furnished him by the defendant and used by Pettigrew in soliciting orders about the city and gathering and delivering the clothing of the patrons of the cleaning plant. The agents or employes referred to had certain routes or districts assigned to them by defendant in which to do their work. Pettigrew's district was in the southern part of the city, and in doing his work he seldom went farther north than Seventh South street.

In the trial of the case, upon the conclusion of the plaintiff's evidence, proof had been received which tended to show that on June 21, 1921, the day of the accident, Pettigrew reported for duty at the defendant's cleaning plant at about 8 o'clock a. m. He afterwards, about 9 o'clock a. m., drove out the defendant's automobile truck, which he had been accustomed to use in the performance of his duties or work, and proceeded to deliver and collect clothes for the defendant's cleaning plant. There was some conflict in the evidence as to the condition the truck was in at the time. According to the testimony of Pettigrew, the driver of the car, quoting from the evidence:

"The brakes wouldn't work. When I would make a turn, if I got into the car track or anything like that, or have to come out from another automobile, the car would lock on me. * * * After I got in some place where I had to make a quick turn it made it kind of bad for me. When the wheels would go to one side and then lock and then swing to the other side I would get control over it after I had gone a little ways. * * * I told him [the defendant] it was hard to steer, and that the wheel turned over every once in a while. I don't know as I said anything about locking. I just told him they turned over on me, and I would be liable to tip over. La Duke [defendant] said, 'Be careful and do not let that happen.'"

The witness was unable to say just where he had been making calls to deliver and collect clothing that morning prior to the accident, except that he did say that he had called and received some clothes for cleaning from a tailoring shop situated at No. 134 West Second South street at about the noon hour. From there he proceeded to drive the truck in an easterly direction over Second South street to Main street, the principal thoroughfare of Salt Lake City, and thence north one block up Main street to the Deseret Bank building, situated on the northeast corner of the intersection of Main and First South streets, where he parked the defendant's truck on the east side of Main street in front of said bank building for the purpose of calling upon his dentist to have an ulcerated tooth treated. After remaining with the dentist about 30 minutes Pettigrew returned to the truck, backed it from the curb, and was proceeding to make a turn to the west side of Main street so as to drive with the bundles he had theretofore gathered during the forenoon to the defendant's cleaning plant, and while making said turn the mechanism of the truck refused to properly operate, causing the truck to run into the safety zone, where the plaintiff was standing waiting for a street car, and knocked her down and injured her. Thereupon Pettigrew and the truck were taken by the traffic officers to the police station. Afterwards the truck was tested by the city officials, who found it to be out of repair and difficult to operate on account of the steering gear having a tendency to lock, thereby preventing a driver from keeping it at times under proper control. The witness Pettigrew had also testified in plaintiff's behalf that, while he had a certain route or district to cover in the doing of his work for the defendant, he did not know its boundaries; that he had that morning for the first time gone as far north as Second South street, and theretofore he had not been going farther north than Seventh South street while doing his work for the defendant. Said witness also testified that he was not confined to any particular hours in which to do his work and in going to the dentist about the noon hour on that particular day his sole purpose was to have an ulcerated tooth treated, of which purpose the defendant had not been informed.

By reason of the facts and circumstances above stated, we think the ruling of the district court in denying defendant's motion for a nonsuit upon the conclusion of plaintiff's direct evidence was fully justified. We will not pause to discuss the legal effect of the evidence at this stage of the trial proceedings, but shall defer doing so until later, when all the evidence in the case, in connection with all the other errors assigned, will be under consideration.

After the motion for nonsuit had been denied the evidence adduced in behalf of defendant tended to show, without going into detail, that the truck was in a fairly good condition of repair shortly before the accident. Defendant's evidence also showed that the bundles of clothing, five in number, found in the car right after the accident, had all been gathered at places south of Seventh South street. None was found in the car belonging to the tailoring establishment on Second South street, from which place Pettigrew testified he had driven the car directly to the Deseret Bank building at the corner of First South and Main streets, for the purpose of having his tooth treated, immediately prior to the accident. Defendant's evidence also tended to show that Pettigrew's district to work in was south of Seventh South street, and that he had been directed by the defendant not to use the truck for any other purpose than those connected with the work he had been employed to do for the defendant within the district assigned to him.

Evidence in behalf of the plaintiff on rebuttal, however, tended to show that the defendant's cleaning establishment had, prior to the accident in question, sent Pettigrew for bundles of clothing to the Oregon Short Line Railroad Depot, as far north as South Temple street, the Deseret Savings Bank building being on First South street on a direct line of travel following streets between said depot and defendant's plant on State street.

After both sides had rested their case, the defendant moved for peremptory instructions, directing the jury to return a verdict as to each cause of action set forth in the complaint, no cause of action. These requests were refused by the trial court. The defendant also presented to the trial court certain requests that the jury be instructed to the effect that, if they found it to be a fact that the defendant's agent Pettigrew had not, on the day of the accident, been authorized to go to any place in Salt Lake City north of Seventh South street, then their verdict should be for the defendant, no cause of action. We think these requests, in the light of the evidence, were also properly denied by the trial court. They, in effect, as did also the defendant's motion for nonsuit and his previous requests for a directed verdict, asked the court to find as a matter of law that under the evidence the defendant could not be held to answer in damages for the injuries sustained by the plaintiff in the accident of which she complains....