Coe v. Riley
| Decision Date | 25 March 1947 |
| Docket Number | No. 11850.,11850. |
| Parties | COE v. RILEY. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E. Snow Martin, of Lakeland, Fla., for appellant.
R. W. Shackleford, of Tampa, Fla., for appellee.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
Appellant, as plaintiff, alleged that he had received personal injuries from the negligent operation of defendant's tractor-truck at a time when the same was being operated by Lee Roy Woodson as an agent or servant of defendant within the scope of his employment and at a time when defendant had entrusted the truck to Woodson for operation.
After the filing of an answer by defendant and the deposition of Woodson by the plaintiff, defendant moved for summary judgment on the ground that the deposition showed as a matter of law that at the time of the accident Woodson was not operating the truck within the scope of the entrustment or authority granted to him by the owner, nor as his servant, agent, or employee so as to set up the relation of respondeat superior between defendant and the driver.
Facts of the deposition pertinent to the motion show that defendant, in February, 1946, at Memphis, Tennessee, turned over to Woodson five employees, the tractortruck, and a semi-trailer loaded with equipment, with instructions to proceed to Mulberry, Florida, to do certain work on the city water tank there.
Upon arrival at Mulberry the trailer was disconnected but the truck was used for odd jobs in connection with the work, such as hauling equipment from the depot, getting gas, and the like. It was against the master's specific orders for Woodson or anyone else to make personal use of the vehicle. It was to be used only in and about the work at hand. Woodson was in charge of the work and was a vice-principal of defendant.
Between twelve and one o'clock on the night of February 24, 1946, Woodson received a telephone call from two members of his crew saying that they were at a dance hall at Bartow, eight miles distant, without means of getting back to Mulberry, and requesting Woodson to come for them. Woodson complied with their request, stating in his deposition that he took the truck and went after these men as an accommodation to them and also in order that they would be on the job the next morning.1
The testimony of Woodson as to his purpose is going after the two employees of defendant apparently is conflicting. At least it is ambiguous. There is his testimony to the effect that he went after the men as an accommodation to the men, and there is also his testimony that he went after them so as to have them on the job for work the next morning.
It was on the way to pick up the men that the accident and injury to plaintiff occurred.
Defendant insists that the tractor-truck had been entrusted to Woodson under strict instructions that it should be used only in and about the business of the employer in the performance of the work which the crew was sent to do; that the driver was engaged only in a personal mission as an accommodation to the two employees at the dance hall; that such a mission was outside the scope within which the use of the truck had been entrusted to Woodson, and that the theory of liability based upon the entrustment to the driver of a dangerous instrumentality, as first announced by the Supreme Court of Florida in Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715; id. 80 Fla. 441, 86 So. 629, 16 A.L.R. 255, was not applicable in the absence of proof of the existence of the relation of respondeat superior between the driver and defendant at the time of the accident;2 and that there was no obligation, contractual or otherwise, upon the employer, or upon his foreman, to furnish the employees with transportation to or from dance halls.
The Court below, thinking that the deposition showed the absence of any relationship that would fasten liability upon the defendant for the alleged negligence of Woodson on the occasion in question, sustained defendant's motion for a summary judgment and dismissed the case.
It seems to be conceded that Woodson was limited in his right to use the truck to the business or purposes which he and his crew had been sent to accomplish. But whether or not keeping his crew on the job in the performance of the work was within the scope of his employment and authority is not a question of law but of fact. If this were...
To continue reading
Request your trial
-
Girard v. Gill, 7746.
...4 Cir., 1958, 256 F.2d 521, 522. Conflicts and ambiguities are not to be resolved on motions for summary judgment, Coe v. Riley, 5 Cir., 1947, 160 F.2d 538, 540, nor is the trial court to choose between conflicting inferences, Sarkes Tarzian, Inc. v. United States, 7 Cir., 1957, 240 F.2d 46......
-
Lenz v. Erdmann Corp., 84-5720
...956 (7th Cir.1975); Gross v. Southern Ry. Co., 414 F.2d 292 (5th Cir.1969); Gauck v. Meleski, 346 F.2d 433 (5th Cir.1965); Coe v. Riley, 160 F.2d 538 (5th Cir.1947).3 Incidentally, the deposition was entirely consonant with that of both the Lenz and Luan testimony that probed the reason for......
-
Hyman v. Regenstein
...Co., 8 Cir., 139 F.2d 318; Purity Cheese Co. v. Frank Ryser Co., 7 Cir., 153 F.2d 88; Arnstein v. Porter, 2 Cir., 154 F.2d 464; Coe v. Riley, 5 Cir., 160 F.2d 538; Butcher v. United Electric Coal Co., 7 Cir., 174 F.2d 1003; Chappell v. Goltsman, 5 Cir., 186 F.2d 215; Syms v. McRitchie, 5 Ci......
-
Travelers Insurance Company v. Miller
...Kerr's affidavit. (Emphasis supplied.) "Conflicts and ambiguities are not to be resolved on motions for summary judgment, Coe v. Riley, 5 Cir., 1947, 160 F.2d 538, 540, nor is the trial court to choose between conflicting inferences, Sarkes Tarzian, Inc. v. United States, 7 Cir., 1957, 240 ......