Corley v. LIFE AND CASUALTY INSURANCE CO. OF TENN., 16270.

• Decision Date: 02 November 1961
• Docket Number: No. 16270.,16270.
• Parties: Ruth D. CORLEY et al., Appellants v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, a corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F.2d 449 (1961)

Ruth D. CORLEY et al., Appellants v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, a corporation, Appellee.

No. 16270.

United States Court of Appeals District of Columbia Circuit.

Submitted October 11, 1961.

Decided November 2, 1961.

Mr. Charles A. Iovino, Jr., Washington, D. C., submitted on the brief for appellants.

Mr. Richard W. Galiher, Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, submitted on the brief for appellee.

Before WILBUR K. MILLER, Chief Judge, and WASHINGTON and BURGER, Circuit Judges.

WILBUR K. MILLER, Chief Judge.

Ruth Corley and her husband sued John E. Lockhart and Life and Casualty Insurance Company, his employer, to recover for personal injuries and property damage sustained when Lockhart's automobile collided with the Corley car on Friday, March 15, 1957, at the intersection of 7th and L Streets, S. E., in the District of Columbia.

On the theory that Lockhart was not acting within the scope of his employment, the company moved for summary judgment. After considering depositions and affidavits, the trial court made findings of fact that at the time of the accident Lockhart was operating his own automobile, was not then in the employ of the insurance company, and therefore was not operating the automobile as its agent, servant or employee, but was on his own personal business. Accordingly, summary judgment was granted to the insurance company and this appeal followed.

The action against Lockhart, who has been adjudicated a bankrupt, is not involved here. The sole question is, was a genuine issue of material fact raised as to whether Lockhart was acting within the scope of his employment when the accident happened?

It appears from the depositions and affidavits that, at the time of the accident, Lockhart was an insurance salesman employed by the company at a salary of $35.00 per week plus commissions, with an allowance of $3.50 per week toward the expense of operating his own car in covering the territory in which he collected premiums. The scene of the accident was not within the area assigned to him. It appeared that he usually devoted only four days a week to company business, and ordinarily did not choose to work on Friday. His affidavit stated he was not engaged in any activity on behalf of the company on the Friday when the accident occurred, but had visited his mother-in-law's home and was on the way from there to see his brother-in-law at a gas station where the latter was employed, with the intention of buying tires for his car. His deposition was to the same effect. An affidavit of the company manager stated the accident happened outside Lockhart's "debit area," that is, his assigned territory, and "upon information and belief" concluded Lockhart was not acting within the scope of his employment at the time of the collision.

The affidavit of an attorney for the Corleys said he was present at a hearing in the Corporation Counsel's office when Lockhart made certain statements in connection with his activities on the date of the accident, March 15, 1957, and heard Lockhart say

"* * * that just prior to the accident he had delivered an insurance policy and he was going to acquire new tires for his car at which time he expected to make a sale of an insurance policy to a person at the service

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