145 Va. 489
J. W. CROWELL
JOHN A. DUNCAN.
Supreme Court of Virginia, Wytheville.
September 23, 1926.
Absent, West, J.
1. NEW TRIAL — Plaintiff's Assertion of Two Theories of Liability of Defendant — General Verdict — Instruction that Defendant was Liable if Jury Believed Either Theory of Plaintiff — Evidence to Support Both Theories — Case at Bar. — In the instant case, an action for negligent injuries, the action was tried upon two theories of liability as far as defendant was concerned. As the verdict was a general one, and did not indicate upon which theory of plaintiff's case it was founded, and as the court instructed the jury, in effect, that if they believed either theory upon which plaintiff sought to hold the defendant liable was supported by evidence they should find for the plaintiff, if the evidence failed to support the verdict upon both theories, the verdict should be set aside.
2. APPEAL AND ERROR — Conflicting Evidence — Case Viewed as Upon a Demurrer to the Evidence. — Where questions of fact upon which the evidence is conflicting have been determined in favor of the plaintiff, the Supreme Court of Appeals views the evidence upon these questions practically as upon a demurrer to the evidence and the inquiry as to each is, was there evidence to support the finding?
3. MASTER AND SERVANT — Termination of the Relationship — Evidence Contradicting Testimony of the Master and Servant that the Relationship had Terminated — Case at Bar. — In the instant case, an action against a father, the owner of an automobile, for injury to plaintiff occurring when the automobile driven at an illegal rate of speed by defendant's adult son struck plaintiff, plaintiff asserted that the son was a servant of the father. The automobile had been operated as a taxi. Both father and son testified that the relationship of master and servant had terminated before the accident. Several witnesses, however, testified that they had seen the son driving the car with the taxi sign on it after the time of the accident and one of the witnesses testified that on the day of the accident the son had driven him home and collected a fare from him.
Held: That there was ample evidence to justify the conclusion reached by the jury that the son was still in the employment of the defendant and in charge of the taxi at the time of the accident.
4. QUESTIONS OF LAW AND FACT — Credibility of Witnesses — Weight of the Evidence. — The jury are the sole judges of the credibility of the witnesses and the weight of the evidence.
5. MASTER AND SERVANT — Negligence — Scope of Servant's Employment — Burden of Proof. — In an action against a master for the negligence of his servant where the agency is admitted, the burden is upon the defendant to show that the servant was not acting within the scope of his employment. When the relation of master and servant is established, and the master undertakes to show that he comes within an exception to the general rule, the burden of proving that he does so is upon the master.
6. MASTER AND SERVANT — Negligence of Servant — Liability of Master. — The general rule is that the master is liable for all tortious acts of the servant committed by such servant while acting within the scope of his employment.
7. MASTER AND SERVANT — Scope of Servant's Employment — Doubt Resolved against the Master. — Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority the doubt will be resolved against the master, because he set the servant in motion, at least to the extent of requiring the question to be submitted to the jury.
8. MASTER AND SERVANT — Automobile Accident — Scope of Employment — Questions of Law and Fact — Case at Bar. — In the instant case, plaintiff was injured when struck by an automobile belonging to the defendant, driven at an illegal rate of speed by defendant's adult son. The car was kept for hire by defendant and he turned it over to the son with authority and in his discretion to transact such business as he could and make return to him as employer. At the time of the accident within business hours, with a taxi sign prominently displayed, the son driving at a reckless rate of speed ran into and injured the plaintiff. The burden was upon the master under these circumstances to prove that the servant was not acting within the scope of his employment.
Held: That, as the evidence left the question in doubt, the court did not err in submitting it to the jury and their verdict was conclusive.
9. MASTER AND SERVANT — Automobile Accident — Scope of Servant's Employment — Evidence not Sufficient to Show that Servant was Not Acting within Scope of his Employment — Case at Bar. — In the instant case, an action by plaintiff against defendant to recover for injury incurred when he was struck by defendant's car driven at an illegal rate of speed by the defendant's adult son, the son testified that in company with a companion he went to a restaurant where he met a friend who suggested there they take the car and catch up with two girls and take them home. This they undertook to do, and while proceeding along the street, ran into plaintiff. The son was corroborated in this testimony. The car was operated as a taxi with the son as chauffeur. The accident occurred in business hours with a taxi sign prominently displayed.
Held: That this evidence was not sufficient to sustain the burden of proof that the son was not acting within the scope of his employment. The case is to be distinguished from that of a private chauffeur acting under specific orders.
10. QUESTIONS OF LAW AND FACT — Credibility of Witnesses — Rebuttal of Prima Facie Case. — The jury are the judges of the credibility of the witnesses, and usually, when a prima facie case has been made out by the plaintiff the question as to whether it has been rebutted is for the jury.
11. MASTER AND SERVANT — Liability of Master for Negligence of Servant — Discretion of Servant — Scope of Employment. — Where discretion is vested in a servant as to the handling of any instrumentality placed in his hands by the master, this is a weighty circumstance for the consideration of a jury in determining whether or not the master is liable for an injury inflicted by such servant while in charge of such instrumentality, that is, whether the servant is acting within the scope of his employment.
12. MASTER AND SERVANT — Liability of Master — Taxi Driver — Case at Bar. — When a taxi driver was in charge of his taxi in business hours within the territory of his employment with his taxi sign displayed, the mere fact that he had a friend in the taxi with him and he and his friend testify that they were pursuing their own pleasure, is not conclusive of the question as to whether he was acting within the scope of employment as a matter of law. At best, even if they are to be believed, the question would still be one of fact for the jury as to whether the chauffeur was not combining his pleasure or business with that of his master's. This does not relieve the master of liability.
13. MASTER AND SERVANT — Taxi Driver — Action for Negligence — Liability of Master — Instructions. — In an action for injury to plaintiff when struck by a taxi, the court instructed the jury, if the owner of the car acquiesced in his chauffeur transporting his friends free of charge where the chauffeur was accustomed to haul passengers and where he was likely to be hailed by passengers, although at the time of the injury the chauffeur was not transporting a passenger for hire, that the exhibition of a taxi sign and the running of the car at a place apt to be hailed as a jitney were facts to be considered in determining the question, whether or not the operation of the car at the time of the injury was within the scope of the chauffeur's employment.
Held: That this instruction was even more favorable to the defendant than he was entitled to, as it did not make any difference whether the defendant knew the chauffeur carried his friends at times free of charge or not.
14. MASTER AND SERVANT — Automobile Accident — Liability of Master — Scope of Employment — Burden of Broof — Case at Bar. — In the instant case, an action by plaintiff against defendant for injuries received when struck by defendant's car driven by defendant's adult son, the court instructed the jury that if they believed the car was owned by defendant and defendant was in the habit of having the car run by his son as a jitney as his agent, then the burden was on the defendant to show that the son was not acting within the scope of his employment at the time of the injury, and if defendant failed to sustain this burden and the jury believed that the son was his agent, they should find for the plaintiff, provided the son negligently or unlawfully injured the plaintiff.
Held: That the instruction correctly propounded the law.
15. MASTER AND SERVANT — Automobile Accident — Driver under the Influence of Liquor — Knowledge of Master of Servant's Intemperate Habits — Case at Bar. — In the instant case, an action by plaintiff for injury received when he was struck by defendant's car driven by defendant's adult son, plaintiff alleged that defendant negligently permitted his son, knowing him to be of intemperate habits and because of such habits a reckless and dangerous driver, to use defendant's car at will; and, that while under the influence of liquor the son negligently ran the automobile at an unlawful rate of speed along a public street and into the plaintiff, injuring him. There was sufficient evidence to sustain these allegations.
Held: That a verdict for plaintiff could not be disturbed.
16. AUTOMOBILE — Intemperate Habits of Driver — Evidence to Establish Habits. — In the instant case, an action for injury to plaintiff when struck by defendant's car driven by his adult son, a large number of witnesses testified that the son had the reputation of a drinking...