Crowell v. Duncan

Citation134 S.E. 576
Case DateSeptember 23, 1926
CourtSupreme Court of Virginia

134 S.E. 576


Supreme Court of Appeals of Virginia.

Sept. 23, 1926.

[134 S.E. 576]

Error to Circuit Court, Pulaski County.

Action by John A. Duncan against J. W. Crowell. Judgment for plaintiff, and defendant brings error. Affirmed.

Gilmer & Wysor, of Pulaski, for plaintiff in error.

John S. Draper and Tipton & Tipton, all of Pulaski, for defendant in error.

CHICHESTER, J. J. W. Crowell is here complaining of a judgment in the sum of $1,000, rendered against him in May, 1925, in the circuit court of Pulaski county, in favor of John A. Duncan.

It is undisputed that on January 3, 1025, Bruce Crowell, adult son of J. W. Crowell, driving a Dodge automobile, belonging to his father, at an excessive rate of speed, on the streets of the town of Pulaski, after having taken two or three drinks, of whisky, negligently ran into and injured John A. Duncan.

John A. Duncan, hereafter referred to as plaintiff, brought action against the father, J. W. Crowell, hereafter referred to as defendant, alleging damages in the sum of $5,000, and the judgment complained of resulted.

The action was prosecuted and tried upon

[134 S.E. 577]

two theories of liability as far as the defendant was concerned.

The first was that the defendant operated e taxi for hire in the town of Pulaski, that he hired his son Bruce Crowell as his chauffeur or agent, and put him in charge and control of the Dodge automobile, and that, while acting as such agent, in the general scope of his authority, Bruce Crowell negligently ran into and injured the plaintiff.

The second was that the defendant negligently permitted Bruce Crowell, knowing him to be of intemperate habits, and because of such habits a reckless and dangerous driver, to use his (defendant's) automobile at will, and that while under the influence of liquor he negligently ran defendant's automobile at an unlawful rate of speed along the streets of Pulaski and into the plaintiff, injuring him.

Evidence was introduced by the plaintiff on both these theories of alleged liability, and the trial court instructed the jury upon both theories.

The defendant met the first charge of liability with the contentions (and with testimony to support them): (1) That, at the time of the injury to plaintiff, the relationship of master and servant between defendant and Bruce Crowell had been terminated. (2) That, if this relationship had not been terminated at the time of the injury, Bruce Crowell was not performing any service for the defendant, but was engaged in an enterprise of his own.

He met the second charge of liability by the assertion and his own testimony that, while he knew Bruce Crowell drank at times, he never knew him to be under the influence of liquor to any extent while driving his automobile, and that he considered him a safe and careful driver. The court instructed the jury upon the several defenses thus raised, and the jury returned a general verdict for the plaintiff, without designating the ground of liability upon which it rested the verdict.

The defendant alleges four grounds of error as follows:

(1) That the judge of the circuit court erred, in refusing to give defendant's instruction No. 12.

(2) In giving instructions numbered 1, 2, 4, and 6.

(3) In refusing to permit defendant to testify that he had received no complaints from the post office authorities about Bruce Crow-ell's conduct in carrying the mail.

(4) In refusing to set the verdict aside as contrary to the law and the evidence.

As we view the case, it is not necessary to discuss any of the grounds of error with.any elaborations except the fourth, since, for the most part, the correctness or incorrectness of the instructions will appear from the discussion of this question.

All the instructions given appear in the margin.1 As the verdict is a general one, that is, that it did not indicate upon which theory of the plaintiff's case it was founded and as the court instructed the jury, in effect, that, if they believed either theory upon which the plaintiff sought to hold the defendant liable,

[134 S.E. 578]

was supported by evidence, they should find for the plaintiff, under a familiar rule, if the evidence fails to support the verdict upon both theories it will be necessary to set the verdict aside.

The consideration of the question of the sufficiency of the evidence, therefore, resolves itself into a discussion, upon the first theory under which the plaintiff seeks to hold the defendant liable, of the following questions:

(1) Was Bruce Crowell the agent of the defendant at the time of the injury of plaintiff?

It will be recalled that it was conceded that he was negligent. There was no defense upon this charge.

(2) Was he acting within the scope of his employment at the time of the accident?

Upon the second theory under which the plaintiff seeks to hold the defendant liable the questions involved are:

A. Was Bruce Crowell, independently of the question of agency, a man of such intemperate habits in the use of ardent spirits that it was negligence on the part of any one knowing of his habits to permit him to use, at will, his automobile? and

B. Did the defendant know of the intemperate habits of Bruce Crowell?

The jury has resolved all these questions favorably to the contention of the plaintiff and against the contention of the defendant, and we must view the evidence upon these several points practically as upon a demurrer to the evidence, and the inquiry as to each is, Was there evidence to support the finding?

1. The evidence discloses that for some years prior to the injury to plaintiff the defendant had been operating an automobile for hire, a taxi, in, and in the vicinity of, the town of Pulaski; that he and Bruce also had a contract to carry rural mail, and that his son Bruce Crowell carried the mail in a Ford car in the mornings, and in the afternoons and at nights he was employed by defendant to drive and was given charge of defendant's Dodge car as a taxi.

Both the defendant and Bruce Crowell testified that, because he was not making any money in the "jitney" business, defendant told his son that they would not operate the "taxi" after December 31, 1924, which was three days prior to the injury to plaintiff, and that the relation of master and servant terminated on December 31, 1924. However, one witness testified that Bruce Crowell drove him home about 4 p. m. on Saturday, January 3d, the day of the accident, and collected a fare of 50 cents from him. He testified further that the "taxi" sign was on the car at that time. Another witness testified that on Sunday, January 4th, Bruce Crowell was in the Dodge car, with the taxi sign displayed; on the regular taxi stand in Pulaski, and that the defendant was present at the time witness got in the car with Bruce, and while defendant was present they drove off together. Several other witnesses testified that they had seen Bruce Crowell driving the Dodge car with the taxi sign on it after January 1, 1925, and one testified that he had seen him at the station with the car.

Under these circumstances the testimo-

[134 S.E. 579]

ny of the defendant and his son that the relationship of master and servant had terminated was not conclusive of the question. There was ample evidence to justify the conclusion reached by the jury that Bruce Crowell was still in the employ of defendant and in charge of his taxi. The jury were the sole judges of the credibility of the witnesses and of the weight of the evidence. The question of agency and of the credibility of the witnesses was fairly submitted to the jury by tho instructions, as reference thereto will disclose.

2. The second inquiry, upon the first ground of liability, presents a very close question. The real inquiry is, Was the question as to whether Bruce Crowell was acting within the scope of his employment or was he engaged in a frolic of his own, under the evidence in this case, one to be determined by the court, or was it a question of fact, to be submitted to, and determined by, the jury? As this defense admits the agency, proof of which primarily rested upon the plaintiff, the burden was upon the defendant to show that Bruce Crowell was not acting within the scope of his employment. 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. 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. Thus in Barmore v. Vicksburg, S. & P. R. Co., 85 Miss. 426, 38 So. 210, 70 L. R. A. 628, 3 Ann. Cas. 594, the court said:

"In order to escape liability it devolves upon the master to prove that the servant had abandoned the duties of his employment, and gone about some purpose of the servant's own, in which the master's business was not concerned, and which was not incident to the employment for which the servant was hired. If the testimony leaves this question in doubt, it must be submitted to the jury"—citing Ritchie v. Waller, 63 Conn. 157, 28 A. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361.

If there Is no conflict in the facts, it Is a question of law for the court. Barmore v. Vicksburg, S. & P. R. Co., supra; Berry on Automobiles (4th Ed.) p. 1050; Id., § 1167, p. 1040.

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. 39 C. J. 1284, and cases cited.

Under the facts in the instant case, viewed in the light of the authorities cited, we think the trial court did not err in submitting this question to the jury, and, if this is true, their verdict is conclusive. Viewing the evidence upon this point as upon a demurrer to the evidence, we have this...

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