O'Dell v. Universal Credit Co.
| Decision Date | 25 May 1937 |
| Docket Number | 8502. |
| Citation | 191 S.E. 568,118 W.Va. 678 |
| Parties | O'DELL v. UNIVERSAL CREDIT CO. |
| Court | West Virginia Supreme Court |
Submitted April 21, 1937.
Syllabus by the Court.
1. In a joint action of tort against master and servant, the plaintiff may dismiss the servant for a reason not going to the merits, without impairing his right to proceed against the master, although the latter is liable only under the doctrine of respondeat superior.
2. The master is answerable to a stranger for an act within the implied authority of a servant, although the master forbade the act.
3. The legal relationship of master and servant is commonly understood to arise when one person subordinately serves another, both consenting thereto. The relationship does not depend on permanency of the service or payment therefor, and may exist outside of actual working time. In the latter case the relationship depends upon the connection between the act in question and the employment. An act expected to contribute even indirectly to the service the person is ultimately to perform, may be within the scope of that service.
4. The master is answerable to a stranger for the negligent act of a person employed by the master's authorized agent, if the act is within the scope of the person's employment.
5. When one is suddenly imperiled, the law makes allowance for his natural alarm and requires of him merely the care of the average person similarly confronted. Whether such care is exercised, or not, is ordinarily a jury question.
Error to Circuit Court, Kanawha County.
Action by W. H. O'Dell, administrator, against Universal Credit Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Joseph F. Hogan, of Columbus, Ohio, and Koontz & Hurlbutt and W Elliott Nefflen, all of Charleston, for plaintiff in error.
John T Copenhaver and Mose E. Boiarsky, both of Charleston, for defendant in error.
Plaintiff recovered a judgment of $1,750 against defendant for the wrongful death of his decedent.
Defendant purchases from dealers the sales contracts of automobiles sold on credit. Robert Stokeley is its field representative in territory around Charleston, and defendant furnished a car to be used and driven only by him. Occasionally he would repossess a car, in which case he had authority to hire someone to drive it to Charleston. He was accustomed to have Edward Hager perform that service, and in order to insure his presence when needed, would take him regularly on trips personally giving him small sums now and then, but paying him on behalf of defendant only for driving repossessed cars. Hager lived several miles from Charleston, and did not own a car. He testified that the night of the fatality, Stokeley said to him they would leave early on a business trip the next day, and for Hager to drive the car home so that he could return to Charleston the following morning soon enough to facilitate their early departure. Decedent was struck and killed by the car while Hager was on his way home. Stokeley testified that he had not authorized Hager to drive the car home, but had directed him to leave it at a city filling station overnight.
Action was instituted against defendant and Hager jointly; but on the voluntary motion of plaintiff, Hager was dismissed before trial.
Defendant contends that the dismissal of Hager was, in effect, an adjudication that he was not liable, and if so, defendant should also have been dismissed, since its liability is dependent upon Hager's; that Stokeley did not have authority to permit Hager's use of the car; that at the time of the accident, Hager was not its employee, nor was he furthering its business; and that decedent was contributorily negligent.
Plaintiff's cause of action against Hager and defendant was in its nature joint and several. Bloss v. Plymale, 3 W.Va. 393, 404, 405, 100 Am.Dec. 752; Eggleston v. Tanner, 86 W.Va. 385, 103 S.E. 113; Wills v. Coal Co., 97 W.Va. 476, 478, 125 S.E. 367; Cooley on Torts (4th Ed.) §§ 86, 87; Pollock on Torts (13th Ed.) p. 202. Since initially plaintiff might have sued only one, he did not lose the right of proceeding to judgment against one by voluntarily dismissing the other. Had Hager been dismissed after exoneration, that would have terminated defendant's liability; it being predicated solely on his alleged wrongdoing. Wills v. Coal Co., 104 W.Va. 12, at pages 17, 18, 125 S.E. 367. But the record shows clearly that he was not dismissed on the merits. In such case a different rule prevails and one different from the rule in actions ex contractu. The effect of dismissing Hager was to relinquish the instant action against him only. Bloss v. Plymale, supra, 3 W.Va. 393, at page 404. Accord: U.S. v. Linn, 1 How. 104, 107, 108, 11 L.Ed. 64; Montgomery Gas-Light Co. v. Ry. Co., 85 Ala. 372, 5 So. 735, 736; Allen v. Craig, 13 N.J. Law, 294; Sloan v. Herrick, 49 Vt. 327; Thomas v. Hoffman, 22 Mich. 44; Matheson v. O'Kane, 211 Mass. 91, 96, 97 N.E. 638, 39 L.R.A.(N.S.) 475, Ann.Cas.1913B, 267; Ivanhoe Furnace Corp. v. Crowder's Adm'r, 110 Va. 387, 66 S.E. 63; annotation 58 L.R.A. 303 et seq.; 18 C.J. 1162; 7 Standard Ency. Procedure, 667. It will be noted that the above Alabama and Virginia citations, respectively, are cases against master and servant for the tort of the servant, in which the latter was dismissed without affecting the liability of the former.
In furnishing the car to Stokeley for his exclusive use, defendant apparently surrendered to him absolute authority over the car. If Stokeley directed Hager to take the car home-and the jury so found-defendant cannot escape the effect of Stokeley's apparent right to do so. Brightwell v. Simpson, 106 W.Va. 471, 475, 146 S.E. 383. Whether the means he employed to have Hager on hand when needed were the most practical is immaterial. Stokeley's express authority to hire a driver for repossessed cars included the right to exercise his discretion in procuring the driver.
Master and servant relationship is said to be incapable of accurate definition in general terms. Restatement, Agency, § 220. However, the relationship is commonly understood to arise when one person subordinately serves another, both consenting thereto. It does not Cooley, supra, § 383. Accord: Tompkins v. Ins. Co., 53 W.Va. 479, at page 492, 44 S.E. 439, 62 L.R.A. 489, 97 Am.St.Rep. 1006; Malcolm v. American Service Co. (W.Va.) 191 S.E 527, decided this term; 39 C.J., Master and Servant, §§ 1454-1456. The relationship may exist outside of actual working time. Goff v. Dairy Co., 86 W.Va. 237, 103 S.E. 58; International & G. N. Ry. Co. v. Ryan, 82 Tex. 565, 18 S.W. 219; Wilson v. Lumber Co., 108 La. 590, 32 So. 460; Bailey, Pers. Inj. (2d Ed.) § 26. In the latter case the relationship depends upon connection between the act in question and the employment. An act expected to contribute even indirectly to the service a person is ultimately to perform may be within the scope of his service. Kish v. California State Automobile Ass'n, 190 Cal. 246, 212 P. 27; Colley v. Lewis, 7 Ala.App. 593, 61 So. 37; Katz v. Wolff & Reinheimer, 129 Misc. 384, 221 N.Y.S. 476; Labatt, Master and Servant (2d Ed.) § 2277; Restatement, supra, § 228; the many authorities collated by Judge Riley in Meyn v. Auto Co. (W.Va.) 191 S.E. 558, decided at this term. And the master is answerable...
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