Dr. Pepper Bottling Co. of Kentucky v. Hazelip

• Decision Date: 06 November 1940
• Parties: DR. PEPPER BOTTLING CO. OF KENTUCKY et al. v. HAZELIP et al.
• Court: Kentucky Court of Appeals

144 S.W.2d 798

284 Ky. 333

DR. PEPPER BOTTLING CO. OF KENTUCKY et al. v. HAZELIP et al.

Court of Appeals of Kentucky

November 6, 1940

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.

Action by Damon C. Hazelip, Jr., suing by his grandfather and next friend, J. C. Bolton, against the Dr. Pepper Bottling Company of Kentucky and another, for injuries sustained by the plaintiff when he was struck by an automobile which was operated by defendant Hansford Yates. From an adverse judgment, the defendants appeal.

Judgment reversed as to defendant company and affirmed as to defendant Hansford Yates.

Lawrence S. Grauman and Selligman, Goldsmith, Everhart & Greenbaum all of Louisville, for appellants.

Charles W. Morris and Herman Cohen, both of Louisville, for appellee.

CAMMACK Justice.

The appellant, Hansford Yates, was a route salesman for the Dr Pepper Bottling Company, also an appellant, in August, 1938. He had been working for the Company in this capacity for about two years. He operated one of the Company's trucks over two routes in southern Indiana. The town of Corydon was on one of those routes. Yates worked six days a week, not including Sunday. He was paid on a commission basis with a guarantee of $25 per week, but usually made more than the guarantee. Yates sold the Company's products along his designated routes. On occasions a supervisor would accompany him and assist him in the handling of sales. These supervisors worked under the direction of officials of the Company. They supervised no special routes, but were assigned to certain routes from time to time.

On Sunday, August 21, 1938, Yates went to Corydon in his own car, and, at his request, Ernest Gibson, one of the Company's supervisors, went with him. There was to be a fair at Corydon. According to Yates' testimony, he would have made Corydon the next day. He said he decided to go over there on Sunday to see some of the persons who were going to operate stands at the fair about furnishing them some of the Company's products. He also said Monday was a heavy day and he usually got in late from that run. While Yates and Gibson were in Corydon they made arrangements with certain persons to furnish them some of the Company's products. Gibson delivered these products the next day.

Neither Yates' nor Gibson's duties required them to engage in the Company's business on Sunday, and at no time had Yates been authorized to use his own car in carrying on the Company's business. As indicated above, he was a route salesman, who sold the Company's products from one of the Company's trucks. He testified that on two occasions he had worked on Sunday. At one time, with the knowledge of his boss, he had gone to English, Indiana, in a Company truck to get some empty cases. On another occasion he had taken a load of bottled drinks to Lexington in a Company truck.

When Yates and Gibson reached Louisville around six o'clock in the afternoon, they started in the direction of Gibson's home, where they planned to have supper and then go to a picture show. Yates was driving his car east on Main Street just south of the center line. He testified that, as he was near the center of the intersection of Main and 17th Streets, Gibson hollered, "Watch that kid"; that he saw the child running across the street; that he jerked the wheels of his car to the left and applied the brakes; that he then straightened up the car in order to avoid striking the curb; that the right front fender struck the child; and that he stopped his car within 35 or 40 feet. He testified further that there were no cars coming along Main or 17th Street as he reached the intersection. Gibson testified that he saw the child leave the curbing just a little east of 17th Street and start running south across Main Street; that Yates' car was just entering 17th Street at that time; and that he judged the car was about 20 feet from the point where the child was struck (near the center of the street) when he first saw him. The testimony is that Main Street is 50 to 60 feet wide at the scene of the accident.

The injured child, Damon Carl Hazelip, Jr., was an infant under seven years at the time of the accident. This action was prosecuted by him through J. L. Bolton, his grandfather, as next friend. The trial resulted in a joint verdict against the Company and Yates for $1,200. This appeal is being prosecuted from a judgment on that verdict. The appellants have filed separate briefs.

Among the grounds urged for reversal by the Company is one to the effect that Yates had neither express nor implied authority to use his own automobile on the Sunday in question to transact any business for the Company, and the Company exercised no control over Yates and his automobile on that day, and that he was not acting within the scope of his authority. Being of the opinion that this position is well founded, we shall confine our discussion of the case as it relates to the Company to this ground.

Appellee insists that there was some evidence of probative value indicating that Yates was acting as the Company's agent on the day in question. He stresses these points: (1) Yates worked for the Company; (2) he was paid by the week, and the Company had the right to discharge him; (3) on the day of the accident he was engaged on a mission directly connected with the Company's business; (4) a route supervisor was with him; and (5) the Company ratified Yates' acts by having the supervisor finish the work begun by him on the day of the accident. Admittedly, the activities carried on by Yates on the Sunday in question may be looked upon as beneficial to the Company. He was out in search of new or additional business, and, according to his testimony, what he did on Sunday would have shortened his work on the following day. It must not be overlooked, however, that Yates was employed on a commission basis, and that Corydon, the town visited by him on Sunday, was on one of his regular routes. Under the circumstances he had a primary interest in the Sunday enterprise.

Cases of this type must be determined by their own peculiar facts and circumstances. To hold a master liable whenever a servant does something in his behalf would be an unreasonable rule. It is clear to us that the facts and circumstances concerning Yates' employment warrant the conclusion that he was not acting within the scope of his authority, either express or implied, on the Sunday in question. The fact that Gibson acted as Yates' superior at times does not alter the case. According to the testimony, Gibson made the trip to Corydon at Yates' suggestion. Nor can we agree with the appellee's contention that the delivering of the products to the parties in Corydon, who had been contacted by Yates and Gibson on Sunday, changes the situation. The Company was engaged in selling bottled goods and Corydon was on one of the regular routes. Had the trip not been made on Sunday, the same sales and deliveries might well have been made on the regular route day (Monday). It was not necessary for Yates to make the trip to Corydon on Sunday. He had not been instructed to make it. The trip was not within the line of his regular duties, and it was made without the Company's knowledge or consent. While it may be conceded, as indicated above, that the Company may have benefited from the trip, it is clear that Yates was not acting within the scope of...