Emma Ronan v. J. G. Turnbull Co.

• Citation: 131 A. 788,99 Vt. 280
• Parties: EMMA RONAN v. J. G. TURNBULL COMPANY ET AL
• Decision Date: 09 January 1926
• Court: United States State Supreme Court of Vermont

131 A. 788

99 Vt. 280

EMMA RONAN v. J. G. TURNBULL COMPANY ET AL

Supreme Court of Vermont

January 9, 1926

April 1925.

ACTION OF TORT for personal injuries received in automobile collision. Plea, general issue. Trial by jury at the June Term, 1924, Caledonia County, Chase, J., presiding. Verdict directed for defendant company, and verdict found by jury against individual defendant, and judgment on verdicts. The plaintiff excepted to direction of verdict for defendant company and entry of judgment thereon. The defendant Stannard excepted to verdict against him and entry of judgment thereon. The opinion states the case.

Judgment for defendant J. G. Turnbull Company is affirmed; judgment against defendant Harry J. Stannard is reversed, and cause remanded.

Searles & Graves for the plaintiff.

Porter Witters & Longmoore for the defendants.

Present POWERS, TAYLOR, SLACK, and BUTLER, JJ., and GRAHAM, Supr. J.

OPINION

GRAHAM

This action was brought against J. G. Turnbull Company and Harry J. Stannard to recover damages for personal injuries sustained by the plaintiff, on October 27, 1923, when, on account of the alleged negligence of Stannard, an automobile owned by the Turnbull Company, and driven by Stannard, collided with an automobile driven by Kenneth Daniels, and in which at the time the plaintiff was riding on the rear seat. The accident occurred on the main road from Barton to Orleans, and between one and two miles north of Barton.

At the close of the plaintiff's evidence the defendant J. G. Turnbull Company rested, and moved that a verdict be directed in its favor on the grounds: That there was no evidence tending to show any liability of any character whatever on the part of this defendant; that there was no evidence of negligence on the part of the defendant corporation; that the evidence stood undisputed that defendant Stannard at the time of the accident was not in the employ of the defendant corporation, but was engaged exclusively in his own affairs; and that according to the undisputed evidence he was in no sense the agent of the defendant corporation, and for none of his acts on the occasion of the accident is the defendant corporation liable. This motion was granted and a verdict directed for the defendant Turnbull Company, and the plaintiff was allowed an exception. The case proceeded against defendant Stannard, and resulted in a verdict for the plaintiff. Judgment was rendered on both verdicts, and exceptions saved. The case is here on the exceptions of both parties.

We will first take up the plaintiff's exceptions. The only question here presented for review is whether the court erred in directing a verdict for J. G. Turnbull Company. No claim is made but that there was sufficient evidence from which the jury could find that at the time of the collision the plaintiff was in the exercise of due care, that Stannard was negligent, and that his negligence was the proximate cause of the plaintiff's injuries, and so we are to consider only whether there was sufficient evidence to take the case to the jury tending to show that, at the time of the acts complained of, Stannard was the servant of the Turnbull Company and acting in the furtherance of its business and within the scope of his employment.

The general rule within which the plaintiff must bring her proof, in order to establish liability on the part of this defendant, is stated in Gutzwiller v. American Tobacco Company, 97 Vt. 281, at page 284, 122 A. 586, 588, as follows: "In order to hold a master liable for the acts of his servant, it must appear that the act complained of was done to carry out the directions of the master, express or implied, and not to effect some purpose of the servant alone; or, in other words, that the act was done in the furtherance of the master's business and within the scope of the servant's employment." The same rule is stated and applied in Ploof v. Putnam, 83 Vt. 252, 75 A. 277, 26 L.R.A. (N.S.) 251, 138 Am. St. Rep. 1085; Greenough v. United States Life Insurance Co., 96 Vt. 47, 117 A. 332.

The evidence must be viewed in the light most favorable to the plaintiff. Strong & Jarvis v. Oldsmobile Company of Vermont, 96 Vt. 355, 120 A. 100; Capital Garage Co. v. Powell, 96 Vt. 227, 118 A. 883. If there was any substantial evidence fairly and reasonably tending to support the essential facts of the plaintiff's claims, the case was for the jury. Cummings, Admr. v. Town of Cambridge, 93 Vt. 349, 107 A. 114; Partridge v. Cole, 96 Vt. 281, 119 A. 398, 32 A. L. R. 854; Wellman v. Wales, 98 Vt. 437, 129 A. 317.

The only evidence adduced at the trial as to the relationship existing between the Turnbull Company and Stannard at the time of the acts complained of is contained in the testimony of Stannard, who was called as a witness by the plaintiff and without objection cross-examined as an adverse party. Stannard's testimony tended to establish these facts: That he was clerk of the defendant corporation, and had been for two or three years; that he was not a stockholder or otherwise financially interested in the company; that he was employed on a weekly salary, and practically all of his time was spent working in the office, having control of the keeping of the books, and, in the absence of Mr. Turnbull, he had charge of the office in minor affairs; his employment also required him to travel about the country, more or less, taking the place of a salesman in the soliciting of orders and making collections; he had solicited business in Barton, and probably had made collections there, and the company had accounts pending in Barton at the time of the accident. Just prior to October 27, 1923, Stannard had been absent from Orleans for two weeks, and on business for the company, but not using any of its automobiles; during the forenoon of October 27, he was engaged with his duties in the company's office, all of the other officers of the company being absent that day. The creamery plant of the company was closed during the afternoon of that day, but the office was kept open by one of the girl employees. Stannard left the office a little before noon and took no papers of the company's with him; soon after dinner he went to the garage where the Turnbull Company kept a Chevrolet Coupe, owned by it and regularly used in its business, and being the one which Stannard used in the company's business more than any of its other cars; accompanied by his wife he drove the car from the garage to the cemetery at Orleans, where Mrs. Stannard planted some bulbs on a burial lot; they then proceeded with the car toward Barton for the purpose of planting bulbs on the family lot in the cemetery at Barton village, and had reached a point between one and two miles north of that village when the acts complained of occurred. After some delay caused by the accident, Stannard and his wife continued their journey to Barton and to the cemetery and thence back to Orleans the same day. On the door of this car driven by Stannard were the words, "Turnbull's Green Mountain Ice Cream." While at Barton, Stannard stopped the car in front of Pierce's Drug Store and went into that store, but did not recall having conversation with anybody there.

Stannard also testified, without objection, that the Turnbull Company had paid for the repairs to the car he was driving, but that it was "up to him to pay," and also that he had employed no counsel in the case.

It appeared that the same evening of the accident, Stannard made a report of it to the Secretary of State, and that, in making this report, he was assisted by Mr. Harry Dickens. One of the questions in this report was: "Was your car being operated for business or pleasure?" And the answer was, "Business." The exceptions show that the evidence of Stannard as to his report to the Secretary of State including the report itself was limited to defendant Stannard, but the plaintiff claims that all of Stannard's testimony on this point was not so limited. By stipulation the transcript is referred to and made controlling on this question.

When this subject was first introduced, upon objection being made, the court ruled that it was limited to impeachment purposes, as affecting the witness Stannard, and confined its ruling to the pending question. Later the witness was asked this question: "In your report to the Secretary of State you did state, did you not, that you were engaged at the time the accident happened in business?" and after objection was made, and the court had ruled that this particular occasion, this talk was limited to defendant Stannard, the question was withdrawn, but the court then said: "Well, the question is withdrawn, but this particular talk--but the talk upon this occasion with Dickens had by the witness may all be limited"; and the examination proceeded as follows: "Q. Mr. Stannard, when you filled out your report to the Secretary of State, the following was one of the questions that you answered, wasn't it, Was your car being operated for business or pleasure?' A. Yes sir; Q. And your answer was, 'Business,' wasn't it? A. After consultation--Q. Answer that question: A. Yes; Q. Your answer was, 'Business?'; A. Yes, the answer put on the paper was Business.' Q. And you signed this report? A. I did."

Later in the examination of Stannard the following testimony was given, and without objection being noted: "Q. And, Mr. Stannard, in view of your testimony now, after this suit is brought, that you went down there for the sole purpose of planting bulbs on your family lot in the cemetery, on the night following the accident, in answer to the question 'Was your car being operated for business or pleasure,' your answer was 'Business,' that is true, isn't it? A. Yes."

Also the following: "Q. ...