Gable v. Bingler

• Citation: 15 S.E.2d 33
• Parties: GABLE. v. BINGLER.
• Decision Date: 09 June 1941
• Court: Supreme Court of Virginia

15 S.E.2d 33

GABLE.

v.BINGLER.

Supreme Court of Appeals of Virginia.

June 9, 1941.

Error to Corporation Court of Charlottesville; A. D. Dabney, Judge.

Action by W. R. Bingler against Florence R. Gable and others for injuries sustained by plaintiff when struck by anautomobile driven by an alleged employee of named defendant while working on one of the gasoline pumps in an automobile service station owned by the named defendant. To review a judgment for plaintiff, the named defendant alone brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, EG-GLESTON, and SPRATLEY, JJ.

Perkins, Battle & Minor, of Charlottesville, for plaintiff in error.

C. Armonde Paxson, of Charlottesville, for defendant in error.

GREGORY, Justice.

This proceeding brings before us the correctness of a judgment of the trial court rendered in favor of W. R. Bingler, plaintiff, against Florence R. Gable and Willard E. Jameson, master and servant, respectively, for $10,000. Willard E. Jameson did not apply for a writ of error and as to him the judgment is final. Mrs. Gable is the sole plaintiff in error.

Mrs. Gable was operating an automobile service station under the style of California Oil Service in Charlottesville, Virginia. Bingler was a plumber by trade and was working on one of the gasoline pumps in the station when he was struck by an automobile driven by Willard E. Jameson, the other defendant below. The injuries to Bingler were painful and serious and of a permanent nature. The accident occurred around 10 o'clock in the morning of March 3, 1939.

One T C. Ritchie, a customer of the service station and a partner in the firm of Ritchie Electric Company, was driving the firm's car near the service station and ran out of gosoline. He left the car in the street and walked to the station and announced that his gasoline tank was empty. Willard E. Jameson took a can of gasoline to the car, poured it into the tank, and drove the car into the station. He attempted to place his foot upon the brake to slow down as he entered the station but through inadvertence placed his foot on the accelerator. This caused the car to increase its speed, and Bingler, who was working on the pump, was struck without warning and injured. After striking Bingler the car proceeded some distance, striking and knocking over a steel light pole before it came to rest.

Bingler instituted his action for damages against Willard E. Jameson, Florence R. Gable, and T. C. Ritchie in his own right and as partner of Ritchie Electric Company. It was alleged that Willard E. Jameson was the servant of Mrs. Gable, and acting in the course of his employment at the time of the accident. She denied that the relation of master and servant existed at the time.

The court struck the plaintiff's evidence as to Ritchie and his company at its conclusion and they were dropped as defendants. This action of the court was not made the subject of any cross-error on the part of Bingler and consequently is not now a question for us to consider. The case was submitted to the jury and it found a verdict in favor of Bingler against Mrs. Gable, the master, but was silent as to Willard E. Jameson, the alleged servant and remaining defendant. The verdict was expressed thus: "We the jury find for the plaintiff and fix his damages at $10,000 against the defendant, Florence M. Gable, trading as the California Oil Service."

The judge of the trial court, before the verdict was received, inquired of counsel representing both sides, "Is the form of the verdict satisfactory to you gentlemen?" There being no response the verdict was accepted by the court and the jury was discharged.

Counsel for the defendant, Mrs. Gable, moved to set the verdict aside. Counsel for the plaintiff moved that a judgment be entered against the co-defendant, Willard E. Jameson.

It is conceded in the case that Willard E. Jameson, the driver of the car, was guilty of negligence and that the plaintiff should recover against him. In the petition for the writ of error counsel for Mrs. Gable observe: "There is little question about the negligence of Willard E. Jameson, or the right of plaintiff to recover against him." In addition to this, the evidence established beyond doubt his negligence and the right of Bingler to recover against him.

After mature consideration the trial court overruled the motion of the defendant, Mrs. Gable, and entered judgment on the verdict against her. It sustained the motion of the plaintiff, Bingler, and entered judgment against Willard E. Jameson.

The main issue in this case is whether or not Willard E. Jameson was acting as the servant of Mrs. Gable at the time of the accident. Her counsel argued on this point that the evidence "is far from satisfactory. Every witness introduced was contradicted in some important particular." Upon our review of the case we are only interested in whether there was sufficient evidence of the existence of the relation of master and servant at the time to carry that issue to the jury.

E. C. Jameson, who was then the manager of the service station, testified that Willard E. Jameson was employed at the station at the time of the accident. Willard testified to the same effect. Both, however, had given prior statements that were in conflict with their sworn testimony. These contradictory statements were before the jury, admitted to test their credibility. Several other witnesses testified that Willard was an employee of the service station on the day of the accident. Mrs. Gable testified that he was her employee on weekends and for extra work when expressly employed by her, but on this occasion was not working for her. The testimony was in conflict, but when that offered by the plaintiff is considered, we are forced to conclude that there was sufficient evidence to carry to the jury the issue of whether or not Willard E. Jameson was an employee of Mrs. Gable at the time Bingler received his injuries.

Counsel for Mrs. Gable offered instruction E. It was in the following language: "The Court instructs you that if you believe from the evidence that Omo-hundro, the employee of the defendant, Florence R. Gable, had no authority from Florence R. Gable to employ assistants at the filling station, then the said Florence R. Gable cannot be held liable for the negligence of one whom Omohundro may have, by express request or implication, without the knowledge or consent of Mrs. Gable, secured to render services for a customer at the station."

The court amended the instruction by the addition of these words: "But if you believe that Willard E. Jameson took the gasoline from Omohundro or from the premises, with his consent, or with the consent of E. C. Jameson, to put it in the Ritchie car, in order to drive it to the station, then Willard E. Jameson was acting as agent for Mrs. Gable." Counsel did not accept the amendment and withdrew the instruction.

It was contended below and here that the instruction as offered should have been given. The theory of the defendant was that Willard E. Jameson was at the station but was not employed at the time; that if Omohundro, a regular employee but without authority to engage other employees, either expressly or impliedly directed Willard E. Jameson to take the gasoline to the Ritchie car, pour it into the tank and drive it into the station to be serviced, then Willard's negligent conduct could not be charged to Mrs. Gable.

If the evidence had been limited to that single proposition, the instruction as offered might have been proper. However, the instruction leaves from consideration the evidence of several witnesses who testified that Willard was an employee of the service station that day. If Willard were an employee on that day and he carried the gasoline to the Ritchie car and negligently drove it into the station, it makes no difference whether or not Omohundro or E. C. Jameson directed him to take the gasoline to the car. He may have taken it of his own volition. If he were engaged at the time as a filling station attendant for Mrs. Gable and performing the usual duties of one similarly employed, acting within the scope of his employment, as the plaintiff's evidence tends to show, Mrs. Gable would be liable for the injuries to Bingler negligently inflicted by Willard.

On the motion of counsel for Mrs. Gable the court gave instructions B, C, and D. All of them embraced the direction that, if Willard were not a servant or employee of Mrs. Gable at the time, then no verdict could be found against her. The jury were fully and fairly instructed on this point and the failure to grant instruction E as offered was not error.

Objection was made to this language used by counsel for Bingler in his closing argument: "Gentlemen of the jury, you give me the judgment and I'll guarantee it will not ruin Mrs. Gable; I'll guarantee it will not hurt Mrs. Gable."

E. C. Jameson, who had been the manager of the filling station, was discharged by Mrs. Gable after the accident. One Miller testified that E. C. Jameson had threatened to ruin Mrs. Gable. Counsel for Mrs. Gable in his argument to the jury said, "You have heard what Jameson told Mr. Miller about ruining Mrs. Gable and you now see him here attempting to carry out his threat. He said he would do everything he could to ruin her. I don't believe you gentlemen are going to let the Jamesons get away with it." It was in answer to this argument that counsel for the plaintiff stated to the jury in substance that Mrs. Gable would not be hurt by a verdict against her.

The court observed that the argument was improper and at its close the court gave counsel for Mrs. Gable an opportunity to move for a mistrial. Counsel stated that he would like to consider the matter until after lunch. When court reconvened the court inquired of counsel if he desired to make a motion, to which counsel replied in the negative.

Under these circumstances the assignment founded on the improper argument of counsel for the...