Great American Tea Co. v. Van Buren

• Decision Date: 30 April 1941
• Docket Number: 27523.
• Citation: 33 N.E.2d 580,218 Ind. 462
• Parties: GREAT AMERICAN TEA CO. v. VAN BUREN et al.
• Court: Indiana Supreme Court

33 N.E.2d 580

218 Ind. 462

GREAT AMERICAN TEA CO. v. VAN BUREN et al.

No. 27523.

Supreme Court of Indiana

April 30, 1941

Appeal from Superior Court, Elkhart County; William E. Wider, judge.

Hemphling & Smith, of South Bend, for appellant.

Harry Taylor and Benjamin Piser, both of South Bend, for appellees.

SHAKE Judge.

The appellee Juanita Van Buren recovered a judgment in damages for personal injuries against her co-appellee Alt and the appellant growing out of the negligent operation of a motor vehicle belonging to the appellant and driven by Alt.

The only error assigned is predicated upon the denial of the appellant's motion for a new trial, which challenged the sufficiency of the evidence to sustain the verdict. It is contended that there was no proof that Alt was the agent of the appellant, and that if such agency was established there was no showing that he was acting within the scope of his employment when the injuries were inflicted. This requires us to review the evidence, but we will not weigh it; nor will we disturb the judgment if the evidence disclosed by the record is sufficient to support a legitimate inference of the essential facts.

The appellant is a corporation engaged in the business of selling tea, coffee, and other merchandise directly to consumers. It maintained a branch office in charge of a sales manager at Fort Wayne, from which its business in parts of Ohio Indiana and Michigan was conducted. It also had a salesroom at South Bend, out of which worked a route foreman, who resided at Mishawaka, and a development manager, who lived at Fort Wayne.

On August 15, 1938, the appellee Alt, who resided with his parents on a farm in Elkhart County, entered into a written contract with the appellant by which he was employed as a service salesman on a commission basis. Alt was assigned certain retail routes in Elkhart and Goshen and between said cities. It was his duty to solicit orders for merchandise and make deliveries and collections for business done in his territory. He was furnished a motor truck which bore the words 'The Great American Ter Company' and which he kept at his home while it was not in use. He was forbidden by the terms of his contract from utilizing the truck for personal or private purposes.

On July 11, 1939, Alt covered one of his routes in company with his foreman. The parties talked, as they had done before, about the possibility of Alt obtaining a position in the promotional department and he was told by the foreman that he might discuss that matter with the development manager at the South Bend office in the morning or evening. Alt testified that when they returned to his home on the evening of the 11th he was 'relieved' of his route and that it was taken over by the foreman, but that the truck was left with him and he was not told that he could not drive it or make further deliveries or collections. On the 12th, the foreman drove the route, returning the truck to Alt's home in the evening, and Alt did not work for the company on that day but on the next day Alt took the truck out on his route about noon and carried on his work as usual until approximately 6:30 o'clock in the evening. At that time he was in Elkhart and he parked the truck on the street and worked on his books. He then started home but changed...