Hawthorne v. Eckerson Co.

• Decision Date: 03 June 1935
• Docket Number: No. 401.,401.
• Citation: 77 F.2d 844
• Parties: HAWTHORNE v. ECKERSON CO.
• Court: U.S. Court of Appeals — Second Circuit

77 F.2d 844 (1935)

HAWTHORNE v. ECKERSON CO.

No. 401.

Circuit Court of Appeals, Second Circuit.

June 3, 1935.

Clayton H. Kinney, of Rutland, Vt., for appellant.

Novak & Bloomer, of Rutland, Vt., for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff was driving her own Marquette automobile and was accompanied by one Addie O. Kellogg, her partner in an antique furniture business, who was sitting in the driver's seat with her. As the car was rounding a curve in the highway leading from Middlebury to Brandon, Vt., it collided with a Chevrolet automobile belonging to the defendant Eckerson Company, and driven by A. J. Gassett, of Burlington, Vt., one of its traveling salesmen. The plaintiff and Miss Kellogg were both injured and the Marquette car was damaged to the extent of about $125. The plaintiff testified that when rounding the curve she kept well to the inside of the road and was driving at a speed of only 18 miles per hour. She also showed that Gassett came around the curve at a speed of 40 miles an hour, did not keep the Chevrolet on his side of the road, but had come over to her side, and that because of this the collision occurred. After the plaintiff had put in her case the defendant rested without introducing any proof. Thereupon the court charged the jury that it was to find: (1) Whether the plaintiff had proved that Gassett was in the employ of the defendant and performing some duty pertaining to his employment at the time of the collision; (2) whether, if it found such to be the case, the collision was caused by the defendant's negligence; (3) in the event that (1) and (2) were resolved against the defendant, what were the plaintiff's damages? The jury returned a verdict of $4,664.51 for the plaintiff, and from the judgment entered thereon this appeal was taken.

The errors relied on are:

(a) That the court improperly allowed the jury to find that Gassett was acting as defendant's agent at the time of the collision because he was in the general employment of the defendant and was driving its car.

(b) That the court unlawfully permitted the plaintiff to prove a settlement by the defendant with Miss Kellogg of her claim for injuries arising out of the accident in the present case.

While there are various other assignments of error, there is nothing of substance other than (a) and (b).

In many jurisdictions it is held that in an action for injuries due to collision by an automobile, proof that at the time of the accident the car was owned by the defendant establishes a prima facie case for the plaintiff. Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534; D'Aleria v. Shirey, 286 F. 523 (C. C. A. 9); Foundation Co. v. Henderson (C. C. A.) 264 F. 483; Benn v. Forrest, 213 F. 763 (C. C. A. 1); Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161; Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238; Tischler v. Steinholtz, 99 N. J. Law, 149, 122 A. 880; Gehloff v. DeMarce, 204 Wis. 464, 234 N. W. 717. It is unnecessary for us to say whether mere proof of ownership of a colliding car constitutes a prima facie case and requires a defendant who wishes to escape liability to go forward with evidence that the driver was not engaged in the defendant's business at the time of the accident. There are decisions, including that of Ronan v. J. G. Turnbull Co., 99 Vt. 280, 131 A. 788, that proof of ownership of the car and of general employment of the driver by the defendant is insufficient to justify an inference of agency. But, in any event, it seems clear that, where the car is shown to belong to the defendant and the driver to be a person accustomed to drive it on the defendant's business, there is enough to require the latter to meet the natural inference that at the time of the accident the driver was acting as agent — in other words, in the usual way.

The decision in Ronan v. J. G. Turnbull Co., 99 Vt. 280, 131 A. 788, is relied on by the defendant-appellant as showing that the evidence in the case at bar did not justify a finding that the driver was acting as the owner's agent when the accident occurred. But that decision is far from holding that proof that the driver of a defendant's car, who is not only an employee but is accustomed to drive it on the defendant's business, will not justify the inference that he was engaged in that business at the time when an accident has happened, unless there is some reason to suppose that he was not then so engaged. In the Ronan Case the only evidence (aside from proof of ownership, of employment of the driver, and of his occasional use of the car, when collecting the defendant's bills) was that the driver was engaged in his own business at the time when the accident occurred. That decision seems to us to have no bearing on the facts before us here. Whatever may be the scope of Ronan v. J. G. Turnbull Co., 99 Vt. 280, 131 A. 788, we think that it does not go far enough to preclude the inference that Gassett was engaged in the defendant's business at the time when the plaintiff suffered her injuries. The proof shows not only that the car belonged to the defendant and that Gassett was in its employ as a traveling salesman, but also that he was accustomed to drive the car when traveling on the defendant's business in the sale of its merchandise and that this practice extended to the general neighborhood where the collision occurred and had existed for a long period before the accident and had continued thereafter. Such proof, when unexplained, gives rise to an inevitable inference that Gassett was acting as the defendant's agent.

There is no reason to suppose that the Vermont law is not in accord with what we believe to be the general rule applicable to the case at bar. But, in any event, we are not bound to follow the rules of evidence of the state in which the trial was had, Mass. Bonding & Ins. Co. v. Norwich Pharmacal Co., 18 F.(2d) 934, 939 (C. C. A. 2); Pariso v. Towse (C. C. A.) 45 F.(2d) 962, 964, and we feel no doubt that, under general principles, the trial judge was right in treating proof of ownership of the car and Gassett's practice of doing business therewith as defendant's traveling salesman as a basis for the inference that he was acting as defendant's agent at the time of the collision.

Inasmuch as there was uncontradicted testimony that the car was the defendant's, that Gassett was its traveling salesman and was accustomed to drive the car while on its business, nothing further was necessary to show prima facie that Gassett was acting for the defendant. There was also uncontradicted evidence that Gassett, when rounding the curve on the road to Middlebury, did not keep on his side of the middle of the highway and that the plaintiff kept as far over on her side as was practicable. Upon such a record there was no question for the jury except that of damages.

The defendant complains because the court permitted the plaintiff to prove the settlement with Miss Kellogg, both in order to show that Gassett was its agent and also to show liability. We think the rulings in this respect were erroneous. Compromises are not in themselves evidence as admissions of liability, and the same rule applies when they are offered as proof of agency. Wigmore on Evidence, § 1061; Wigmore, Supp. (1934) p. 460; West v. Smith, 101 U. S. 263, 273, 25 L. Ed. 809; Paster v. Pa. R. R. (C. C. A.) 43 F.(2d) 908; Ross v. Fishtine, 277 Mass. 87, 177 N. E. 811; Fulton Iron & E. Works v. Kimball Tp., 52 Mich. 146, 17 N. W. 733; Georgia Ry. & Electric Co. v. Wallace & Co., 122 Ga. 547, 50 S. E. 478; State v. Campbell, 129 Iowa, 154, 105 N. W. 395; Powers' Adm'r v. Wiley, 241 Ky. 645, 44 S.W.(2d) 591; Nadler v. Willen (Sup.) 190 N. Y. S. 577. It is a quite different matter to allow in evidence independent statements contained in offers of settlement as admission of liability. West v. Smith, 101 U. S. 263, 25 L. Ed. 809; Hall v. Sera, 112 Conn. 291, 152 A. 148.

Since, irrespective of any inference arising from the agreement of settlement, there was uncontroverted proof that Gassett was the agent of the defendant, it may be argued that the error in admitting evidence of the compromise was not prejudicial, for the judge charged the jury that the plaintiff could only recover compensatory damages for her personal loss and injuries. But in the course of the testimony as to the settlement, proof was elicited at the suggestion of the court itself, that Miss Kellogg had received $4,750 in payment of her claim. Such evidence might have led the jury to allow the plaintiff a recovery equivalent to that of Miss Kellogg, the other occupant of the car. It is true that the testimony was only admitted on the theory that such a substantial payment as $4,750 would not have been made merely to buy peace and that the making of it, therefore, justified the inference that Gassett was the agent of defendant and that the latter was responsible for his acts. But the evidence was legally inadmissible to prove agency, and we cannot say that knowledge by the jury of the amount paid to Miss...