Heintz v. Iowa Packing Co.

• Decision Date: 21 November 1936
• Docket Number: No. 43388.,43388.
• Citation: 268 N.W. 607,222 Iowa 517
• Parties: HEINTZ v. IOWA PACKING CO.
• Court: Iowa Supreme Court

222 Iowa 517

268 N.W. 607

HEINTZ

v.IOWA PACKING CO.

No. 43388.

Supreme Court of Iowa.

July 31, 1936.

As Amended on Overruling Petition for Rehearing Nov. 21, 1936.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Ann L. Heintz commences this action against the Iowa Packing Company to recover for injuries sustained by her in a collision between a Ford V-8 automobile, owned and driven by Frances Logsden, in which she was riding and a Ford V-8 automobile, owned and driven by R. T. Randolph, who was, plaintiff claimed, an employee of defendant company. There was a trial to a jury, which returned a verdict in favor of plaintiff Defendant has appealed. Opinion states the facts.

Affirmed.Hallagan, Fountain, Stewart & Cless, of Des Moines, for appellant.

Stephens & Wisdom, of Des Moines, and Carl Smedal, of Ames, for appellee.

MITCHELL, Justice.

On the morning of December 7, 1933, shortly before 8 o'clock, Ann L. Heintz was being driven by Frances Logsden from Nevada to Ames over the Lincoln Highway in a Ford V-8 Sedan. At a point about 1 1/4 miles east of Ames, the automobile in which they were riding was struck by a car driven by one R. T. Randolph, who, it is claimed, was traveling eastward upon the wrong or north side of the highway at a high rate of speed. The evidence shows the Logsden car was being operated at a reasonable rate of speed on the right or north side of the pavement. The collision occurred at the depression between two hills. The Randolph car suddenly appeared over the top of the hill, coming from the west, on the north or left-hand side of the road going east, and continued on the same side of the road to the point of the collision. Frances Logsden immediately, upon seeing the Randolph car approaching, put on the brakes and slowed down her car, pulling it over to the side of the pavement as far as she possibly could.

In this unfortunate accident Ann Heintz was injured and Mr. Randolph was so seriously injured that he died the next day.

There is no question raised on this appeal as to the cause of the accident or the negligence of Mr. Randolph. Further statement of the facts with reference to the happening of the accident is therefore unnecessary.

R. T. Randolph was employed by the Iowa Packing Company as a salesman, and had been so employed for better than a year prior to the accident.

Ann L. Heintz commenced this action against the Iowa Packing Company, the employer of Randolph, for damages. The case was submitted to a jury, which returned a verdict in favor of plaintiff, and from said judgment and verdict the Iowa Packing Company has appealed to this court.

There are but three questions raised on this appeal: First, that the lower court erred in not sustaining the motion of the defendant for a directed verdict, made at the close of the plaintiff's evidence; second, that the trial court erred in not sustaining the motion of the defendant for a directed verdict, made at the close of the submission of the evidence; third, and lastly, that the trial court erred in overruling motion for a new trial, which was made upon the grounds of newly discovered evidence.

In the order named we shall take up the questions raised.

[1] I. A. It must be kept in mind that it is the well-established law of this state that defendant's motion to direct a verdict admits the truth of plaintiff's evidence, and every inference reasonably permissive therefrom. The court, in ruling on a motion to direct, by defendant, must consider plaintiff's evidence in the most favorable light and with the strongest inferences reasonably deductible therefrom, in plaintiff's favor. McWilliams v. Beck, 220 Iowa, 906, 262 N.W. 781;White v. Center, 218 Iowa, 1027, 254 N.W. 90.

It is the claim of the appellant that the lower court should have directed a verdict at the close of appellee's testimony because there was no evidence of the employment of Randolph at the time and place of the accident involved in this controversy, and that the burden of proof was upon the appellee affirmatively to establish and show that Randolph was an employee of the appellant, and that the relationship of master and servant existed at the time and place of the accident involved herein.

To ascertain the facts we must turn to the record.

Randolph was employed by the Iowa Packing Company in March of 1932 as a car-route salesman. A car-route salesman is one who calls on customers or dealers outside of Des Moines, and the Packing Company had 28 or 29 car-route districts or territories in Iowa in 1933. Randolph had demonstrated considerable ability as a salesman, and was used by the company as a specialty man, traveling various car-route territories in Iowa, Illinois, and Missouri. He received his instructions on Saturday of each week from the car-route sales manager at the plant in Des Moines. The routes were numbered and there was a headquarter city for each one. Fort Dodge was the headquarter city for route No. 18, and Marshalltown for route No. 19. On December 2, 1933, the Saturday preceding the accident, Randolph, as usual, went to the office of the appellant company in the city of Des Moines and received instructions from his superior officer. These instructions were partly oral and partly written. It is the claim of the Packing Company that on that day Randolph was instructed to proceed to Fort Dodge to spend the first three days of that week in the promotion of a soap compaign which the company was waging; that he was directed to meet a Mr. Sampson, who was the representative of the appellant company in the territory known as route No. 19, at Waterloo, on the morning of Thursday, December the 7th; that Randolph did proceed to Fort Dodge, driving in his own personal car, and spent the first three days of the week in that city; that he left Fort Dodge on the evening of December the 6th and drove south and west to the town of Jefferson, where he stayed that night; that he had no authority to go to Jefferson and no business of the company to attend to in that city; that he left Jefferson on the morning of December 7th some time around 6 o'clock and was proceeding eastward at the time that the collision occurred;that Randolph had been an employee of the appellant company and as such he had received definite instructions as to what he was to do, when he was to do it, and where he was to work; that at the time and place of the accident he had no business whatever for the company and was approximately 100 miles from the place he had been ordered to be, one hour prior to the time of this accident; and that, therefore, at the time of the accident, he was not in the employ of the appellant company.

There were introduced in evidence copies of two letters, one of which was written to Mr. Weeks, the representative of the company at Fort Dodge, and the other written to Mr. Sampson, the representative at Marshalltown. There is also evidence that copies of these letters were given to Mr. Randolph. The letter to Mr. Weeks informed him that Randolph would spend the first three days at Fort Dodge, working in the soap campaign. The letter to Mr. Sampson asked him to meet Randolph at Waterloo on the morning of December 7th. There is also evidence that Randolph was assigned to routes 18 and 19 for the week commencing December 4th. Route 18 consisted of the territory surrounding Fort Dodge, with headquarters in that city, with Mr. Weeks in charge; route 19 consisted of the territory around Waterloo, with headquarters at Marshalltown, with Mr. Sampson in charge. There is also evidence that shortly after the accident Randolph was interviewed in the hospital and told the sheriff that he was on his way to Marshalltown. It is the contention of the appellant that Randolph was specially assigned for Thursday morning, December 7th, at Waterloo, and that he left the employment of the company when he proceeded to Jefferson, which was south and west of Fort Dodge and in the opposite direction from Waterloo, where he was to work on Thursday morning according to appellant's claim. However, there is in the record the assignment sheet showing assignment of the various car-route salesmen for the week of December 4th, and Randolph is listed for routes 18 and 19. At the time of the accident he was proceeding to Marshalltown, which was the headquarter city of route 19.

[2] A review of this record shows that Randolph was employed by the appellant company; that he was employed by the week; that his assignment was by the week; that the accident happened during regular working hours. There is a conflict in the testimony as to whether he was assigned to routes 18 and 19 for the week of December 4th, or whether he had a special assignment on the morning of December 7th. It was therefore a question for the jury to decide, and the trial court did not err in overruling the motion for directed verdict.

B. Appellant contends that the trial court erred in overruling grounds 7 and 10 of appellant's motion for a directed verdict, which are as follows:

“7. That the plaintiff has failed to discharge the burden of proving that the automobile involved in the accident and owned and driven by the said R. T. Randolph was so driven by him with the consent, knowledge, or permission of the defendant, and that the evidence is affirmative and without contradiction to the contrary.

10. The plaintiff's evidence affirmatively shows that there was no general authority extended to the said R. T. Randolph by the defendant to use and operate his automobile in their service, and the evidence, to the contrary, reveals that the same was not used except upon express authorization, and that no such authorization is shown by the plaintiff's evidence.”

The appellant company furnished its own cars to its route salesmen for use by them in the furtherance of the company's business. Its salesmen also traveled by train and by bus. Randolph was not furnished a car by the company, and there is no evidence that...