Hoffman v. Roehl

• Decision Date: 14 November 1921
• Docket Number: 4445.
• Citation: 203 P. 349,61 Mont. 290
• Parties: HOFFMAN v. ROEHL ET AL.
• Court: Montana Supreme Court

203 P. 349

61 Mont. 290

HOFFMAN v. ROEHL ET AL.

No. 4445.

Supreme Court of Montana

November 14, 1921

Rehearing Denied Jan. 6, 1922.

Appeal from District Court, Fergus County; Jack Briscoe, Judge.

Action by Peter Hoffman against E. R. Roehl and another. From judgment for plaintiff and overruling defendants' motion for a new trial, defendant Roehl appeals. Judgment and order affirmed.

Gunn Rasch & Hall, of Helena, and Belden & De Kalb, of Lewistown for appellant.

E. K Cheadle, of Lewistown, and Wheeler & Baldwin, of Butte, for respondent.

GALEN J.

This is an action for damages on account of personal injuries sustained by the plaintiff by reason of having been run into by a Ford automobile belonging to the defendant E. R. Roehl driven at the time on Main street, in the city of Lewistown, by one Martha Bean, the daughter of Daniel Bean; the latter at the time having been negotiating with Roehl for the purchase of the car. E. R. Roehl and Joseph Leedy, employee, were jointly made defendants. It appears that Daniel Bean wanted to buy a Ford automobile and approached the defendant Roehl, an automobile dealer in Lewistown, and inquired whether he had any bargains in Ford cars. Roehl replied that he had one which he would sell for $250, but that the engine had to be overhauled and the motor cleaned. Bean told Roehl to have the work done, "prove that the car would run up hill," and he would buy it. Three or four days subsequently, on November 21, 1916, Bean visited Roehl's place of business and Roehl then and there said to Bean that the car was cleaned and in readiness to make a "go out." Bean asked Roehl who he would send out with the car, to which he replied: "Joe Leedy." At the time Roehl was in his office, and Bean went therefrom into the workroom adjoining, and upon inquiry found Joe Leedy. Leedy cranked the car and both Leedy and Bean got into the car and went away. At Bean's suggestion, Leedy drove the car to Bean's residence, several blocks distant from the starting point, in order that Bean might show it to his wife and daughter. After arriving at Bean's house, his wife and daughter came out and looked at the car. His daughter Martha, was accompanied by a friend, Miss Christopher, and both had their hats and wraps on, as Martha was intending to go across town to Judith Place, in order to make delivery of a dress to a lady for whom she had made the same. Bean invited the girls to get into the car and requested Leedy to let Martha drive, saying: "She will be my chauffeur if I get it, so let her be the first to run it." Martha got in, took the wheel, and Leedy sat in the front seat alongside of her; Mr. Bean and Miss Christopher getting into the rear seat. The car was then driven by Martha across town to Mrs. Taft's residence, where she stopped the car and made delivery of the dress. She then started the car again and proceeded up Main street to the intersection of Fourth avenue, where traffic was greatly congested. At or near that point a speedy motorcycle caused two men to jump out of its way and into the path of the car driven by Miss Bean, in consequence whereof she lost control of the car and Leedy grabbed hold of the wheel, and the car was steered upon the sidewalk, striking and seriously injuring the plaintiff. Leedy testified:

"I have resided in Lewistown, Mont., since January, 1914, continuously. On the 21st day of November, 1916, I had been engaged in the automobile business as an employee of E. R. Roehl since January, 1914. I saw Daniel Bean for the first time on November 21, 1916. On said date I took a certain Ford automobile from the garage of E. R. Roehl, at Lewistown, Mont., for the purpose of exhibiting or demonstrating the car to the said Daniel Bean, at the direction of Mr. Roehl. I first met Martha Bean on that day."

At that time the plaintiff was employed by the Chicago, Milwaukee & St. Paul Railroad, as an engineer, and was earning from $150 to $175 per month. He was in good physical condition, 35 years of age, and married.

Issue being joined, the cause was tried to a jury and resulted in a verdict and judgment against the defendant Roehl in favor of the plaintiff for the sum of $16,800. At the close of plaintiff's case, the defendant Roehl moved for a directed verdict, which motion was denied, and the case went to the jury without any evidence being offered in defense. Appeal is prosecuted by the defendant Roehl from the judgment and order overruling defendant's motion for a new trial.

Several errors are assigned, involving but one principal question, solution of which is determinative of the case, viz.: The liability of the defendant Roehl for damages on account of plaintiff's injuries, in application of the doctrine of respondeat superior.

The rules applicable have been crystallized into statute in this state. Section 5442, Rev. Codes, provides:

"An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal."

And section 5450 reads as follows:

"Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal."

These statutory provisions are merely declarative of the common law, and in their application to the...