Husted v. French Creek Ranch, Inc.

• Court: Wyoming Supreme Court
• Writing for the Court: HARNSBERGER
• Citation: Husted v. French Creek Ranch, Inc., 333 P.2d 948, 79 Wyo. 307 (Wyo. 1959)
• Decision Date: 06 January 1959
• Docket Number: No. 2819,2819
• Parties: Robert A. HUSTED, June R. Husted and Todd Ellery Husted, an Infant by Robert A. Husted, His Guardian ad litem, Plaintiffs and Respondents, v. FRENCH CREEK RANCH, Inc., a Wyoming Corporation, defendant and Appellant, and Lyle Edgar Weir and Jack Spencer, Defendants.

Page 948

333 P.2d 948

79 Wyo. 307

Robert A. HUSTED, June R. Husted and Todd Ellery Husted, an Infant by Robert A. Husted, His Guardian ad litem, Plaintiffs and Respondents, v. FRENCH CREEK RANCH, Inc., a Wyoming Corporation, defendant and Appellant, and Lyle Edgar Weir and Jack Spencer, Defendants.

No. 2819.

Supreme Court of Wyoming.

Jan. 6, 1959.

Robert S. Lowe and Dudley D. Miles, Rawlins, for appellant.

Kenneth W. Keldsen, Rawlins, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

An automobile in which plaintiffs were riding was traveling east on U. S. Highway 30 when it was struck broadside by a pickup truck and as a result each of the plaintiffs received injuries. In their action to recover damages, judgment was rendered jointly against defendants Weir and French Creek Ranch, a corporation, pursuant to verdict of a jury awarding Robert A. Husted $1,000, June R. Husted $18,500, and Todd Ellery Husted $106.25 damages, and assessed costs against those defendants in the sum of $107.49. From this judgment defendant French Creek Ranch, a corporation, appeals. The further judgment rendered in favor of defendant Spencer was not appealed.

At the time of the collision, defendant Weir was driving the pickup truck and defendant Spencer and a man named Harry Scott were riding in that vehicle with him. At the scene of the collision, U. S. Highway 30 is divided by an eighteen-foot traffic island, with two lanes for eastbound traffic and two lanes for westbound traffic, and this four-lane highway is intersected at right angles by State Highway 130. Plaintiffs' car, driven by Robert A. Husted, was traveling east on U. S. Highway 30 and as it came into the intersection area it was struck by the pickup truck which was traveling south.

The appellant attacks the judgment against it on six separate grounds: (1) That as a matter of law, Weir, the driver of the pickup, was not such an employee engaged in the service of the appellant as to make applicable the doctrine of Respondeat Superior; (2) Spencer was not such an adverse party as permitted his cross-examination under the statute; (3) that the court prejudicially permitted certain testimonies to be given over appellant's objections; (4) because the court sustained the plaintiffs' demurrer to interrogatories propounded by the appellant; (5) that the claim of Robert A. Husted was barred because he was guilty of contributory negligence; and (6) the damages awarded were excessive.

As the first of these grounds seems to be more insistently stressed by appellant and involves many factual considerations relevant to other grounds, we give it immediate attention.

The evidence is clear that defendant Spencer was an employee of the company, and, although there was some variance in the testimony as to his authority, it seems plain to us that at least during the absence of his superiors, which was the instant case, he was in charge of the ranch and authorized to do whatever seemed necessary in connection with the ranch's business. Through its proper officer the company adopted the services of intermediaries to instruct Spencer to go to the road intersection, hereinabove described, pick up one Harry Scott, a new employee of the company, and take him to the company's ranch where he was to work. Although the company's president testified he specified a company vehicle should be used because it was insured and that he had previously instructed company employees not to use any except company equipment because of its being insured, Spencer denied he received and such instruction or that he was given any message or instruction other than to pick up Scott at the road intersection.

Prior to Spencer's receiving this word, Weir, who had previously worked at the ranch, applied to the president of the appellant company for re-employment on the ranch. Although Weir did not possess all the qualifications of the type of employee needed by the ranch, Weir was employed at a wage of $150 per month as a ranch hand to perform such services as might be required of him.

Under these circumstances, we have no doubt but that this arrangement constituted Weir an employee of the ranch company. In carrying out the company's order to go and get Scott, Spencer was free to use such reasonable means as he deemed proper. The evidence shows the company owned an insured vehicle which was available to Spencer at the ranch. However, it also appears this vehicle was out of repair and in the opinion of Spencer it was unfit to undertake the trip in the face of the adverse road and weather conditions existing at the time. Consequently, when the new employee Weir offered the use of his own pickup truck which was in better condition, Spencer accepted the same and, for reasons unnecessary to recount at length here, Spencer also decided that Weir should accompany him on the trip and alternate with him in driving the Weir car.

From these facts it seems obvious that Weir was acting in the line of his employment when driving the pickup truck on the mission directed by company orders, and that the Weir pickup was being properly used in company service at the time of the collision. Nothing more than this is necessary to invoke the doctrine of Respondeat Superior and to make the company liable for the negligence of its employee Weir.

As has been indicated above, the limit of the instruction given Spencer by the company was merely to pick up Scott. The company had adopted the services of intermediaries to convey its instructions. Independent of what the company told these agents, only the actual instruction received by Spencer is important to measure the extent of his authority to utilize such reasonable means as he considered necessary or advisable to obey the company's orders. To him those orders were simply to pick up Scott. The nature of his position with the company gave Spencer reasonable discretion as to how he would carry out his superior's orders. The means he used, including both the services of Weir as well as the vehicle chosen, were neither unusual nor unreasonable under the circumstances. The company had the right to control and direct Spencer's actions even to the point of limiting him to the use of company-insured vehicles only, but according to Spencer no such limitation was ever placed upon him and the jury was privileged to accept his version of the matter. This leaves the company with no just complaint when Spencer adopted what seemed to him the best means of carrying out the company's order. The nature of Weir's employment made him subject to the direction and control of Spencer and required him to accompany Spencer on the trip and even to drive the pickup when so directed. When he followed Spencer's orders in performing this service in behalf of the company, Weir was acting in the line of his employment.

The case of Stockwell v. Morris, 46 Wyo. 1, 9, 22 P.2d 189, 191, so heavily relied upon by appellant, presented a state of facts so different from those before us that it is of no value to appellant, but rather tends to emphasize the difference in a case like this from that where there is an agency more nearly of the nature of an independent contractor. There the court said:

'* * * And the gist of the controversy herein is as to whether the principal is liable for its agent's negligence while engaged in a more or less necessary physical act which is incidental to the performance of his general duties, or, if we must use a special term, whether or not the agent, while engaged in that physical act, must be regarded in the nature of an independent contractor. * * *'

By no conceivable stretch of imagination can Weir be regarded in this case as an independent contractor. He became an employee of the company through the act of its president and his driving of the truck on the company's errand was not merely incidental to his employment, but was the very type of service for which he was specifically employed; namely, to do whatever he was told to do in the company's service.

While the message from the company to Spencer failed to exercise that specific type of control which was available to it, the orders given Weir by Spencer on behalf of the company was the exercise of that control which made Weir through Spencer the true servant of the company. Weir was neither an independent contractor nor a volunteer but a servant of the appellant. This made the company liable for his negligent acts while serving the company. See Cumming v. Automobile Crank Shaft Corporation, 232 Mich. 158, 205 N.W. 133; Rice v. Garl, 2 Wash.2d 403, 98 P.2d 301. Nor is the fact that the vehicle used belonged to the employee, or that it was used without pay, or that its use was unnecessary to his employment sufficient to bar recovery against his employer. The company through Spencer had the right to adopt its use when made available through the owner's offer. See Curcic v. Nelson Display Co., 19 Cal.App.2d 46, 64 P.2d 1153; Kohl v. Albert Lifson & Sons, 128 N.J.L. 373, 25 A.2d 925, 140 A.L.R. 1146; Knapp v. Standard Oil Co. of California, 156 Or. 564, 68 P.2d 1052; Cook v. Sanger, 110 Cal.App. 90, 293 P. 794; Rankin v. Western Union Telegraph Co., 147 Neb. 411, 23 N.W.2d 676, 166 A.L.R. 873.

We must, therefore, conclude that any negligence in Weir's operation of the pickup which caused damage or injury to the plaintiffs or any of them created a liability of the defendant-appellant ranch company.

Defendant Spencer was first called by the plaintiffs for cross-examination as an adverse witness under the provisions of § 3-2604, W.C.S.1945. He was next called by appellant for cross-examination as an adverse witness under the provisions of the same statute and finally he testified in his own behalf.

Appellant complains it was improper for the court to permit this cross-examination by plaintiffs because Spencer in his answer had made damaging...