Keen v. Clarkson

• Decision Date: 23 December 1940
• Docket Number: Civil 4174
• Parties: A. J. KEEN and NINA I. KEEN, Husband and Wife, Doing Business Under the Name of KEEN'S FLOWER SHOP, Also Under the Name of KEEN'S NURSERY AND FLOWER SHOP, Also Under the Name of KEEN'S WESTWARD HO FLOWER SHOP, Appellants, v. JAMES R. CLARKSON, Appellee
• Court: Arizona Supreme Court

108 P.2d 573

56 Ariz. 437

A. J. KEEN and NINA I. KEEN, Husband and Wife, Doing Business Under the Name of KEEN'S FLOWER SHOP, Also Under the Name of KEEN'S NURSERY AND FLOWER SHOP, Also Under the Name of KEEN'S WESTWARD HO FLOWER SHOP, Appellants, v. JAMES R. CLARKSON, Appellee

Civil No. 4174

Supreme Court of Arizona

December 23, 1940

APPEAL from a Judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr Henderson Stockton, Mr. Eli Gorodezky, Mr. S. N. Karam and Mr. J. W. Cherry, Jr., for Appellants.

Messrs Cox & Hibbert and Mr. A. Y. Moore, for Appellee.

OPINION

ROSS, C.J.

The defendants A. J. Keen and Nina I. Keen, the proprietors of flower shops located in Phoenix, Arizona, in response to an order from a customer in the town of Florence, Arizona, for flowers for a funeral, on June 23, 1938, sent their Dodge motor truck to deliver the desired floral pieces and on the return trip, at about 1:30 the following morning, some two miles north of Chandler on the Mesa-Chandler highway, such truck collided with plaintiff Clarkson's convertible Ford coupe and injured plaintiff, for which he brought this action and recovered a verdict and judgment for $5,000. The defendants have appealed.

Max Lough was in charge of the truck on the trip and was its driver. There went along with him, with the defendants' knowledge and permission, his fiancee, Nita McElhaney (who later became his wife), and it was she who was driving when the injury to plaintiff occurred. It is claimed by defendants that Lough had no right to let or permit Nita to take the wheel and that they are not liable for any injury occurring to a third party while she was driving.

The ultimate facts, as shown by the evidence, are as follows: Nita McElhaney was a sister-in-law of Nina I. Keen's and had lived with the Keens for some eleven years. She assisted around the shops and did floral piece work. It is not shown that she was paid regular wages but she was given a home with the Keens and they gave her money when she needed it. Defendant A. J. Keen was asked whether she was in his employ and he said "Yes." Nina I. Keen said that Nita very often drove her personal car and delivered flowers and that she always helped around the shops when she could. Nita had driven automobiles for eleven years. Both the Keens testified that they had forbidden her to drive the truck and Lough said he had been instructed not to let anyone drive the truck on the trip. Lough's regular work was that of florist. The regular driver had been dispensed with on account of the slowness of business during the summer months and Lough was looking after the delivery of the Florence order.

Before leaving Florence for Phoenix, Lough and Nita had a Scotch whisky and soda. They then drove to Coolidge where they had dinner and proceeded thence homeward along about 10 or 10:30 P.M. When about five miles south of Chandler, Lough grew tired and asked Nita to drive. She had driven some seven miles when they came upon plaintiff's car, virtually at a standstill, on the right side of the road near the edge of the pavement. Plaintiff was in his car at the wheel and his companion, Robert E. Harvey, according to plaintiff's testimony, was on the right side pushing on the right door to get the car off the road when defendants' car ran into them.

According to defendants' testimony, when Nita saw plaintiff's car ahead of her, headed in the some direction, she applied the brakes, slowed down intending to pass on the left but Harvey at that instant stepped from behind plaintiff's car, which he was pushing, onto the highway in front of her and to avoid striking him she swerved to the right intending to pass on that side and in doing so hit plaintiff's car.

The complaint charged acts of negligence on the part of the defendants in driving at too great a speed, in failure to keep a lookout for traffic and for failure to apply the brakes quickly enough after the discovery of the plaintiff's automobile.

At the close of the evidence, the defendants moved for a directed verdict on the grounds that the driver of their truck at the time of the collision had no authority to drive it; that she was not their agent or servant; that she was not in the discharge of any duty she had been employed to perform, and that Lough, the driver of the truck, had been instructed not to let anyone drive it. The denial of this request by the court is assigned as error.

The question has not been before us until now but it is not new in other jurisdictions. We have, when the question of the liability of the owner of an automobile for damages due to its negligent operation has arisen, insisted that the person at the time in charge of the automobile should be the agent or servant of the owner, using the car in his employer's business and not for the driver's business or pleasure. Otero v. Soto, 34 Ariz. 87, 267 P. 947; Johnston v. Hare, 30 Ariz. 253, 246 P. 546; Peters v. Pima Mercantile Co., 42 Ariz. 454, 27 P.2d 143.

In this case there was no departure from the employers' business. The return trip from Florence would have been along the same highway if the driver had been Lough instead of Nita. In other words, the instrumentality was being used at the time in the business of the employers and as it was intended it should be used. The trip home was as much in the line of duty as the outward trip. The driver at the time of the accident, although an employee of defendants, was not employed to drive the truck. Her duties, it seems, consisted in helping around the flower shops, doing in that connection whatever was necessary, including the delivery of flowers to customers in defendant Nina I. Keen's personal automobile. She was not an inexperienced driver for she had been driving automobiles for eleven years. This young woman, an employee of defendants and an experienced driver, was expressly given permission by her employers to make the trip with Lough, to whom she was then engaged to be married.

There is conflict in the cases as to the liability of the owner of an automobile for damages for injuries resulting from its negligent operation by one permitted by the owner's employee to drive it. In emergent circumstances such permission is allowable. A.L.I., Restatement, 1 Agency, §§ 79 and 241. Lough was tired and asked Nita to relieve him at the wheel. It is very improbable that this condition was an emergent one. At least it is not shown to be by the evidence, and the liability cannot be sustained on that theory.

The general rule is that the owner is not liable for injuries negligently inflicted by a stranger to the employer temporarily permitted to drive by his employee. This rule has its qualifications, recognized by many courts and we would say by a majority of the cases; it is that if the driving, by the person selected by the employee intrusted with the automobile, is done in the presence of the employee the actor is considered as the alter ego of the employee and his acts are the acts of the employee, for which the employer is liable. 5 Am. Jur. 721, sec. 383, and cases cited. This rule is stated as the subject for annotation in 44 A.L.R. 1379 (Thixton v. Palmer, 210 Ky. 838, 276 S.W. 971) as follows:

"1. The owner of an automobile who permits his son to take it for a pleasure trip is liable for injuries caused by the negligent driving of a third person whom the son permits to operate the car while remaining in it himself, if the owner would have been liable had the son himself been driving at the time of the accident." The court in that case states that many of the cases are rested upon an opinion by Lord Abinger, C.B., in Booth v. Mister, 7 Car. & P. 66, in which the facts were that the driver of a cart permitted a stranger, with whom he was driving at the time of the accident, to take the reins. Against the contention that defendant's servant was not driving at the time and that hence there was no liability, Lord Abinger said:

"As the defendant's servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself." The facts in the Thixton case were that the owner of the car had intrusted it to her son, who, in turn, had intrusted it to a friend, who, while driving negligently, injured the plaintiff. The son was present in the car at the time. The court adopted the rule as stated in Lord Abinger and cited several cases from different jurisdictions adhering to the same rule. We quote from only one of such cases (Kayser v. Van Nest, 125 Minn. 227, 146 N.W. 1091, 51 L.R.A. (N.S.) 970), as follows:

"The daughter remained in the car, and, although not personally operating it, had not relinquished control over it, nor turned it over to another to use for his own purposes. It was still being used in furtherance of the purpose for which she had taken it out."

This rule of constructive identity between the driver and the person he has asked to drive for him, while he rides beside or with him in the automobile, was considered in Grant v. Knepper, 245 N.Y. 158, 156 N.E. 650, 54 A.L.R. 845. The facts as stated by CARDOZO, C.J., who wrote the OPINION, were:

"Defendant sent out his motor truck with a driver and a salesman to deliver merchandise. On the way back the salesman asked to be allowed to run the car, though he was without an operator's license. Permission being granted, he slipped into the seat behind the wheel while the driver stood upon the running board beside. After going about a mile and a half, the salesman ran the truck into a car which had been parked along the roadway. The truck, after striking and damaging the car, went on about 40 feet till it collided with a telephone pole, which it...