Magee v. Hargrove Motor Co.

• Decision Date: 05 March 1931
• Docket Number: 5559
• Parties: FRANCES MAGEE, Administratrix of the Estate of JAMES M. MAGEE, Deceased, Appellant, v. HARGROVE MOTOR COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

296 P. 774

50 Idaho 442

FRANCES MAGEE, Administratrix of the Estate of JAMES M. MAGEE, Deceased, Appellant, v. HARGROVE MOTOR COMPANY, a Corporation, Respondent

No. 5559

Supreme Court of Idaho

March 5, 1931

AUTOMOBILES-NEGLIGENT OPERATION BY OTHER THAN OWNER-LIABILITY OF OWNER-TRIAL-MOTION FOR NONSUIT, SUFFICIENCY OF.

1. Motion for nonsuit for insufficiency of evidence should point out insufficiency (C. S., sec. 6830, subd. 5).

2. Generally automobile owner is responsible for negligent operation by another only when relationship of principal and agent exists and agent is acting in furtherance of owner's business.

3. Where automobile operator at time of accident is independent contractor, owner is not liable.

4. Where at time of accident agent or servant of automobile owner is using automobile for his own purposes, owner is not subject to liability.

5. Evidence established automobile salesman was "independent contractor," for whose negligence owner of automobile by which injury was sustained was not responsible.

6. Where automobile salesman took automobile for Sunday hunting trip, owner held not liable for death caused by salesman's negligent operation, even if salesman was owner's agent.

7. Presumption that driver of automobile is owner's agent does not require every case should go to jury, where undisputed evidence establishes facts so conclusively that inference is overcome.

8. Presumption that automobile driver is agent of owner may be overcome by evidence adduced by testimony of any of parties to suit.

9. Plaintiff suing owner for damages occasioned by negligent operation of automobile by another has burden of proving that operator was owner's agent or servant.

10. Presumption that automobile operator is agent of owner does not shift burden of proof from plaintiff suing for negligent operation of automobile.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action for damages against Hargrove Motor Company and another. From judgment of nonsuit and dismissal of complaint as to defendant company, plaintiff appeals. Affirmed.

Judgment affirmed; costs to respondent.

James Harris and George Donart, for Appellant.

The primary test to determine the master's liability for the act of his servant under the doctrine of respondeat superior is whether the act was in the scope of his employment. The test is not the character of the act, nor whether it was done during the existence of the servant's employment; but whether the injury complained of was committed by the authority of the master expressly conferred or fairly implied in the nature of the employment and the duties incident to it. (39 C. J. 1282, sec. 1472.)

In order to escape liability it devolves upon the master to prove that the servant had abandoned the duties of his employment and gone about some purpose of the servant's own in which the master's business was not concerned and which was not incident to the employment for which the servant is hired. If the testimony leaves this question in doubt it should be submitted to the jury. (Barmore v Vicksburg S. & P. R. Co., 85 Miss. 426, 38 So. 210, 70 L. R. A. 627, 628.)

In an action for injuries from the negligent operation of an automobile, proof that the automobile was owned by the defendant at the time of the accident establishes a prima facie case for the plaintiff. (Note and cases cited, 42 A. L R. 900.)

Ed. R Coulter, for Respondent.

An owner who rents or loans his automobile to another, or who permits his employee to use the machine in the private business of the employee, and not in the business of the owner, is not liable for the negligence of the employee in operating the machine. (2 Blashfield's Cyclopedia of Automobile Law, pp. 1320, 1419; 36 A. L. R. 1137-1156, note; 42 C. J. 1095, 1096; 22 A. L. R. 1397, note; Jones v. Strickland, 201 Ala. 138, 77 So. 562.)

Where the uncontradicted testimony of plaintiff shows that at the time of the accident the car of the owner is being driven by an employee on a pleasure trip of the employee and not on the business of the owner, defendant owner is entitled to a directed verdict. (Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697; Louisville Lozier Co. v. Selee, 167 Ky. 499, 180 S.W. 841; Tischler v. Steinholtz, 99 N.J.L. 149, 122 A. 880; Fahey v. Madden, 56 Cal.App. 593, 206 P. 128; DeCamp v. Comerford, 134 Okla. 145, 272 P. 475; Rock v. Orlando, 100 Cal.App. 498, 280 P. 377; 42 A. L. R. 900, note; 22 A. L. R. 1419, note.)

BUDGE, J. Lee, C. J., and Givens and McNaughton, JJ., concur. Varian, J., did not participate.

OPINION

BUDGE, J.

A.T. Malicote was an automobile salesman of cars owned by the Hargrove Motor Company, working on a commission basis--being paid a percentage on each sale he made. He had not been given instructions as to what he was expected to do with respect to selling cars, as to when or where he was to take out cars; the matter of his use of cars for demonstration purposes, as to when and where he took them and whom he would permit to ride with him being left to his discretion.

On Sunday morning, September 23, 1928, an acquaintance of Malicote's suggested they go on a hunting trip, conditioned upon Malicote's securing a car in which to transport the party. That afternoon, in a car belonging to the motor company and driven by Malicote, he and two companions set out. Some distance out of Weiser they met J. M. Magee, who was riding a horse. Magee inquired where they were going, and on being told they were intending to proceed on up the road to shoot doves, Magee said that if they would not be gone too long he would go with them. One of the men in the car said he had to be back by "six-thirty," whereupon Magee entered the car, which proceeded on up the road. After going about three miles the car was stopped for a few minutes, turned around and started on the return trip. As it came to a curve in the road, going downgrade, the car went off the road and turned over, and as a result of injuries then sustained Magee died.

This action was instituted by the widow of Magee against Malicote and the Hargrove Motor Company to recover damages on account of Magee's death. The theory on which recovery was sought against the two defendants was that Magee had entered the car and rode therein at the invitation of Malicote, alleged by the complaint to be an agent and servant of the Hargrove Motor Company, acting within the scope of his employment at the time of the accident, said to have occurred as a result of the careless and negligent driving of the car by Malicote, and that Malicote and the motor company were liable in damages for such negligence, the company's liability being predicated upon the doctrine of respondeat superior.

At the conclusion of the introduction of testimony of behalf of plaintiff the trial court granted defendant company's motion for nonsuit. Defendant Malicote did not introduce any evidence, and the jury returned a verdict against him. The plaintiff has appealed from the judgment in so far as it affects the action of the trial court in granting defendant company's motion for nonsuit and dismissing the action against it.

The motion for nonsuit was made and granted as conforming to the provisions of C. S., sec. 6830, subd. 5 providing that a judgment of nonsuit may be entered by the court, upon motion of the defendant when, upon the trial, the plaintiff fails to prove a sufficient case for the jury. The ground of the motion no doubt was intended to be that the evidence was insufficient to entitle plaintiff to recover against the defendant company under the allegations of her complaint. The motion did not point out the particulars wherein the evidence was insufficient, as this court has held is a requisite of a motion for nonsuit when insufficiency of the evidence is relied on. (Mole v. Payne, 39 Idaho 247, 227 P. 23; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 325, 227 P. 29; Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925.) However, appellant does not complain of the motion being in too general terms, and it is apparent from the argument in the briefs that it was understood to be addressed to the sufficiency of the evidence to show that at the time of the accident Malicote was an agent...