Manion v. Waybright

• Decision Date: 27 December 1938
• Docket Number: 6604
• Citation: 86 P.2d 181,59 Idaho 643
• Parties: PATSY ANN MANION, DONNIE MANION, DAVIE MANION and JOYCE MANION, Minors, By and Through EVA MANION, Their Guardian Ad Litem, and EVA MANION, Respondents, v. EDGAR WAYBRIGHT, Appellant
• Court: Idaho Supreme Court

86 P.2d 181

59 Idaho 643

PATSY ANN MANION, DONNIE MANION, DAVIE MANION and JOYCE MANION, Minors, By and Through EVA MANION, Their Guardian Ad Litem, and EVA MANION, Respondents, v. EDGAR WAYBRIGHT, Appellant

No. 6604

Supreme Court of Idaho

December 27, 1938

NONSUIT-DIRECTED VERDICT-JUDGMENT NOTWITHSTANDING VERDICT-REBUTTABLE PRESUMPTION - QUESTION FOR JURY - PRINCIPAL AND AGENT - SCOPE OF EMPLOYMENT - AUTOMOBILE ACCIDENTS - LIABILITY OF OWNER-INVITED GUEST-VERDICT-NEGLIGENCE-COSTS.

1. A party who moves for nonsuit, for directed verdict, or for judgment notwithstanding verdict, admits the truth of his adversary's evidence, and his adversary is entitled to the benefit of every inference favorable to him which may be drawn legitimately from any evidence before the court at the time the motion is made.

2. Where the automobile causing an accident belongs to the defendant and is being operated at time of accident by one in the general employ of defendant, it is presumed that at such time the driver was acting within scope of his employment and in furtherance of defendant's business, which presumption is only prima facie and may be rebutted by evidence adduced during the trial, by testimony of any of the parties to the suit.

3. In automobile accident case, where evidence offered to rebut presumption that operator of offending automobile was acting within scope of employment by defendant at time of accident is contradictory, question is for jury.

4. In automobile accident case, where evidence offered to rebut presumption that operator of offending automobile was acting in scope of employment by defendant at time of accident is undisputed, question is for court, not jury.

5. In automobile accident case where evidence is such as to leave court in doubt as to whether operator of offending automobile was acting in scope of employment by defendant, case should be submitted to jury.

6. It is the function of the jury to pass upon weight of evidence.

7. In action for death of guest who was riding in defendant's automobile driven by defendant's employee, evidence supported jury's finding that violation of rule forbidding defendant's drivers from carrying passengers was so common and notorious as to have been abrogated. (I. C A., sec. 48-901.)

8. Where defendant's traveling salesman had to be at defendant's place of business at 6 A. M., and while returning thereto the preceding evening drove into ditch and guest fell from automobile and was killed, fact that if guest had not been with salesman, salesman would have made the trip the next morning, did not affect question whether salesman was in course of employment at time of accident. (I. C. A sec. 48-901.)

9. As respects master's liability for servant's tort, an act may be "in the scope of employment" notwithstanding it is done in part to serve the purpose of the servant or of a third person.

10. As respects employer's liability for death of guest who was killed while riding with employer's traveling salesman question whether guest was employer's guest and was being carried in the automobile in the interest of employer's business was immaterial. (I. C. A., sec. 48-901.)

11. In action for death of guest who was killed while riding in defendant's automobile which was driven by defendant's traveling salesman, question whether salesman had defendant's permission to allow guests, including deceased, to ride in the automobile, was for jury. (I. C. A sec. 48-901.)

12. In action for death of guest who was killed while riding in defendant's automobile which was driven by defendant's traveling salesman, question whether, at time of accident, automobile was being used, in whole or in part in defendant's service or for the advancement of his business, was for jury. (I. C. A., sec. 48-901.)

13. In action against employer and his traveling salesman for death of automobile guest, where salesman was called for cross-examination by plaintiffs and salesman underwent direct examination by employer's counsel, and employer did not call salesman for cross-examination, employer could not complain of court's refusal to permit employer to cross-examine salesman. (I. C. A., sec. 16-1206.)

14. In action for death of guest who was killed while riding in defendant's automobile driven by defendant's salesman, where, on introduction in evidence of salesman's statements made after accident, judge ruled that they were not binding on defendant, instruction that statements were not binding on defendant was unnecessary.

15. Where defendant's salesman drove defendant's automobile into ditch, at night, and next morning body of guest who had been riding with salesman was found near place where automobile stopped, in action for death of guest, evidence sustained verdict for plaintiffs, as against contention that cause of guest's death was left in state of uncertainty. (I. C. A., sec. 48-901.)

16. In a civil case, facts upon which verdict is based need not be established beyond a reasonable doubt, but jury is to decide merely according to preponderance of evidence and reasonable probability of truth.

17. In action for death of guest who was riding in defendant's automobile being driven by defendant's salesman, plaintiffs were required to prove gross negligence in operation of automobile. (I. C. A., secs. 5-311, 48-901.)

18. In action for death of guest who was killed while riding in defendant's automobile driven by defendant's salesman, who fell asleep and drove into ditch, question whether salesman was guilty of "gross negligence" or acted with "reckless disregard" of rights of guest was for jury. (I. C. A., secs. 5-311, 48-901.)

19. Fifteen thousand dollars general damages and $230 funeral expenses for negligent death of husband and father of four minor children was not excessive. (I. C. A., sec. 5-311.)

20. Where liability on cost bond, which was in force during one year, was $300, an item of $10 in the cost bill as amount of premium on cost bond was excessive and reduced to $3 under statute limiting amount of recovery of costs allowed for premium on such bond to 1 per cent of the amount of liability thereon for each year it has been in force. (I. C. A., sec. 40-2110.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A party moving for nonsuit, for directed verdict, or for judgment notwithstanding verdict, admits the truth of his adversary's evidence, and his adversary is entitled to the benefit of every inference favorable to him which may be drawn legitimately from any evidence before the court at the time the motion is made.

II. If an automobile causing an accident belonged to defendant, and was being driven at the time by one in his general employment, there is a rebuttable presumption the driver was acting within the scope of his employment and in furtherance of his employer's business.

III. Where evidence, as to whether the driver was acting within the scope of his employment and in furtherance of his employer's business is contradictory, question is for jury.

IV. Generally speaking, the owner of an automobile can be held responsible for its negligent operation by another, resulting in accidental injury, only if at the time of the accident, the relationship of principal and agent or of master and servant existed between the owner and operator, who was at the time, acting in furtherance of the owner's business.

V. An act may be in the scope of employment, although done in part to serve the purpose of the employee or of a third person.

VI. Where a guest is injured or killed by accident while riding in an automobile, by invitation of the driver, who is an employee of the owner, the accident being due to the gross negligence of the driver in operating the automobile, in determining the owner's liability the question is not as to why the guest was riding in the automobile, but as to the right, or authority, of the driver to invite him to ride.

VII. In a civil case it is not necessary that facts on which a verdict is based be established beyond reasonable doubt. It is the jury's duty to decide according to preponderance of evidence and reasonable probability of truth.

VIII. In action for damages for injuries sustained in motor vehicle accident, by guest riding in such vehicle without payment for transportation, recovery cannot be had against owner or operator of vehicle without proof of gross negligence in its operation.

IX. Section 40-2110, of code, limits the amount which may be recovered as costs, because of premiums paid on judicial bonds, and sums paid in excess of such limitation are not recoverable.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for damages for accidental death caused by negligence. Judgment for plaintiffs. Modified and affirmed.

Judgment affirmed. No costs awarded.

Whitla & Knudson, for Appellant.

Motion for nonsuit was made by the defendant Waybright, at the close of plaintiff's testimony, and renewed at the close of the trial. A motion for directed verdict was also made at the close of the trial. In overruling these motions the court announced that he did so on the authority of the case of Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167. It is our contention that that case is in no manner controlling; that in this case the court was right when he made the observation that the evidence in this case showed that Waybright had a rule against riders and that the defendant Watson knew of it and that was all there was to it and that a decision in some other case is never controlling unless it is upon the same or similar facts.

Presumption disappears when facts are shown. (Befay v. Wheeler, 84 Wis. 135, 53 N.W. 1121,...