MILLER v. HOEFGEN

• Decision Date: 06 August 1947
• Docket Number: No. 5025,5025
• Citation: 183 P.2d 850,51 N.M. 319
• Parties: MILLER et al. v. HOEFGEN et al.
• Court: New Mexico Supreme Court

51 N.M. 319

183 P.2d 850

MILLER et al.

v.HOEFGEN et al.

No. 5025.

Supreme Court of New Mexico.

Aug. 6, 1947.

[183 P.2d 850, 51 N.M. 320]

Lewis R. Sutin, of Albuquerque, for appellants.

Gilbert & Gilbert, of Santa Fe, and Dailey & Rogers, of Albuquerque, for appellee Hoefgen.

COMPTON, Justice.

This is a suit to recover damages from the master for negligence of his servant in the operation of the master's truck.

For convenience we will refer to the parties as they appeared in the lower court.

On March 25, 1945, an automobile in which plaintiffs, James Miller and Stella Miller, were riding, was struck by a pickup truck operated by the defendant, Buell Rinner, Jr., seriously injuring plaintiffs. The truck was owned by the defendant, Leonard K. Hoefgen, doing business as Valley Oil Company. The plaintiffs charged Rinner with operating said truck negligently, and that Rinner was employed by Hoefgen and was acting within the scope of his employment at the time of the accident. The ownership of the truck and the negligence of Rinner was admitted by Hoefgen. He denied, however, that Rinner was acting within the scope of his employment.

On the day in question, Rinner was employed by Hoefgen in a filling station. Rinner had worked overtime fixing a tire for a customer and his manager permitted him to use the truck in question to go to lunch. The accident occurred while Rinner was driving the truck to lunch.

The court found for the plaintiffs as against the defendant, Rinner; and for the defendant, Hoefgen, on the ground that Rinner was not acting within the scope of his employment at the time of the accident. Rinner did not appeal.

The following are the findings of fact made by the trial court except those we deem unnecessary to a decision:

'4. That on the date of the said accident, Sunday, March 25, 1945 defendant Buell Rinner, Jr. was employed by defendant Leonard K. Hoefgen, at his service station situated on North Fourth Street, Albuquerque, New Mexico and was on duty and in the employ of said Leonard K.Hoefgen on that date; That Buell Rinner, Jr. had worked approximately one-half hour past his lunch time in the employ of and for the benefit of Leonard K. Hoefgen, and because of his being late for lunch Earl Hoefgen told him to take the pick-up truck involved herein and go to lunch.

'5. That at the time of the accident on March 25, 1945 the defendant, Buell Rinner, Jr. sometimes called Buell Renner, Jr.,was driving the automobile pick-up truck of the defendant, Leonard K. Hoefgen, d/b/a Valley Oil Company, for his sole purpose and pleasure and not as a servant, agent or employee or in the furtherance ofthe business of the defendant, Leonard K. Hoefgen, d/b/a Valley Oil Company.'

Then concluded as a matter of law:

'2. That at the time of the accident on March 25, 1945 the defendant Buell Rinner, Jr., sometimes called Buell Renner, Jr., was not engaged in the scope of his employment as a servant, agent or employee of the defendant, Leonard K. Hoefgen, d/b/a Valley Oil Company.

'3. That the defendant, Leonard K. Hoefgen doing business as Valley Oil Company, is entitled to judgment that the plaintiffs take nothing against him by reason of their complaint herein, and that he have and recover of and from the plaintiffs the costs of suit herein incurred.'

The question for our determination is whether the defendant, Rinner, was acting within the scope of his employment at the time his negligence caused the injuries to plaintiffs. Finding No. 5 is attacked because it is asserted that it is not supported by substantial evidence.

The evidence of Rinner's employment at the time of the accident was the testimony of Earl Hoefgen, the manager in charge of the service station where Rinner was employed. The undisputed facts relative to the issue of scope of employment are that on the day in question Rinner had worked at the filling station until 12:30 p. m., one-half hour past lunch time, to service a car for a customer of Hoefgen. Rinner finished this service and started to lunch. The manager, Hoefgen, observing the time, said to Rinner: 'Mr. Rinner, it is past noon, you may take the pick-up and go home to your dinner.'

In the course of his employment, Rinner, among other things, was required to operate the truck in question, using it for the delivery of fuel oils. His usual lunch time was from 12:00 to 1:00 p. m. This...