Monaghan v. Standard Motor Co.

• Decision Date: 29 January 1934
• Docket Number: 7179.
• Parties: MONAGHAN v. STANDARD MOTOR CO. et al.
• Court: Montana Supreme Court

29 P.2d 378

96 Mont. 165

MONAGHAN v. STANDARD MOTOR CO. et al.

No. 7179.

Supreme Court of Montana

January 29, 1934

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Mary Monaghan against the Standard Motor Company and another. From a judgment for named defendant, plaintiff appeals.

Affirmed.

Thomas W. Bonner and Joseph P. Monaghan, both of Butte, for appellant.

R. F Gaines, of Butte, for respondents.

ANDERSON Justice.

Plaintiff brought this action to recover damages for personal injuries sustained by her as the result of an automobile collision. At the time of the accident she was riding in an automobile driven by her son. A truck, the property of the defendant Standard Motor Company, a corporation, and driven by Dave Blaskovich, collided with the Monaghan car on July 23, 1931 at the intersection of Main and Noble streets in Meaderville. Blaskovich, the driver of the truck, was regularly employed as a teamster of the defendant company. His duties consisted of driving trucks, cleaning up around the garage of the company, and rendering other service about the garage. His working hours began regularly at 8:30 in the morning and ended at 5 o'clock in the afternoon. The accident in question occurred about 5:30 in the afternoon. At the time of the accident, the truck was loaded with crating and other scraps of wood, on one or more pieces of which appeared the name of the defendant company.

The record discloses that the motor company frequently received from manufacturers shipments of parts for automobiles inclosed in wooden crates or boxes. These parts were unpacked and the crating deposited in the boiler room. During the winter season this material was consumed in the furnace of the garage heating plant. In the summer months the shop foreman of the defendant company at various times would order the employees to clean up the boiler room and remove the cratings and other rubbish. On the day in question, the defendant Blaskovich was directed to clean up the boiler room, and he loaded the wood, the property of the defendant company, upon the truck. At the time of the accident, he was using the truck with the consent of the motor company for the purpose of transporting the wood to his own home for his own use as fuel.

The defendant company maintained a time clock in its establishment, and required employees "to punch" the clock at the beginning and the end of the working day. This record revealed that defendant Blaskovich on the date in question ceased work at 5:02 p. m. Blaskovich received no compensation for services after that time on that date. He was a member of the teamsters' union in the city of Butte, and under the working agreement between this union and his employer, he was not permitted to work overtime without compensation in accordance with an established schedule.

Plaintiff produced one Willis as a witness, who testified that for some three and a half years prior to the date of the accident he had been employed by the defendant company in a similar capacity to that of defendant Blaskovich; that he had on several occasions been directed to clean the boiler room; that during working hours he had loaded wood on a truck, the property of the defendant company, and removed the wood to his own home for use as fuel; and that he received no compensation for his time consumed in transporting the wood to his residence. The evidence of all the witnesses who testified on the trial of this case is in accord with the proposition that employees of the company were permitted with its consent to use one of its trucks to transport wood of the character in question from its place of business to their homes for use as fuel, and that they received no compensation for the work of transporting the wood, but were compensated for the time consumed in loading the wood on the truck.

At the close of the defendants' case the trial court sustained a motion for a directed verdict as to the defendant motor company, but denied the motion as to the defendant Blaskovich. The plaintiff thereupon moved the dismissal of the action as to Blaskovich, which motion was granted. A verdict was returned in favor of the defendant company as directed by the trial court. Judgment was entered on the verdict in favor of the company. The appeal is from the judgment.

Numerous specifications of error appear in the brief of the plaintiff. All of them challenge the correctness of the court's ruling in granting the motor company's motion for a directed verdict as to it. Plaintiff asserts that, since it appeared from the evidence that the truck was the property of the motor company, that the driver was in its general employ and that the removal of the wood was for its benefit, the presumption arose that at the time of the accident defendant Blaskovich was acting within the scope of his employment as a servant of the motor company; that this presumption has the weight of evidence and is sufficient to require the submission of the case to the jury, notwithstanding the uncontradicted evidence to the effect that Blaskovich at the time of the accident was acting without the scope of his employment and on an independent errand of his own.

It is well settled that even though the driver of a car is the servant of the owner of the car, the owner is not liable unless at the time of the accident the driver was acting within the scope of his authority and in regard to his master's business. Susser v. Delovage, 73 Mont. 354, 236 P. 1082; Hoffman v. Roehl, 61 Mont. 290, 203 P. 349, 20 A. L. R. 189. The proof of these facts--the ownership of the automobile, that Blaskovich was in the general employ of the defendant motor company, and that the truck at the time of the accident was loaded with crating bearing the name of that company--was sufficient to raise the presumption that at the time of the accident Blaskovich was within the scope of his employment.

The courts of the various states are not in accord as to the quantum of proof necessary to raise this presumption, but the evidence here is sufficient to come within the requirements of the jurisdictions requiring the maximum amount of proof. 2 Blashfield Cyclopedia of Automobile Law, § 42, chapter 69, pages 1636 to 1643, inclusive, contains a review of the decisions of the various courts on this question in detail.

The presumption which arose in this case was disputable, and such a presumption may be controverted by other evidence. Section 10606, Rev. Codes 1921. Such a presumption is successfully controverted when proof to the contrary overcomes it. By proof that satisfactorily overcomes it, it is meant that which is sufficient to sustain the affirmative of an issue--a preponderance of the evidence. Therefore, when the evidence preponderates against a disputable presumption, it fades away in the face of the contrary facts. In re Wray's Estate, 93 Mont. 525, 19 P.2d 1051; Welch v. All Persons, 85 Mont. 114, 278 P. 110; Nichols v. New York Life Ins. Co., 88 Mont. 132, 292 P. 253.

The fact, however, that the testimony is uncontradicted is not sufficient to overcome a disputable presumption and thereby to warrant a directed verdict, where the inferences to be drawn from the facts and circumstances are open to different conclusions by reasonable men. Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228. A mere denial by an interested witness controverting such presumption, which is not corroborated by other evidence, is insufficient to overcome the presumption. Renland v. First Nat. Bank of...