Montgomery v. Hutchins

• Decision Date: 29 April 1941
• Docket Number: No. 9543.,9543.
• Citation: 118 F.2d 661
• Parties: MONTGOMERY v. HUTCHINS et al. SAME v. McDANDEL. SAME v. GROOVER.
• Court: U.S. Court of Appeals — Ninth Circuit

118 F.2d 661 (1941)

MONTGOMERY v. HUTCHINS et al. SAME v. McDANDEL. SAME v. GROOVER.

No. 9543.

Circuit Court of Appeals, Ninth Circuit.

March 26, 1941.

Rehearing Denied April 29, 1941.

Gray, Cary, Ames & Driscoll, J. G. Driscoll, Jr., and Burton D. Wood, all of San Diego, Cal., for appellant.

Forgy, Reinhaus & Forgy, of Santa Ana, Cal., for appellee Groover.

Benjamin Lewis, of Los Angeles, Cal., for appellee McDandel.

Rorick & Cottingham, of Oceanside, Cal., and Wright, Monroe, Harden & Thomas and Clarence Harden, all of San Diego, Cal., for appellees Hutchins et al.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

This appeal questions the validity of judgments entered in favor of appellees in actions brought by them to recover for personal injuries sustained in an automobile accident in which appellant's chauffeur was operating appellant's automobile.

Lynch was employed by appellant as a chauffeur on February 20, 1938, and was instructed that he was not to use appellant's automobile for his personal use, and not to get drunk. On April 10, 1938, appellant and his wife left for Chicago from Los Angeles on a train at 11:30 a.m. Lynch was directed to drive the automobile to Chicago. Lynch and his wife left Los Angeles, with their baggage and a golf bag belonging to appellant, about 6:30 p.m. on the same day, and while driving on the highway (United States Highway 101) toward San Diego at a point two and one-half miles north of Oceanside, had a collision with a Ford automobile, in which the occupants of the latter were injured.

Ruth Hutchins and Edna Lucille Hutchins, minors, by a guardian ad litem and their father brought an action in which the minors sought to recover for the injuries sustained by them, and the father sought to recover for moneys expended by him for hospitalization and medical expense. They alleged that Lynch operated appellant's automobile "with the consent, express and implied" of appellant and "within the scope of his employment". Both Lynch and appellant were named defendants.

Dorothy McDandel, a minor by a guardian ad litem, brought an action against Lynch and appellant to recover for injuries sustained by her, alleging that at the time of the collision Lynch was operating appellant's automobile "with the consent" of appellant and "within the scope of his employment".

Percey Groover, the owner of the Ford automobile, brought an action against Lynch and appellant to recover for injuries sustained by him and for the loss of his automobile. He alleged that at the time of the collision, Lynch was acting as the authorized agent of appellant and was operating appellant's automobile "with the consent of" appellant.

All the above mentioned actions were filed in a state court in California and removed on the petition of Lynch and appellant to the court below. By answers, the liability of appellant for Lynch's acts was put in issue. The causes were consolidated for trial.

Prior to the trial, the deposition of appellant was taken. Appellant then testified on direct examination that between April 1, 1938, and April 10, 1938, he had obtained a map and had had the route to Chicago marked on the map; that he had directed Lynch to follow that route; that the route marked was United States Highway 66 from Los Angeles; that Lynch was instructed to drive to Blythe on such highway on the afternoon of April 10, 1938; that he had discussed the route several times with Lynch, and had marked the hotels at which Lynch was to stay; that he had never given Lynch permission to use his car for Lynch's personal use.

On cross-examination, appellant testified as follows:

"Q. And if I understand it right, you were more advising him of what you considered the best route to go? A. Yes."

When the deposition was submitted to appellant for examination and signature, that answer was changed to read as follows:

"No, I was instructing him to go by this Route."

Appellant further testified:

"Q. And if I understand your testimony on direct examination correctly, there was no definite date or deadline that he was to be in Chicago; you didn't purport to map out his daily schedule? A. No.

"Q. That would depend upon his discretion as your driver, I presume? A. Yes."

When the deposition was submitted to appellant for examination and signature, the last answer was changed to read: "Yes. Yes as to time of arrival within reason but not as to route which he was to follow".

On redirect examination, appellant testified that he was really giving instructions as to the route, and not advice; that he expected Lynch to follow the route marked; that he had not at any time told Lynch that he could go by any other route or use his discretion as to the route marked.

At the trial appellant testified that he instructed Lynch to drive his car to Chicago over the route marked on the map, to leave on the afternoon of April 10, 1938, to drive no farther than Blythe that afternoon, and to do no night driving; that he had not authorized Lynch to go to Vista or go by any other route than the one marked; that Lynch had not, to appellant's knowledge, used appellant's car for Lynch's personal use; and that Lynch had not told appellant that he wanted to stop at any particular place.

Lynch testified that he intended to go to Vista to leave his dog with some relatives; that he intended to stay all night at Vista, and leave the next morning for Chicago by way of San Diego rather than to return to Los Angeles; and that he did not ask appellant for permission to go to Vista. His testimony regarding appellant's instructions was in substantial agreement with that of appellant. Lynch was asked if, at the time of the accident, he told two traffic officers present that appellant had given his permission for Lynch to go to Chicago by way of Vista. Lynch denied making such statement, but the two traffic officers testified that Lynch did make the statement.

Appellant moved for a directed verdict at the close of the evidence. The motion was denied.

The trial court instructed the jury that if Lynch converted appellant's car to his own private use and pleasure outside the scope of his employment as chauffeur, then appellant would not be liable. The court then gave the following instructions: "* * * The fact that the automobile was operated by Lynch justifies the reasonable inference in the first place that he was operating the car in and about the course of his employment. This inference may be considered by you with the other evidence in the case, the burden of proof at all times remaining with the plaintiff to show by a preponderance of the evidence that Lynch was acting within the scope of his employment as Montgomery's chauffeur."

Other instructions challenged were in effect that if the route to be taken by Lynch was not definitely stated, pointed out, and detailed by appellant with express instructions to follow it, then a slight and immaterial deflection from such route or the fact that the route was merely advisory would not preclude liability on the part of appellant. The instruction need not be detailed, as it raises the same question as the motion for a directed verdict. In commenting on the evidence the court said: "* * * After the accident, as disclosed by the evidence here, if Lynch had departed from the instructions as stated upon the stand by Mr. Montgomery, would Montgomery have continued to employ a man who had directly violated a direct and positive statement of limitation and agreement and continued in his employ up to this time?"

Appellant requested the court to give two instructions proposed by him. They will not be quoted because we believe they were substantially given by the court in other words.

The jury returned verdicts for appellees, together with answers to certain interrogatories propounded to them, as follows:

"In case you return a verdict in favor of the plaintiffs, or either of them, you will answer the following interrogatories:

"1. At the time of the accident was the defendant Lynch driving said automobile as the agent or servant of the defendant Montgomery and in the course of his employment? Answer: Yes.

"2. At the time of the accident was the defendant Lynch operating said automobile with the express consent of the defendant Montgomery? Answer: No.

"3. At the time of the accident was the defendant Lynch operating said automobile with the implied consent of the defendant Montgomery? Answer: Yes."

This appeal was taken from the judgments entered in conformity with the verdicts.

Appellant contends that the evidence is not conflicting but on the contrary is clear that Lynch violated his direct, express and positive instructions and engaged in a purely personal mission of his own.

In Department Of Water And Power v. Anderson, 9 Cir., 95 F.2d 577, this court recently discussed the rules applicable to a case of this kind. In summary, we there said that a master is liable, under the doctrine of respondeat superior, for the tortious acts of his servant when operating the master's automobile, if done in the course of the servant's employment, even though such acts may have been done without the knowledge or authority of the master, or in disobedience of the master's orders; that the master is not liable for injury or damage resulting from the negligent operation of his car by his servant while the latter is using it for his own purposes with or without the master's permission or consent; that the test as to the existence of liability of the master is "whether the servant, at the time of the accident, was engaged in furtherance of the master's business or enterprise concerning which he was employed and acting within the scope of his employment". 95 F.2d page 583.

That case was decided about a month prior to the decision of Erie R. Co. v. Tompkins, 304 U.S. 64, 54 S.Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487. The latter case deprives us of any right to use our independent judgment as to...