Morrison Motor Co. v. Manheim Services Corp., s. 76-830
| Citation | 346 So.2d 102 |
| Decision Date | 18 May 1977 |
| Docket Number | 76-831,Nos. 76-830,s. 76-830 |
| Parties | MORRISON MOTOR COMPANY and Middlesex Mutual Fire Insurance Company, Appellants, v. MANHEIM SERVICES CORPORATION, a Foreign Corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellants.
Thomas J. Ellwanger, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
Third-party plaintiffs/appellants seek indemnification over against appellees for monies paid out by appellants in a wrongful death action brought against appellant Morrison Motor Company as owner of the automobile which struck the decedents who were pedestrians at the time of the tragedy. The trial in the instant case centered around whether the driver of the automobile, one Bath, was an employee of appellee Manheim Services Corporation (d/b/a Lakeland Auto Auction) acting within the scope of his employment or was an independent contractor. Appellants urged he was an employee and that the Auto Auction, under respondeat superior, was liable as an active tortfeasor over to appellants who were passive. An alternative theory advanced below by appellants was that the auto auction had undertaken a nondelegable duty which rendered it liable in the premises even if the driver Bath were considered to be an independent contractor.
The trial judge directed a verdict in favor of the auto auction at the close of appellants' case in chief and this appeal ensued from the resulting judgment in favor of the auto auction. We affirm.
Considering the evidence in the light most favorable to appellants, as we must do in the present posture of the case, the following facts appear. Appellant Morrison Motor Company was in the used car business. Essentially, it purchased used cars from car rental agencies and, if it could not sell them with reasonable dispatch, would wholesale them through appellee Lakeland Auto Auction. Prior to the accident in this case, a practice had developed in the relationship between the parties hereto by which, when Morrison Motor Company wished to have certain cars transported to the auction for sale at an early time so as to get "early numbers" (meaning that the cars could be sold early on the day of the auction when prices were higher), an agent of Morrison Motors would call the general manager of the auto auction, Rudy Crowder, a day or so in advance of the auction requesting that he arrange to have the cars picked up and transported timely to the auction. During this time period, a Carol Buchanan was employed three days a week by the auto auction as a registration clerk whose duties involved writing up bills of sale for the various automobiles handled by the auto auction and numbering the cars for identification at the sale. Additionally, with the acquiescence of Crowder, she would occasionally transport and arrange for others to transport to the auction the cars of three of the best customers or clients of the auction, one of which was Morrison Motor. The evidence is undisputed that on virtually every occasion on which she transported or arranged to transport cars for these clients, she did so on her own time after she had clocked out of her employment with the auto auction (if it were one of her working days) and with the clear understanding with her boss, Rudy Crowder, that she was strictly "on her own" and that the auto auction was undertaking no responsibility. It further appears that each of the aforementioned three clients, including Morrison Motor Company knew and was aware of this arrangement. Indeed, the testimony of J. Forrest Morrison, President of Morrison Motors (whose testimony was introduced by deposition, he having died shortly before trial), revealed that he never paid the auction for such transportation of his cars, that he paid Ms. Buchanan or other drivers directly for driving the cars, that he paid the auto auction otherwise for fees or charges...
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Kelley v. Fed. Bureau of Investigation
...1528 (11th Cir.1990) ; Burleson v. Stark, 357 So.2d 1038, 1039–40 (Fla.Dist.Ct.App.1978), quoting Morrison Motor Co. v. Manheim Servs. Corp., 346 So.2d 102, 104 (Fla.Dist.Ct.App.1977). The “convenient test is whether the employee was doing what his employment contemplated.” Nadler v. Mann, ......
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Nadler v. Mann, 90-5383
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Schwartz v. Zippy Mart, Inc.
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