National Battery Co. v. Levy

• Decision Date: 26 March 1942
• Docket Number: No. 12121.,12121.
• Citation: 126 F.2d 33
• Parties: NATIONAL BATTERY CO. v. LEVY.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F.2d 33 (1942)

NATIONAL BATTERY CO. v. LEVY.

No. 12121.

Circuit Court of Appeals, Eighth Circuit.

March 2, 1942.

Rehearing Denied March 26, 1942.

Warren B. King, of Minneapolis, Minn. (Freeman & King, of Minneapolis, Minn., on the brief), for appellant.

Josiah E. Brill, of Minneapolis, Minn. (Brill & Maslon, of Minneapolis, Minn., on the brief), for appellee.

Before THOMAS and JOHNSEN, Circuit Judges, and REEVES, District Judge.

THOMAS, Circuit Judge.

It is agreed by the parties that this case presents a single question, namely: Was Edward Sullivan, an employee of appellant, acting within the scope of his employment when, as a result of his alleged negligence, he and William Levy, appellee's decedent, were both killed in the same accident?

The suit was brought for damages against the employer by Levy's executrix, and the appeal is from a judgment entered upon a verdict in her favor. The question, as presented in this court, was raised in the district court (1) by motion for a directed verdict, (2) by a requested instruction, and (3) by objections to the admission of evidence.

The motion for a directed verdict was on two grounds: (1) That at the time of the accident Edward Sullivan was engaged on a mission personal and for social reasons and was not on a mission within the scope of his employment, and (2) that plaintiff failed to sustain the burden of proof. As will appear from the discussion of the requested instruction and the objection to the admission of evidence, the motion for a directed verdict is without merit. The evidence made a prima facie case for the plaintiff without reference to the refused instruction or the admission of the evidence objected to.

The case is controlled by Minnesota law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The refusal of the court to give the requested instruction presents the question of what is the test under the law of Minnesota for determining whether an employee is acting within the scope of his employment in a case where he goes on a trip with a double purpose in view, one personal and the other in furtherance of his employer's business. The appellant contends that in such a case the dominant purpose of the employee controls; and in line with this contention the following instruction was requested: "If the work of the employee creates the necessity for travel, he is in the `Course of his employment' though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk. The question is was Sullivan placed upon the highway by force of any duty owing to his employer, the Defendant National Battery Company, or was the risk of travel his own."

The court held that when two purposes for the trip concur, one to carry on the master's business and the other personal, the employee is acting within the scope of his employment. Consistent with this rule the court, without exception by appellant, instructed the jury: "Did the business which the defendant had entrusted to Mr. Sullivan * * * create any reasonable necessity, under all the circumstances in this case, for this trip * * *, and was this trip in the furtherance in any respect of the company's business? Or was this trip * * * merely one of a social nature * * *? An answer to these questions will determine * * * whether or not at the time in question Mr. Sullivan was acting within the scope of his employment."

The accident in which Sullivan and Levy lost their lives occurred on the evening of April 13, 1940. In the line of his duty Sullivan was engaged in negotiating a contract on behalf of the appellant with Levy. They were at St. Paul, Minnesota, where Levy had come by airplane from New York for that purpose. In accordance with Sullivan's instructions it was important to conclude the business speedily. On that evening Sullivan and Levy decided to drive out to a restaurant at Forest Lake some distance from St. Paul to dine and to carry on the negotiations on the trip. For this purpose they took their papers relating to the transaction with them. On the way to the restaurant the accident occurred in which they were both killed.

Under these circumstances the Minnesota rule is in harmony with the general rule stated in 39 C.J., page 1297, as follows:

"* * * to exonerate the master from liability it is essential that the deviation or departure by a servant from the strict course of duty should be for purposes entirely personal to the servant. Where the servant is, notwithstanding the deviation, engaged in the master's business within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own."

"Nevertheless, if the servant totally departs from the master's business for a purpose exclusively his own, the master is not liable for his acts."

The application of these rules is illustrated by the following decisions of the Supreme Court of Minnesota: Sina v. Carlson, 120 Minn. 283, 139 N.W. 601; Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745; Mogle v. A. W. Scott Co., 144 Minn. 173, 174 N.W. 832; Menton v. L. Patterson Mercantile Co., 145 Minn. 310, 176 N. W. 991; Behrens v. Hawkeye Oil Co., 151 Minn. 478, 187 N.W. 605; Piepho v. M. Sigbert-Awes Co., 152 Minn. 315, 188 N. W. 998, 999; Stoneman v. Washburn-Crosby Co., 153 Minn. 331, 190 N.W. 605; Robertson v. Spitler, 153 Minn. 395, 190 N.W. 992; Fostrom v. Grossman, 161 Minn. 440, 201 N.W. 929, 930; Elliason v. Western Coal & Coke Co., 162 Minn. 213, 202 N. W. 485; Vogel v. Nash-Finch Co., 196 Minn. 509, 265 N.W. 350; Loucks v. R. J. Reynolds Tobacco Co., 188 Minn. 182, 246 N.W. 893; Marcel v. Cudahy Packing Co., 186 Minn. 336, 243 N.W. 265, 267.

In the Loucks case supra 188 Minn. 182, 246 N.W. 895, speaking of the rule under consideration, the court said: "An employee's service to the employer need not be the sole cause of the particular journey upon the highway, but it must be a concurrent cause." In the Ploetz case: If at the time of the wrongful act the automobile was being used "in part" for the purpose for which it was kept by the owner, the fact that the driver may also have been using it "in part" for purposes personal to himself would not necessarily relieve the owner of liability; if "among the purposes" 124 Minn. 169, 144 N.W. 747 for which it was being used the jury might find that one purpose was for the owner the owner would be liable. In the Marcel case 186 Minn. 336, 243 N. W. 267: "The employer was held liable, unless at the time of the wrongful act the employee "was exclusively engaged in his own affairs, that is, for his own pleasure or convenience"; that the employer is liable unless the act of the employee is "wholly disconnected from the service of his employer."

See also Rahn v. Singer Manufacturing Co., C. C. Minn., 26 F. 912, 916, affirmed 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440. In this case the court said: "* * * if Corbitt combined his own business with that of the defendant, and was using the team not exclusively for his own ends, but at the same time was pursuing the defendant's business, in the service for which he was employed, then the defendant would be liable if an injury was the result of Corbitt's negligence." This seems to be a clear statement of the rule in effect in Minnesota. There was no prejudice and the court did not err in refusing the requested instruction.

The appellant complains of the admission of evidence. After the accident in which Sullivan and Levy were killed, Sullivan's dependent widow and children filed a claim for compensation under the Employers' Compensation Act of Minnesota, Mason's Minn.St.Supp.1940, § 4272-1 et seq. Under the Act the claimants were entitled to such compensation only provided Sullivan at the time of his injury was acting within the scope of his employment. The claim was settled by the appellant herein as Sullivan's employer by the payment of the full amount to which the claimants were entitled under the law, if entitled to anything.

In the instant case one of the important issues was whether Sullivan at the time of the same accident in which both men were killed was acting within the scope of his employment. The burden was upon the plaintiff to prove that he was so acting. Upon the trial plaintiff's counsel offered in evidence exhibits T and U. Exhibit T consisted of the proceedings before the Industrial Commission of Minnesota relating to the claim of Sullivan's dependents. It included (1) the findings of the Commission; (2) a stipulation of settlement between the parties; (3) a denial of liability filed by the insurance company carrying the employer's risk; (4) notice of such denial; and (5) the first report of the injury made by appellant. Exhibit U is the receipt of the claimants for the payment of the award.

The court received the exhibits only "in connection with the issue of whether or not the injury complained of in this case occurred while Mr. Sullivan was or was not acting in the course and scope of his employment and with the authority of his employer." In the instructions the jury was advised in substance that the exhibits should be considered only in the bearing which such exhibits would have upon the question of an admission of the defendant that Sullivan was at the time of the accident acting within the course and scope of his employment. The stipulation stated that "it is the contention of the employer * * * that said injury * * * did not arise out of or during the course of the employe's employment", and that "it is the desire of the parties to peacefully settle and compromise their differences." There is no express admission by the appellant contained in...