Newell v. Harold Shaffer Leasing Co., 73-1706.

• Decision Date: 08 February 1974
• Docket Number: No. 73-1706.,73-1706.
• Citation: 489 F.2d 103
• Parties: J. B. NEWELL and Mrs. Gladys Reed, mother and next friend of Miss Paulette Virginia Reed, a minor, Plaintiffs-Appellees, v. HAROLD SHAFFER LEASING CO., INC., Harold Shaffer, Individually, and Harold Shaffer, d/b/a Harold Shaffer Leasing Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 103 (1974)

J. B. NEWELL and Mrs. Gladys Reed, mother and next friend of Miss Paulette Virginia Reed, a minor, Plaintiffs-Appellees, v. HAROLD SHAFFER LEASING CO., INC., Harold Shaffer, Individually, and Harold Shaffer, d/b/a Harold Shaffer Leasing Company, Defendants-Appellants.

No. 73-1706.

United States Court of Appeals, Fifth Circuit.

February 8, 1974.

Rae Bryant, Gulfport, Miss., for defendants-appellants.

George Shaddock, Donald W. Cumbest, Pascagoula, Miss., Ben H. Harris, Jr., Howell, Johnston, Langford, Finkbohner, Johnstone, Adams, May, Howard & Hill, Mobile, Ala., for plaintiffs-appellees.

Before TUTTLE, DYER and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal in a diversity personal injury action by the defendants from the district court's denial of their motion for directed verdict and for judgment notwithstanding the verdict. The accident giving rise to this lawsuit occurred on November 16, 1968, when a truck driven by Bobby Gene Ferrell struck the rear end of Newell's vehicle, where Reed was a passenger. Newell and Reed sued Harold Shaffer Leasing Co., Inc., Harold Shaffer, Individually, Harold Shaffer, d/b/a Harold Shaffer Leasing Co. and Ferrell; however, since service of process was never obtained on Ferrell, the suit was dismissed against him. The complaint alleged that under the doctrine of respondeat superior the defendants were liable for the plaintiffs' injuries suffered when the truck bearing the name of one of the defendants struck their vehicle. The case proceeded to trial against Harold Shaffer Leasing Co., et al., resulting in a jury verdict of $30,000 for Newell and $4,000 for Reed. We affirm.

The following sequence of events was established at the trial. Immediately after the collision Newell left his car and talked with Ferrell, the driver of the truck. Newell noticed that written on the side of the truck was "Harold Shaffer Leasing Company, New Orleans, Louisiana," which name Newell wrote down on a piece of paper. Ferrell exhibited to Newell an insurance policy which was taken out of the cab of the truck. Newell copied from the insurance certificate the policy number and the name of the insureds which were "Harold Shaffer Leasing Company" and "Fiat Roosevelt Motors, Inc."

After the accident Newell had his vehicle repaired. Apparently without his solicitation Newell received in the mail an insurance draft for his expenditures in repairing his automobile. This check, sent to Newell from an insurance company, bore the name "Shaffer Leasing Co., et al." as the insureds. The check specified the date of loss as November 16, 1968, the date of the accident in question, and was for the exact amount of the repair cost to Newell's vehicle resulting from this accident. There was no proof at trial regarding who instituted the payment of this insurance draft. Newell returned the check to the insurance company. The defendants made a motion for a directed verdict at the close of the plaintiffs' presentation of evidence which was denied. Thereafter, the defendants rested without presenting any witnesses and the court submitted the case to the jury which returned a verdict for the plaintiffs.

The appellants' principal position in their motion for directed verdict was that they were not liable under the doctrine of respondeat superior, because there was no evidence that the offending truck was owned by either of them, or, that the driver was an employee who was furthering their business at the time of the accident. Nonetheless, the district court concluded that the appellees had introduced the following circumstantial evidence which sufficed to create a jury question on the agency relationship: (1) the truck had the name of "Harold Shaffer Leasing Company" written on its side; (2) the truck driver showed Newell a liability insurance policy taken from the truck which noted "Harold Shaffer Leasing Company" as one of the insureds; and (3) a liability insurer forwarded a draft to Newell which named the insured as "Shaffer Leasing Co., et al." and was for the exact amount of the repair cost to his vehicle.

The contentions of the appellants here are that the district court erred (1) in refusing to direct a verdict for them; (2) in admitting into evidence the copy of the insurance draft; (3) in allowing the jury to consider permanent injuries of Reed; and (4) in permitting this jury verdict evidencing bias and prejudice to stand. The latter three assertions are clearly without merit and can be readily dismissed; whereas, the appellants' initial argument does raise a substantial question whether plaintiffs' witnesses, together with any presumptions that this evidence raised, warranted the district court's submission of the agency issue to the jury. Nevertheless, our examination of this record and the Mississippi law regarding proof of agency persuades us that there was sufficient circumstantial evidence on the agency relationship to send this case to a jury.

Court Properly Submitted Agency Issue to Jury

Although the appellants did not present any evidence at trial refuting the agency relationship, in their pleadings and during trial the appellants denied that Ferrell was their agent, servant and employee acting within the scope of his employment at the time of this collision. Therefore, this matter was in dispute throughout. In the absence of evidence by the appellees which would create a material issue of fact of this relationship, the appellants would have been entitled to a directed verdict. However, the court determined that the appellees had presented sufficient circumstantial evidence to create a factual issue to be resolved by the jury. The principal cases relied on by the district court in refusing to direct a verdict for the appellants and for submitting this case to the jury were Jack Cole Co. v. Hudson, 409 F.2d 188 (5th Cir. 1969); Bynum v. Mandrel Industries, Inc., 241 So.2d 629 (Miss.1970); Hobbs v. International Paper Co., 203 So.2d 488 (Miss.1967); Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340 (1936).

Only recently Jack Cole Co. v. Hudson, supra, occasioned this Court's consideration of Mississippi law regarding the sufficiency of evidence to create a factual issue on agency relationships. In that case plaintiff's vehicle was struck by a large yellow-colored truck which did not stop to render aid. The only further description given by a witness to the collision was that it was a tractor-trailer van type, with the tractor portion painted yellow and the words "Jack Cole" painted in large letters over the cab on the front of the aluminum covered trailer. No one could give a more precise description either of the truck or its driver, or, testify as to what printing appeared on the tractor, if indeed there was any printing on it at all. The other supportive evidence of the agency relationship was that Jack Cole owned tractors and trailers, all of which were aluminum-colored and bore signs reading "Jack Cole Company," and that Jack Cole's trucks had permits to, and frequently did, travel that portion of Highway 11 where the accident occurred. The record reflected that no truck had been stolen on the day of the accident and that there were several side roads available for the hit and run driver to pull off the main highway to evade the search for him after the accident. In affirming the submission of the case to the jury, this Court concluded:

"Mississippi seems to follow the rule generally recognized elsewhere, that where a defendant\'s name appears on a commercial vehicle involved in an accident, there is a rebuttable presumption that the vehicle is owned by the defendant and that the operator of the vehicle is an employee of defendant, and was, at the time of the accident, engaged in the scope of his employment and in the furtherance of the business of the master. Merchants Co. v. Tracy, 175 Miss. 49, 60, 166 So. 340, 343; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 776, 45 So.2d 585." Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969).

Thus, the clear import of the decision was that where the name on a commercial vehicle involved in an accident is shown,

"a prima facie case has been established by the party in whose favor the rebuttable presumptions of ownership, agency, and scope of employment have arisen; however, such presumptions disappear if `strong and clear\' . . . or `positive and unequivocal\' . . ., or `uncontradicted or invulnerable\' . . ., or `clear and undisputed\' . . ., evidence is produced showing that the contrary is true." Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969).

Jack Cole certainly substantiates the district court's actions here in submitting this question of agency to the jury, where the plaintiff proved the name on the side of the commercial truck and where the defendant offered no evidence whatsoever to rebut the presumptions from this evidence.

The appellants claim Jack Cole is not determinative of the issue because the decision incorrectly interpreted the Mississippi law on this point. More specifically, their argument is that the Mississippi cases cited by this Court above do not support the rule of law propounded in Jack Cole. The appellants contend that Jack Cole holds that under Mississippi law when ownership of a commercial vehicle is established, i. e. by the circumstantial evidence showing the defendant's name was on the side of the truck, then the presumptions arise (1) that the driver of the vehicle is an employee of the defendant and (2) that at the time of the accident the employee was operating the vehicle in the scope of his employment.

Contrary to Jack Cole, the appellants assert that Mississippi law requires direct proof of an agency relationship, and does not follow the majority rule that circumstantial proof of ownership, i. e. the name on the side of a commercial truck, is prima facie evidence that the truck...