Parker Motor Co. v. N. Packing Co.
| Decision Date | 22 October 1929 |
| Docket Number | No. 5712.,5712. |
| Citation | 227 N.W. 226,58 N.D. 685 |
| Parties | PARKER MOTOR CO. v. NORTHERN PACKING CO. et al. |
| Court | North Dakota Supreme Court |
In order to establish liability on the part of the master to a third person, to whom he owes no contractual duty, for the negligent act of his servant, the burden is on the person seeking recovery to prove, by a fair preponderance of the evidence, that the tort-feasor was a servant of the master, and at the time of the alleged negligent act was engaged in carrying out, or endeavoring to promote, his master's business, within the scope of the actual or ostensible authority conferred upon him.
The fact of agency and the scope of an agent's powers cannot be established by his own declarations.
In the instant case it is held, for reasons stated in the opinion, that there is no substantial evidence tending to show that at the time of the alleged negligent act of E., resulting in injury to P., E. was acting within the course of his employment as an employee of N., and that, consequently, a verdict in favor of P. and against N. for damages resulting from the alleged negligent act of E. is without support in the evidence.
Appeal from District Court, Ward County; Lowe, Judge.
Action by the Parker Motor Company against the Northern Packing Company and another. From a judgment for plaintiff and an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant named appeals. Reversed with directions.Nestos, Herigstad & Stenersen, of Minot, and McIntyre, Burtness & Robbins, of Grand Forks, for appellant.
McGee & Goss, of Minot, and I. H. Breaw, of Fargo, for respondent.
This action grew out of a collision between two automobiles-one belonging to the plaintiff and the other to the defendant Evenson. Plaintiff claims that the collision occurred by reason of the negligence of Evenson, and brought this action to recover damages alleged to have resulted therefrom. The plaintiff claims, and in its complaint alleges, that at the time of the collision Evenson was an employee of the defendant Northern Packing Company and was then “engaged in the performance of its business and his duties to it as his employer.” There was a verdict in favor of the plaintiff against both Evenson and the Northern Packing Company. The Northern Packing Company moved for judgment notwithstanding the verdict or for a new trial. The motion was denied, and it has appealed from the judgment and from the order denying its motion.
The damages sought to be recovered in this action were caused by a collision between a Chevrolet coupé driven by the defendant Evenson and a Dodge sedan driven by an employee of the plaintiff company. The collision occurred on one of the streets of Minot about 9 or 9:30 p. m. on January 23, 1928. Both cars were damaged.
A transcript of all the evidence taken upon the trial is contained in the record; but the only question raised as to the sufficiency thereof is whether there is any competent evidence whatsoever tending to establish that at the time of the collision, Evenson was engaged in the performance of any duty incident to his employment with the Northern Packing Company. A careful examination and consideration of all the evidence leads us to the conclusion that this question must be answered in the negative.
[3] One Waller, the driver of plaintiff's car, testified that immediately after the collision he asked Evenson if he (Evenson) had any insurance; that he (Evenson) answered this question in the affirmative, and further stated that the insurance was not written in Minot but in Grand Forks. Waller was further asked whether at this time he inquired of Evenson who Evenson was working for, or if Evenson told him who he was working for, and Waller answered that he would not swear that any such conversation was had. The witness Waller, however, was permitted to testify, over objection on the part of counsel for the Northern Packing Company, that a day or two after the collision he (Waller) went to Evenson's house, and that Evenson then stated that he was employed by the Northern Packing Company; and that during the same conversation Evenson stated that at the time of the collision he (Evenson) was taking to his home a certain man, who was then riding with him; and that he (Evenson) was “coming from off his territory, just getting in from his territory-the territory he covered for the Northern Packing Company.”
Evenson testified that after supper on the evening of the day of the accident he drove down to the Oak Park Meat Market to purchase some meat for use in his home the next day; that at the Oak Park Meat Market he met a man named Christenson, who had a house that he wanted to dispose of; and that at the time the collision occurred Evenson was taking Christenson down to his (Evenson's) house to show it to him with the idea of making an exchange of properties.
Aside from the alleged admissions on the part of Evenson, the only evidence as to Evenson's employment with the Northern Packing Company is Evenson's testimony. In response to questions propounded to him by the court Evenson testified as follows:
“Q. Where did you keep this car when you were in town? A. At my home.
Q. Where was that? A. 1012 Valley Street.
Q. By the way, this was your own car? A. Yes.
Q. Where did you come from that day, that afternoon? A. Sherwood.
Q. You came from Sherwood and drove to your home? A. Yes, sir.
Q. And you came home at about what time? A. I imagine about six o'clock, six-thirty o'clock and stayed home for some time.
Q. Stayed home for some time? A. Yes, sir.
Q. And then after that is when you started out for this meat? A. Yes.
Q. What were you going to do with the meat? A. We were going to have it to eat at home the next morning.
Q. You had come off the territory that day had you not? A. Yes.
Q. And when you came off the territory you went directly home? A. Yes, sir.”
And in response to questions propounded to him by counsel for the plaintiff on cross-examination, Evenson testified as follows:
“Q. By the way, what time of the night was it that this collision occurred? A. Oh, I would say about nine o'clock.
Q. You had been up at Sherwood for the Northern Packing Company that Monday? A. Yes.
Q. Handling, selling the day's meat, doing the day's business? A. Yes.
Q. The Oak Park Meat Market traded with you and the Northern Packing Company? A. They did, yes, sir.
Q. They did at that time, didn't they? A. Yes, sir.
Q. And that was the reason you went up there...
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