Rose v. Gisi
| Decision Date | 16 May 1941 |
| Docket Number | 31036 |
| Citation | 298 N.W. 333,139 Neb. 593 |
| Parties | HERMAN ROSE, APPELLEE, v. GERALD M. GISI ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dundy county: CHARLES E. ELDRED JUDGE. Affirmed in part and reversed in part.
AFFIRMED IN PART AND REVERSED IN PART.
Syllabus by the Court.
1. Objections to jurisdiction raised by special appearance may properly be preserved by appropriate allegations in the answer.
2. The nonresident motorists' law, section 20-530, Comp.St.1929, is to be strictly construed and applies only to those persons specifically designated in the statute.
3. Where an employee is placed in charge of a truck and permits an unauthorized person to operate it on the public highways of this state while it is being used in the master's business, the master, employee and operator, all being nonresidents, by such use of the highways are subject to service of process under the provisions of the nonresident motorists' law.
4. The selection by an employee of a substitute is a wrong to the employer where such delegation is unauthorized, but it is not negligence toward the public if the substitute is competent and there is no failure of fitting supervision.
5. If the act causing the injury is within the class of service for the doing of which the servant was employed, the master is bound, even if the servant was forbidden to perform the particular act.
6. But if the act forbidden was outside the class of service which the servant was employed to perform, the doing of the act is outside the scope of the employment and liability for the negligent performance of the act does not attach to the master.
7. Misconduct of counsel in the argument to the jury cannot be properly shown by affidavit. To properly preserve such error, the statements must be taken by the official court reporter at the trial, together with the objection made thereto and the court's ruling thereon.
Appeal from District Court, Dundy County; Eldred, Judge.
Action by Herman Rose against Gerald M. Gisi, doing business as the Gisi Produce Company, Victor Wascher, and Floyd Carter, and others, to recover for personal injuries sustained by the plaintiff in an automobile collision. From adverse judgments, the named defendants appeal.
Judgments against Gerald M. Gisi and Floyd Carter reversed, and judgment against Victor Wascher affirmed.
Butler, James & McCarl, Leon L. Hines and L. R. Doyle, for appellants.
J. J. Friedman, Victor Westermark and Cordeal, Colfer & Russell, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER and YEAGER, JJ.
This is an action to recover damages for personal injuries sustained by the plaintiff in a collision between two trucks on highway No. 34 at a point five or six miles east of Haigler, Nebraska. The verdict and judgment were for $ 6,000. Defendants bring the case to this court for review.
The record discloses that the plaintiff was riding in a truck with a number of other W.P.A. workers, when a truck belonging to Gerald M. Gisi of Yuma, Colorado, and driven by one Victor Wascher, also of Yuma, came up from behind and collided with the truck in which plaintiff was riding as Wascher attempted to pass it on the highway, causing the injuries for which damages are sought. There is no question raised in regard to the sufficiency of the evidence to sustain the verdict as to the negligence of the defendant Victor Wascher in the operation of the Gisi truck at the time of the accident. Neither is the amount of the judgment challenged as being excessive under the evidence. The principal questions raised by the appeal are whether the court obtained jurisdiction over the persons of the defendants and, if so, whether liability attaches to defendants Carter and Gisi under the evidence in the record.
The defendants Gisi, Carter and Wascher were residents of the state of Colorado at the time the accident happened. It appears that Gisi was the owner of an International truck which he was using in his produce and trucking business on August 31, 1938, the date of the accident. Defendant Carter was a regular employee of Gisi, his capacity being that of truck driver. On the day of the accident he was told by Gisi to go to Wray, Colorado, and Benkelman, Nebraska, to pick up some eggs and other produce. Defendant Wascher was also sent on the trip to assist in the loading and unloading of produce. The evidence of Gisi and Carter is to the effect that Gisi told Carter not to permit Wascher to drive the truck on the trip. The evidence shows that Carter permitted Wascher to drive the truck and that the accident happened while Wascher was so engaged.
Plaintiff commenced his action in the district court for Dundy county, and service of process was had by serving the secretary of state in accordance with the provisions of the nonresident motorists' statute. Comp. St. 1929, sec. 20-530. Each of the defendants filed special appearances which were overruled by the trial court. The objections to jurisdiction raised by the special appearances were preserved by proper allegations in the answers of the respective defendants. This is proper practice. Gaines v. Warrick, 113 Neb. 235, 202 N.W. 866.
It is well settled in this state that the nonresident motorists' law is to be strictly construed and held to apply only to those persons specifically named in the statute. Downing v. Schwenck, 138 Neb. 395, 293 N.W. 278. It has been held by this court also that the only basis for sustaining the constitutionality of a statute permitting service upon nonresident motorists in the manner provided by section 20-530, Comp. St. 1929, is that the voluntary use of the highways by a nonresident constitutes consent and agreement to the designation of an agent for service of process. Herzoff v. Hommel, 120 Neb. 475, 233 N.W. 458; Downing v. Schwenck, 138 Neb. 395, 293 N.W. 278. See Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Restatement, Conflict of Laws, sec. 84. Without such a basis upon which to predicate a voluntary consent and agreement the law would be violative of the fourteenth amendment to the Constitution of the United States. Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250.
The applicable portion of section 20-530, Comp. St. 1929, is as follows: "The use and operation by a nonresident of the state of Nebraska or his agent of a motor vehicle over or upon any street or highway within the state of Nebraska, shall be deemed an appointment by such nonresident of the secretary of state of the state of Nebraska as his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, growing out of such use or operation." We are inclined to the view that the word "operation" as used in this statute means the actual physical driving and handling of the motor vehicle. Morrow v. Asher, 55 F.2d 365. But by the addition of the word "use," thereby making the statute read "the use and operation," it clearly evidences an intent to include persons other than the actual operator of the vehicle. The words "use" and "operation" are not interchangeable or synonymous. It is clear that the Gisi truck was being used on the highways of Nebraska in the furtherance of the business of Gisi at the direction of Gisi. These acts are sufficient to subject Gisi to the provisions of the nonresident motorists' law. The defendant Carter, also a nonresident, was the agent of Gisi and had the general control of the truck. He was in fact using the truck on a Nebraska highway as agent in the furtherance of his principal's business when the accident happened. It is true that he was not operating the truck at the time, but we think he was using the truck within the meaning of the nonresident motorists' statute. Defendant Wascher was also a nonresident and was actually driving the truck at the time of the accident. He being engaged in the actual operation of the truck when the accident happened, he is clearly subject to the provisions of the nonresident motorists' law. It is the contention of defendants that Wascher was performing an act outside the scope of his employment when he undertook to drive the truck. It is often difficult in cases of this kind to determine the difference between a question of jurisdiction and one of defense. If Wascher did not occupy a relationship with the other defendants that would impute his negligence to them, it matters little in this case whether it be decided as a matter of jurisdiction or as one of liability. A determination cannot be made until the facts are established, and at that time the decision on either ground would lead to the same result. It seems to us, however, that the plaintiff is obliged to establish that Wascher was acting within the scope of his employment in order to sustain his cause of action as it is alleged in his petition. Jurisdiction is not dependent upon the establishment of liability. In the instant case, Wascher was an employee of Gisi and a presumption arises that he was within the scope of his employment in driving the truck, which presumption is sufficient to sustain the court's jurisdiction. When evidence to the contrary is adduced on this subject, the presumption disappears and plaintiff is then required to show by evidence that the act of driving the truck was within the scope of the employment. The case then resolves itself into a question of sustaining the issues by sufficient evidence rather than a question of jurisdiction of the parties. We therefore hold that each of the defendants was properly subjected to the jurisdiction of the district court for Dundy county under the provisions of section 20-530, Comp. St. 1929.
In the absence of error in the conduct of the trial, the...
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