Rossano v. Blue Plate Foods, Inc.

• Decision Date: 22 April 1963
• Docket Number: No. 19606.,19606.
• Citation: 314 F.2d 174
• Parties: Anthony J. ROSSANO, Jr., b/n/f Anthony J. Rossano, Sr., Appellant, v. BLUE PLATE FOODS, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

314 F.2d 174 (1963)

Anthony J. ROSSANO, Jr., b/n/f Anthony J. Rossano, Sr., Appellant, v. BLUE PLATE FOODS, INC., Appellee.

No. 19606.

United States Court of Appeals Fifth Circuit.

February 27, 1963.

Rehearing Denied April 22, 1963.

COPYRIGHT MATERIAL OMITTED

Vincent P. McCauley, Columbus, Ga., for appellant.

Albert W. Stubbs, Hatcher, Smith, Stubbs & Rothschild, Columbus, Ga., for Blue Plate Foods, Inc., appellee.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and CARSWELL, District Judge.

CARSWELL, District Judge.

In the course of normal pretrial procedure, the District Court ordered this automobile negligence action to go to the jury on the limited issue of agency, leaving other issues of proximate cause, injury, and damages for later determination. In doing so the Court invoked the provisions of Rule 42(b), Federal Rules of Civil Procedure, which reads:

"(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues."

Appellant made prompt but unsuccessful objection to this procedure and urges that error was thus committed.

To effect the salutary purposes of this rule it is clear that the trial Court must have broad discretion to determine what will further convenience or avoid prejudice. While conservation of both time and money are the bedrock basis for the rule, it is also true that if trial on a limited issue is prejudicial to the objecting party there has been abuse of discretion which should be reversed.

By every standard of sound administration of justice the District Court here was fully within its authority to settle the agency question first and separately. When the ruling was made, the record presented to the District Court a clear suggestion that the defendant's denial of agency was a very real thing meriting full development of all its pertinent facts before turning to other issues which were all dormantly dependent. For instance, it appeared that the alleged offending automobile was owned by Wayne Harris, not the defendant; that the accident occurred on the public streets, not on the premises of defendant; that Harris made his living by working for the defendant, but that at the time of the accident he was enroute to work after having had breakfast at home. Defendant denied that Harris was within the scope of his employment at the time. There were contentions by the plaintiff to the effect that defendant had ratified the use of Harris' vehicle by Harris for his going to and from his place of work and his home. The District Court properly considered that the law of the State of Georgia on agency in such case was controlling, and certainly we cannot say it abused its discretion in concluding there might reasonably be a very close issue on the question of agency.

The validity of the trial Court's call for limited trial is not dependent, of course, on the actual conclusion of the entire case on that single issue. In limiting the proof to one matter, there is never a requirement that the Court's recognition of serious issues before trial be ultimately resolved after such trial in favor of the party who first suggested the existence of the issue. It is enough that there be on the record at the time a substantial issue of fact which, if determined in favor of defendant, will eliminate expense for all concerned without prejudicing the rights of the parties.

It is difficult to grasp, and we cannot adopt, the argument of appellant that he was prejudiced here in some way. The result of the trial on the merits of his claiming agency was not preordained by the mere fact of trying it alone. As it developed, the issue was decided against him, but what is the harm in ending the fray in one battle instead of two or more? Appellant would have been not one whit more entitled to a verdict merely because lengthy additional testimony might have been taken on the separate and irrelevant issues of negligence and damages. In this instance it seems to us the Court was well within its discretionary bounds in limiting the action.

Confronted with the necessity of trial on the agency issue alone, appellant then sought to introduce testimony tending to show that the defendant had acted negligently by hiring Harris, who was said to be known as a careless driver, and placing him on the streets with knowledge that Harris might well drive carelessly and injure appellant, or others. This testimony relates to the general proposition of law that it is tortious conduct to employ one to do a particular thing with knowledge that in the scope of that employment the employee might reasonably be expected to act negligently to the detriment of others. Before such inquiry comes into play, however, it is fundamental that there must be a showing of agency. There must be a showing that there was legal accountability by the master for the servant or employee through control within the scope of employment. However predisposed an employee may be to specific acts of negligence, his conduct cannot be charged to his employer if it is done beyond the reach of his employment. Clearly, the District Court was correct in refusing testimony on this point as irrelevant in a trial limited to the issue of agency, which required, and received, a full airing of Harris' scope of employment.

Two final points raised by appellant are necessarily intertwined and will be so treated. They have to do with the District Court's refusal to allow appellant to examine a witness under Rule 43(b), Federal Rules of Civil Procedure,¹ and the Court's granting motion for directed verdict for Blue Plate at the close of the testimony on the single issue of agency. If the Court restricted the development of Rossano's evidentiary showing by erroneously denying cross-examination or impeachment of a witness, it follows, of course, that error was compounded in that the Court did not have a proper record upon which a directed verdict could be founded.

We conclude that the treatment given Rule 43(b) by the District Court here was not erroneous. The plaintiff Rossano first sought to call Wayne Harris under this Rule on the explicit ground that he was a "managing agent" of Blue Plate as that designation appears in the second sentence of the Rule. There was no contention that the witness was an officer or director of the defendant corporation. Upon objection by defendant, the Court properly ruled that the contention must be proved, and the relevant testimony was taken in the absence of the jury.

Harris was the driver and the owner of the automobile which allegedly injured Rossano on August 15, 1961. Prior to this time he was employed by Blue Plate Foods as a local warehouse manager, charged with the duty of loading trucks for deliveries, keeping certain records, and submitting them to the general office. He was paid a salary of $350.00 a month. His supervisory duties were concerned with four to six delivery men at the warehouse. He used his personal car in going to and from the warehouse and on occasions while enroute and upon the request of his employer he stopped by the Post Office or the bank to make routine mailings, pickups, or deposits. Blue Plate Foods closed its local warehouse and on September 8, 1961, Harris' job with the company was abolished. He was not re-employed by Blue Plate Foods at any time prior to the date of the trial on March 13, 1962.

Appellee urges that this particular contention of Rossano should be dealt with summarily by holding that the language of Rule 43(b) referring to managing agents means the witness must be so acting at the time he is called to testify and has no reference to his capacity at the time of the incident giving rise to the litigation.

In the interpretation and construction of the subject Rule, it must be borne in mind that it seeks to remedy at least some of the more strained results of a rigid application of the traditional premise which impels a party to vouch for the credibility and to be bound by the testimony of every witness who testifies at his instigation.² This concept, long ingrained in our tribunals, has much to commend it for orderliness of presentation and evolved with the replacement of an inquisitorial to a contentious or adversary system.

The wide acceptance and often highly artificial result of this common law rule has been much criticized by some courts and by most writers in the field of evidence, particularly as it applies to impeachment by use of previous contradictory statements. See the opinion of Judge ...