Russo v. McAviney

• Decision Date: 21 February 1921
• Court: Connecticut Supreme Court
• Parties: RUSSO v. McAVINEY.

112 A. 657

96 Conn. 21

RUSSO v. McAVINEY.

Supreme Court of Errors of Connecticut.

February 21, 1921

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Action by Joseph Russo against Thomas E. McAviney. From judgment for plaintiff for $2,800,defendant appeals. Error, and new trial ordered.

Arthur B. O'Keefe, of New Haven, and William L. Hadden, of West Haven, for appellant.

Philip Pond, of New Haven, for appellee.

WHEELER, C.J.

defendant requested the court to direct a verdict in his favor, since there was no evidence from which the authority ofdefendant's son Walter to borrow the car of Hoffman & Thim could be found.

If thedefendant is right in his interpretation of the evidence the verdict ought to have been so directed. There was no evidence offered from which an express authorization could have been found. Hence the authority of the son to borrow this car must be implied; that is, it must arise out of the circumstances present.

The court instructed the jury that the plaintiff must prove that the son was at the time of the accident in thedefendant's employ, and engaged in his business and acting within the scope of his authority as an employee.

" The general rule is," said the court, " for all acts done by a servant in obedience to the express orders or directions of his master, that is, his employer, or in the execution of the master's business, within the scope of his employment, and for acts warranted by express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible. *** To state this rule in another way, the law not only renders a person liable for negligent acts done by himself personally, or by another acting under his express direction, but also makes a master liable for negligent acts done in the execution of the master's business for which the servant had been employed."

Applying these instructions to the case in hand the court instructed the jury that if they found the son was at the time of the accident the employee of defendant, and that his act in driving the automobile was done in the course of defendant's business, and that the authority from the defendant for the son so to do was fairly to be implied from the nature of his employment and his duties for the defendant and the manner in which he had performed them with the knowledge of the defendant, the liability of the defendant caused by the negligent operation of the automobile, must follow.

No complaint is made of the charge in these particulars. It follows our rule, and this was dictated by considerations of public policy. Stone v. Hills, 45 Conn. 47, 29 Am.Rep. 635; Turner v. American District Tel. & Mes. Co., 94 Conn. 712, 110 A. 540; Stuart v. Doyle, 95 Conn. 732, 112 A. 653 (decided February 21, 1921). Applied to this case, the rule requires the plaintiff to establish by a fair preponderance of the evidence that the tortious act of the defendant's employee was done in the execution of the defendant's business within the scope of his employment. He cannot establish this unless he proves that the defendant's employee acted with the defendant's implied authority, not to use an automobile in his business, but the automobile which he did use in his business.

Proof of agency is ordinarily a question of fact. Irving v. Shethar, 71 Conn. 434, 441, 42 A. 258; Indiana Bicycle Co. v. Tuttle, 74 Conn. 489, 492, 51 A. 538; Mechem on Agency (2d Ed.) § § 1879, 1887, 1916; 18 R. C. L. § 254. When the facts are undisputed, it may then become a question of law.

In this case upon this point, under adequate instructions, the jury found for the plaintiff, and hence found the existence of this implied authority from the defendant. And their finding is conclusive unless it be so unreasonable as to be unjustified in law. This will occur when the finding is made without evidence or contrary to the evidence. There was evidence before the jury directly or by inference tending to prove these facts: The son Walter was at the time of the accident engaged in the defendant's employment and fulfilling the duties connected with his regular employment as salesman and collector. He was accustomed to use in his work one of the defendant's three or four automobiles used in the business. On the morning of the day of the accident he took the car of defendant which he was accustomed to use from defendant's garage to Hoffman & Thim's repair shop, and left it there for repair. Hoffman & Thim were accustomed to do the repair work on defendant's cars. The defendant and his son both testified and neither suggested that the son did not have authority to take this car to the repair shop, and neither testified as to any instructions ever given the son by the defendant in the use of his cars, or forbidding him to use any other car in his work for defendant. After leaving the car for repair the son got a car of the same kind as that he left from Hoffman & Thim, and continued to use this during the day in his work in defendant's employment, and at the time of the accident was on the way to Hoffman & Thim's to return this car.

The evidence amply warranted the finding that the son's employment required the use of an automobile, and that it was natural and reasonable for him to obtain a car to take the place of the car he had been using, and to get this from the firm which did his father's repair work.

If these were all the facts, a conclusion that the son had implied authority to borrow this automobile of Hoffman and Thim could reasonably be drawn. But the defendant introduced evidence to prove that he never authorized his son to borrow a car from Hoffman and Thim, and never authorized them to let his son have this Ford automobile. If credited this would rebut a claim of express authority, but none such is made in this case. We are...