Saltas v. Affleck

• Decision Date: 15 May 1940
• Docket Number: 6173
• Court: Utah Supreme Court
• Parties: SALTAS v. AFFLECK

102 P.2d 493

99 Utah 65

SALTAS v. AFFLECK

No. 6173

Supreme Court of Utah

May 15, 1940

Appeal from Third Judicial District Court, Salt Lake County; Allan G. Thurman, Judge.

Action by George Saltas against David A. Affleck, doing business under the name and style of D. A. Affleck Grocery, and another, for the death of plaintiff's son. From a judgment entered on a directed verdict of no cause of action in favor of the named defendant, plaintiff appeals.

AFFIRMED.

H. G Metos, Joe P. Bosone, and Samuel Bernstein, all of Salt Lake City, for appellant.

Stewart Stewart & Carter, C. Jay Parkinson, Edwin B. Cannon, and Gerald Irvine, all of Salt Lake City, for respondent.

LARSON Justice. MOFFAT, C. J. and MCDONOUGH and PRATT, JJ., WOLFE Justice, concurring.

OPINION

LARSON, Justice.

The action involved in this appeal arose out of a collision in which plaintiff's son was fatally injured, and the question raised on this appeal is whether the trial court erred in directing a verdict in favor of the defendant Affleck. Appellant contends that the presumption that the driver of the automobile was doing so as agent of the owner, and acting within the scope of his employment arising from the fact of proof of ownership of the automobile and of the agency should be considered as evidence to be submitted to the jury along with the uncontradicted evidence rebutting such presumption produced by the owner, and the agent. At the intersection of K Street and Third Avenue in Salt Lake City the car in which the deceased was riding collided with a grocery delivery truck driven by Kenneth Butte. On the side of the truck was the name of the owner, D. A. Affleck. The store was located at the corner of T Street and Second Avenue. The owner of the store and Kenneth Butte testified that the employe regularly made six delivery trips a day, following a route prepared by the manager for each trip. On the day of the accident he had made four deliveries on the noon trip when he agreed to give two girls a ride in the truck down to the business section of the city. After picking up the girls he made his last delivery on Third Avenue, east of the store. Having no more deliveries to make he should have returned the truck to the store. According to instructions given him by the manager he was not to take passengers without permission. In fact the only seat in the truck was that on which the driver sat, so on this ride the two girls sat on an empty packing box. Butte proceeded west on Third Avenue, passing T Street. When he arrived at K Street the accident occurred. The scene of the collision is nine blocks west and one block north of the place where the store is located.

Plaintiff, the father of the deceased, sued Butte, the employee, and D. A. Affleck, the owner of the automobile. The trial court decided that the servant was acting outside the scope of his employment or was "on a frolic of his own," and that as a matter of law the defendant, D. A. Affleck, was not liable for any damages arising out of an accident due to the former's negligence. The court therefore directed the jury to return a verdict of no cause of action in favor of the defendant D. A. Affleck and against the plaintiff, and the present appeal is prosecuted to reverse this action of the trial court.

The trial court was not in error in directing the verdict in favor of the defendant because the doctrine of respondeat superior is not applicable. Appellant argues that the question of whether the agent was within the scope of his employment should be submitted to the jury. The employe's action resulting in the accident was not a mere deviation from the course of the employment as was involved in Carter v. Bessey, 97 Utah 427, 93 P.2d 490, in which case this court held that the question should properly be submitted to the jury. See also Burton v. LaDuke, 61 Utah 78, 210 P. 978. Here there was a departure from the course of the employment and the employer's responsibility for the acts of his employee had ceased. When the employee has clearly departed from the scope of his employment there is no question to be submitted to the jury. Cannon v. Goodyear Tire & Rubber Co., 60 Utah 346, 208 P. 519; Fowkes v. J. I. Case Threshing Machine Co., 46 Utah 502, 151 P. 53; Wright v. Intermountain Motorcar Company, 53 Utah 176, 177 P. 237.

The question involved in this appeal is whether the presumption that the agent was acting within the scope of his employment arising from proof of ownership of the car and agency, and the affirmative evidence rebutting this presumption, raise a question of law for the court to decide, or a question of fact to be submitted to the jury.

The rule in this jurisdiction is that mere ownership of an automobile does not establish a prima facie case that the owner is liable for damages caused by the negligence of the driver. Ferguson v. Winter, 46 Utah 321, 150 P. 299. McFarlane v. Winters, 47 Utah 598, 155 P. 437, L.R.A. 1916D, 618, reaffirmed this view. See also Ferguson v. Reynolds, 52 Utah 583, 585, 176 P. 267. Ferguson v Winter, supra, held that in order to make out a prima facie case of liability against the defendant, whose automobile struck the plaintiff at a time when it was being driven by another, the plaintiff must in addition to proving ownership show by evidence either direct or inferential that the driver was a servant of the defendant, and that at the time of the accident he was acting within the scope of his employment. This court said in McFarlane v. Winters, supra [47 Utah 598, 155 P. 440,...