Saucer v. Willys-Overland, 3511-J.

• Decision Date: 15 April 1931
• Docket Number: No. 3511-J.,3511-J.
• Citation: 49 F.2d 385
• Parties: SAUCER v. WILLYS-OVERLAND, Inc.
• Court: U.S. District Court — Southern District of Florida

49 F.2d 385 (1931)

SAUCER v. WILLYS-OVERLAND, Inc.

No. 3511-J.

District Court, S. D. Florida.

April 15, 1931.

James H. Bunch, of Jacksonville, Fla., for plaintiff.

Lee Guest, of Jacksonville, Fla., for defendant.

STRUM, District Judge.

This is an action at law to recover damages for the alleged wrongful death of plaintiff's husband. Section 7047, Comp. Gen. Laws Fla. 1927.

The declaration alleges that "* * * the defendant, Willys-Overland, Incorporated, a corporation, by and through its agent, servant, and/or employee, carelessly and negligently propelled and ran an automobile with great force and violence against and upon * * *" the deceased, causing his death.

Defendant demurs to that allegation upon the ground that it is not alleged that the servant of defendant was acting within the scope of his employment at the time of the negligent act complained of.

In an action resting upon the doctrine of respondeat superior, when the tortious act complained of was committed by the defendant through an agent or servant, the primary test to determine the master's liability therefor is whether or not the servant was then acting within the scope of his employment. It is elementary that the master is not liable for his servant's tortious act, unless such an act was committed in the course of the servant's employment and while such servant was carrying out his master's business. That such was the case must appear from the evidence, expressly or by necessary inference, before plaintiff can recover.

We are not concerned, however, with the proof. The question now under consideration is one of pleading.

It is quite generally held that where the tortious act is alleged to have been committed by a servant, without naming or referring to the defendant, such an allegation must be followed with the additional allegation that the act was committed by the servant while acting within the scope or course of his employment, or of his master's business, or (and perhaps more properly) the facts should be alleged in the declaration from which those matters are necessarily inferred.

Instances of such form of allegation are that the tortious act was committed by "A. B., the servant of C. D., the defendant; or by C. D., his agent, or servant." When these, or like allegations, are employed, they are insufficient unless accompanied by other allegations showing that the acts were within the course and scope of the servant's employment. For, non constat, the tort-feasor may have been the servant of the defendant, and yet the tortious act not be committed while engaged in his master's business. Illinois Cent. R. Co. v. Elliott, 17 Ala. App. 134, 82 So. 582; Daniels v. Carney, 148 Ala. 81, 42 So. 452, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; Addington v. American Casting Co., 186 Ala. 92, 64 So. 614; Wise v. Curl, 177 Ala. 324, 58 So. 286.

The allegation now before us, however, vitally differs from those just mentioned. This allegation charges that "the defendant," by and through its agent, servant, and/or employee, committed the tortious act.

In 39 C. J. 1352, it is said: "To state a cause of action against the defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is that the wrongful act was committed by defendant. This may be alleged either by alleging that defendant, by his servant, committed the act, or without noticing the servant, by alleging that defendant committed the act."

Under an allegation of the latter character, that is, that "the defendant" committed the tortious act, proof is admissible that the act was committed by a servant while engaged in the course and scope of his employment. 39 C. J. 1354. Where, therefore, it is charged that "the defendant" committed the tortious act, the further allegation that it was committed by and through an agent or servant is nonessential. Being a nonessential allegation, it is unnecessary, as a matter of pleading, to amplify it by adding the further allegation — which is perhaps a conclusion at best — that the servant was acting within the scope of his employment. Alabama Power Company v. Conine, 207 Ala. 435, 93 So. 22, illustrates quite clearly the distinction between the two general classes of averments. See also Metropolitan Life Insurance Company v. Carter, 212 Ala. 212, 102 So. 130; Lewis v. Chicago, etc., Co. (C. C.) 35 F. 639.

The demurrer is therefore overruled.

Amongst other items of damage, plaintiff's declaration also claims damages for the funeral expenses of deceased. Defendant interposes a motion to strike such claim from the declaration.

The pertinent part of the statute (section 7048, Comp. Gen. Laws Fla. 1927), with respect to damages recoverable, is that the person to whom a right of action may survive "shall recover such damages as by law such person or persons are entitled in their own...