Saudi Arabian Airlines Corp. v. Dunn

• Decision Date: 14 September 1983
• Docket Number: No. AO-97,AO-97
• Citation: 438 So.2d 116
• Parties: SAUDI ARABIAN AIRLINES CORPORATION, and Iowa National Mutual Insurance Company, Appellants, v. Thomas Harrison DUNN, Jr., et al., Appellees.
• Court: Florida District Court of Appeals

Page 116

438 So.2d 116

SAUDI ARABIAN AIRLINES CORPORATION, and Iowa National Mutual Insurance Company, Appellants, v. Thomas Harrison DUNN, Jr., et al., Appellees.

No. AO-97.

District Court of Appeal of Florida First District.

Sept. 14, 1983.

Rehearings Denied Oct. 6, 1983.

Julian Clarkson, Holland & Knight, Tallahassee, James M. McLean, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant Saudi Arabian Airlines Corp.

John I. Todd, Jr., Jacksonville, for appellant Iowa Nat. Mut. Ins. Co.

William G. Gentry and C. Rufus Pennington, III, Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellee.

LARRY G. SMITH, Judge.

This is an appeal from a judgment entered after a jury trial in a negligence action. Appellant-defendant Saudi Arabian Airlines (Saudi) was found liable for damages for injuries sustained by appellee-plaintiff Thomas H. Dunn, Jr., caused by the negligent operation of an automobile driven by Saudi's employee, Hazza Saud Al-Faqeer. Saudi relies for reversal primarily upon its contention that the evidence is insufficient to support a jury finding that Al-Faqeer was its agent or employee, or, alternatively, that he was not acting within the scope of his agency or employment at the time of the accident. Saudi also asserts that it was error to allow the plaintiff to use Al-Faqeer's deposition, taken at a time when Saudi was not a party in the litigation, to prove his employee status. Iowa National Mutual Insurance Company (Iowa), Dunn's underinsured motorist insurer, cross-appeals the final judgment entered against it. We affirm as to the appeal and the cross-appeal.

Al-Faqeer was brought to the United States by Saudi to learn English and go to technical training school. Saudi enrolled Al-Faqeer in a special English language institute, which leased classroom and office space from the University of North Florida in Jacksonville and which was operated by Systran Corporation, under a contract with the airlines. While Al-Faqeer was going to school, Saudi paid for his tuition and books and gave him $650.00 a month toward housing and food. Saudi monitored Al-Faqeer's academic progress and prohibited him as a Saudi technical trainee from taking any kind of flight training. After his training, Al-Faqeer planned to work for Saudi.

On the afternoon of October 10, 1979, Al-Faqeer, who did not have a valid United States or Florida drivers license, drove the car of his cousin, Abdullah Ali Shihry, from school to an Albertsons store to buy some groceries. When driving back to the school, he lost control of the car going through a Jacksonville intersection, sent the car airborne, and landed on top of Dunn's car, causing Dunn to suffer severe head injuries.

Dunn filed a complaint against Shihry and Al-Faqeer. Two months later, Dunn's counsel took Al-Faqeer's deposition, at which time it was learned that Al-Faqeer was a Saudi Arabian citizen in the United States pursuant to a technical training program of the airlines. Seven months later, Dunn amended his complaint to name Saudi as a defendant under the doctrine of respondeat superior. At the same time he added Allstate Insurance Company, Shihry's liability insurer, as a defendant. Later, when the second amended complaint was filed, Iowa was added as a defendant.

Saudi filed a motion to abate for lack of jurisdiction and a motion to dismiss for failure to state a cause of action, both of which were denied. Saudi appealed the denial of the motion to abate relying on Al-Faqeer's deposition as support for its position that as a matter of law there could be no liability under the doctrine of respondeat superior since Al-Faqeer was not acting within the course and scope of his employment at the time of the accident but was instead either "coming and going" to work or deviating from his employment. This court found that "the allegations of the amended complaint were clearly sufficient to charge appellant with legal responsibility for its alleged employee's wrongful act while acting within the course and scope of his employment" and that Saudi's "motion to abate for the lack of personal service, supported as it was by Al-Faqeer's deposition, failed to make a prima facie showing that Al-Faqeer was not acting within the course and scope of his employment at the time of the accident" and accordingly affirmed the trial court's denial of the motion to abate. Saudi Arabian Airlines Corp. v. Dunn, 395 So.2d 1295, 1296 (Fla. 1st DCA 1981). ¹

Subsequently Al-Faqeer was terminated from Saudi because he was unreliable and was returned to Saudi Arabia.

At the trial, over Saudi's objection, Dunn was permitted to read excerpts of Al-Faqeer's deposition to the jury. At the conclusion of the trial, the jury returned a verdict in favor of Dunn and awarded damages in the amount of $325,000.00. ² The trial court entered final judgment against all defendants in this amount. Iowa filed a motion requesting the court to amend the final judgment to reflect that Iowa would not be liable to Dunn since Dunn had made a full recovery in the amount of his damages against Saudi. The trial court denied Iowa's motion to amend the final judgment and motion to tax costs and entered an amended final judgment limiting the recovery against Allstate to $10,000.00, and the recovery from Iowa to $90,000.00. ³

Initially, appellant complains that the trial court erred in permitting excerpts of Al-Faqeer's deposition to be introduced against it because it was not a party at the time the deposition was taken. Brown v. Tanner, 164 So.2d 848 (Fla. 1st DCA 1964). Saudi contends this constituted reversible error since these excerpts were the sole testimony introduced by Dunn's counsel at trial to show that Al-Faqeer was at school on the day of the accident, that he had been buying groceries just prior to the accident and that he had been returning to school at the time of the accident, facts which are crucial to Dunn's contention that Al-Faqeer was acting within the scope of his employment.

However, Saudi's argument ignores the admissibility of Al-Faqeer's deposition testimony as one of the exceptions to the hearsay rule under Section 90.803, Florida Evidence Code, Florida Statutes (1981). A statement offered as an admission against a party of which he has manifested his adoption or belief in its truth is admissible. Section 90.803(18)(b). In its previous interlocutory appeal from the trial court's order denying the motion to abate, Saudi relied on Al-Faqeer's deposition testimony as support for its position that Al-Faqeer was not acting in the course and scope of his employment at the time of the accident. Subsequent to that unsuccessful appeal, Saudi again adopted Al-Faqeer's deposition testimony by asserting it as a basis for its motion for summary judgment. Under the circumstances, Saudi's conduct amounted to an "adoptive admission" of Al-Faqeer's deposition testimony which the trial court correctly permitted to be introduced as evidence in the trial below. Dinter v. Brewer, 420 So.2d 932 (Fla. 3rd DCA 1982). Brown v. Tanner, relied upon by Saudi, does not dictate a contrary result since it did not involve consideration of other independent evidentiary grounds for admitting the deposition.

Recognizing that the existence of an employer-employee relationship is normally one for the jury, Saudi nevertheless contends that it was entitled to a judgment n.o.v. on this issue since as a matter of law, Al-Faqeer could not have been an agent or employee of Saudi. Al-Faqeer, Saudi argues, was not an employee, he was merely a student with a prospect of employment with Saudi if he successfully completed his school work. Saudi admits Al-Faqeer was paid a stipend and clothing allowance to cover his normal living expenses but points out that this was not subject to withholding tax. Further, Al-Faqeer did not have a payroll number, a date of hire, or a seniority date with Saudi. Saudi analogizes this case to the situation presented in Donovan v. American Airlines, 686 F.2d 267 (5th Cir.1982). There, the Secretary of Labor sought to require American Airlines to pay the minimum wage to flight attendants and reservation agent trainees on the grounds that they were "employees." The court determined that the provisions of the Fair Labor Standards Act did not apply to these airline trainees while in training. In so ruling, the court was guided to a great extent by criteria formulated by the wage and hour administrator which provide for an analysis based upon the benefits derived by the trainee as compared to the benefits or detriments to the employer who provides the training ⁴. If all six criteria are met, there is no employment relationship under the act. Donovan, at 273.

On the other hand, to determine whether an employer-employee relationship exists in this case, we must look to the law of master and servant. ⁵ At common law, four elements were considered in making a determination whether a master and servant relationship exists--the selection and engagement of the servant, the payment of wages, the power of dismissal, and the control of the servant's conduct--the essential element being the right of control and the right to direct the manner in which the work shall be done, the payment of wages being the least important factor. When the element of control is present, the absence of monetary consideration does not preclude the existence of the master-servant, employer-employee relationship. In Re Read's Petition, 224 F.Supp. 241 (D.C.S.D.Fla., 1963); 2 Fla.Jur.2d "Agency and Employment," § 121, pp. 297-298. In City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956), the Supreme Court described an employer-employee relationship thusly:

An employee is one who for consideration agrees to work subject to the orders and directions of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions...