Scrivner v. Boise Payette Lumber Co.

• Citation: 46 Idaho 334,268 P. 19
• Decision Date: 28 May 1928
• Docket Number: 4657
• Parties: NOLA M. SCRIVNER and HERMAN H. SCRIVNER, Respondents, v. BOISE PAYETTE LUMBER COMPANY, Appellant, And PATRICK DOWNS, Defendant
• Court: Idaho Supreme Court

268 P. 19

46 Idaho 334

NOLA M. SCRIVNER and HERMAN H. SCRIVNER, Respondents, v. BOISE PAYETTE LUMBER COMPANY, Appellant, And PATRICK DOWNS, Defendant

No. 4657

Supreme Court of Idaho

May 28, 1928

MASTER AND SERVANT-WRONGFUL ACT OF SERVANT-LIABILITY OF MASTER-NEGLIGENCE-PROXIMATE CAUSE-INSTRUCTIONS-EVIDENCE-WHEN A QUESTION FOR COURT OR JURY.

1. Upon a motion for nonsuit, all reasonable inferences must be indulged in favor of plaintiff as to any facts which the evidence tends to establish.

2. If there is a conflict in the evidence or more than one inference may reasonably be drawn therefrom, the question is for the jury, but, if only one conclusion can be drawn, it is a matter for the court.

3. As regards master's liability for acts of servant injuring third person, it does not matter whether injury was intentional or not, if the acts of a servant are not within the scope of his employment.

4. It is not enough to render master liable that wrongful act of servant injuring third person is in some way associated with servant's authorized functions or that he committed it at a time when he was occupied with discharge of such function since, if it was not done as a means or for the purpose of performing his work or in the scope of his employment, the master is not liable.

5. In order that a subsequent independent act of negligence shall not displace a former act as the proximate cause or to constitute the first of two acts of negligence the proximate cause of an injury, succeeding act must be so connected with first in time and nature as to make it plain that damage was natural and probable consequence of the original wrongful act or omission, and, to establish this, original negligence must have been such that it must have been known to or anticipated by original wrongdoer that in natural course of human conduct a succeeding act of negligence was at least likely to be committed.

6. Negligence of watchman in carrying pistol loaded and cocked and with safety appliance off, rendering it unsafe, cannot be said to be the proximate cause of death of one whom watchman pointed pistol at, not as part of performance of any duty, but as a joke, since shooting which followed when pistol was allegedly accidentally discharged could not have been known or anticipated as likely and probable result of unsafe condition of pistol.

7. In action for death of one shot by watchman, whether watchman was joking in withdrawing pistol and pointing it at deceased and thus acting outside scope of his employment, held question for jury under the evidence.

8. In action for death of one claimed accidentally shot by watchman, requested instruction which would have unduly restricted jury to the necessity of finding that watchman was expressly or impliedly within line of his duty to hold employer liable, and that shooting was done for purpose of performing work for or advancing interest of company, held properly refused, since, if watchman was in performance of his duty when he drew and pointed pistol, the actual shooting might have been due to negligent handling of pistol.

9. In action for death of one claimed accidentally shot by watchman, refusal of requested instruction that, if servant steps aside from his master's business for a short time to do act not connected with his business, relation of master and servant is for time suspended, held error, it not having been covered by any of given instructions.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action for damages. Judgment for plaintiffs. Reversed and remanded.

Reversed and remanded. Costs to appellant.

Alfred A. Fraser and P. B. Carter, for Appellant.

In order for the plaintiffs to recover in this action, it was necessary for them to prove not only that the act causing the death of Herman Scrivner was done during the period of his employment or the time that he was doing some act for his employer, but they must also prove that the act causing the injury was done in the prosecution of the master's business. (St. Louis Southwestern Ry. Co. v. Harvey, 144 F. 808, 75 C. C. A. 536; Jackson v. Chicago & R. I Ry. Co., 178 F. 432, 435; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; St. Louis & S. F R. Co. v. Rie, 110 Ark. 495, 163 S.W. 149; Sullivan v. Louisville & N. R. Co., 115 Ky. 447, 74 S.W. 171.)

In the case of Kemp v. Chicago, R. I. & P. Ry. Co., 91 Kan. 477, 138 P. 621, the court says: "The act must be the result of doing the business of the master or parent, and not of an independent act done during the cessation, even momentary, of the doing of such business. Mirick v. Suchy, 74 Kan. 715, 11 Ann. Cas. 366, 87 P. 1141, 1142."

It is the duty of the trial judge to direct a verdict at the close of the evidence whenever it is wholly undisputed or but a single inference can be drawn therefrom by reasonable men, so that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition thereto. (Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 210 U.S. 1, 28 S.Ct. 607, 52 L.Ed. 931; Bond v. Sanford, 134 Mo.App. 477, 114 S.W. 570.)

In the case of Brauner v. Snell, 35 Idaho 243, 205 P. 558, this court says: "While a motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and appellant is entitled to the benefit of all inferences in her favor which the jury would have been justified in drawing from the evidence had the case been submitted to it (McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919), nevertheless, after a careful examination of the record, we have reached the conclusion that appellant failed to support the allegations of her complaint, and the court did not err, therefore, in granting the motion for nonsuit."

If it be conceded that the appellant company furnished its watchman, Patrick Downs, with the revolver which caused the accident resulting in the death of Herman Scrivner, yet we maintain that this is no ground of liability, unless at the time of the accident the revolver was being used in the interest of the master and for the furtherance of the master's business. (St. Louis Southwestern Ry. Co. v. Harvey, supra; Chicago, St. P., M. & O. Ry. Co. v. Bryant, 65 F. 969, 13 C. C. A. 249.)

In the case of Figone v. Guisti, 43 Cal.App. 606, 185 P. 694, the court says: "The rule is entirely beyond question that a master is responsible for the torts of his servant only when they are committed within the scope of the employment. The fact, emphasized by the appellants, that the injury to plaintiffs involved the use of a revolver, which is a dangerous instrumentality, and that it was by reason of his employment that George Guisti was enabled to get possession of this weapon, does not alter the rule, in this state, at least. For it has been held in the case of Stephenson v. Southern P. Co., 93 Cal. 558, 27 Am. St. 223, 29 P. 234, 15 L. R. A. 475, that where a servant of the railroad company diverts the appliances of the company to wanton and malicious purposes to the injury of others, the company is not liable."

J. R. Smead and L. W. Tennyson, for Respondents.

A master is liable for injuries resulting to others either because his servant failed to use due care in performing some overt, positive act in the furtherance of the master's business and within the scope or course of the servant's employment, or because the servant failed, in a negative, inactive manner to discharge a duty owed to such other persons by the master in the conduct of his business. (Jones v. Atchison, T. & S. F. R. Co., 118 Kan. 116, 233 P. 1019, 1020; Rounds v. Delaware etc. R. Co., 64 N.Y. 129, 21 Am. Rep. 597; Marion v. Chicago etc. R. Co., 64 Iowa 568, 21 N.W. 86; 39 C. J. 1283.)

If a master chooses to perform his duty of due care for the protection of others through a servant, it is immaterial whether the servant's failure to perform that duty results from carelessness or inaction on the servant's part, or results from his temporarily abandoning his master's business to carry on some enterprise of his own.

In any event, the master is liable if the failure to perform such duty results proximately in an injury to another. (Feeney v. Standard Oil Co., 58 Cal.App. 587, 209 P. 85; Jefferson v. Derbyshire Farmers, Ltd., [1921] 2 K. B. (Eng.) 281, 13 A. L. R. 989; Hayes v. Wilkins, 194 Mass. 223, 120 Am. St. 549, 80 N.E. 449, 9 L. R. A., N. S., 1033; Radel Co. v. Borches, 147 Ky. 506, 145 S.W. 155, 39 L. R. A., N. S., 227; Corona Coal & Iron Co. v. White, 158 Ala. 627, 48 So. 362, 20 L. R. A., N. S., 958.)

The scope or course of a servant's employment includes what he was expressly authorized to do and also includes that which, with the master's knowledge and approval, he did do.

It may be proved by showing the circumstances attendant on his activities for the master, or by showing what he customarily did, or by showing his prior acts reasonably related in point of time to the act or acts in question.

Authority to do the acts in question may be inferred from proven facts, or it may be proven by direct evidence of authorization therefor; and even a custom of disregarding the master's rules, if such disregard be proven, is ground for inference that the master approved of such disregard.

The question of the scope of employment in this case was plainly one for the jury. (Brayman v. Russell & Pugh Lbr Co., 31 Idaho 140, 169 P. 932; Madill v. Spokane Cattle Loan Co., 39 Idaho 754, 758, 230 P. 45; 39 C. J. 1283, 1287, 1358; Staples v. Schmid, 18 R. I. 224, 26 A. 193, 19 L. R. A. 824; Davis v. Merrill, 133 Va. 69, 112 S.E. 628; Ferguson v. Reynolds, 52 Utah 583, 176...