Stevens v. Frost.

• Decision Date: 04 May 1943
• Citation: 32 A.2d 164
• Parties: STEVENS v. FROST.
• Court: Maine Supreme Court

32 A.2d 164

STEVENS

v.FROST.

Supreme Judicial Court of Maine.

May 4, 1943.

Exceptions from Superior Court, Androscoggin County.

Action by Edna Stevens against Perley E. Frost for injuries alleged to have been sustained by plaintiff as the result of negligence of defendant's employee. The presiding justice granted defendant's motion for a directed verdict, and the plaintiff brings exceptions.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Berman & Berman, of Lewiston, for plaintiff.

Robinson & Richardson and John D. Leddy, all of Portland, and Clifford & Clifford and Frank T. Powers, all of Lewiston, for defendant.

CHAPMAN, Justice.

The plaintiff claimed to have been injured by the negligence of an employee of the defendant. At the close of the plaintiff's presentation of evidence the defendant rested and moved for a directed verdict in his favor on the ground that the evidence presented would not justify a finding that the acts, negligent performance of which is complained of, were in the course of the employee's employment. The presiding Justice granted the motion and the plaintiff excepted. There is no other issue before this Court.

Whether an employee is acting in the scope of his employment may be a question of fact for a jury or a question of law for the Court. Whether there is evidence to justify triers of facts to so find is for the Court, and if there be no such evidence, it is the duty of the Court to direct a verdict. 39 C.J., Master and Servant, Sec. 1593; Zampella v. Fitzhenry, 97 N.J.L. 517, 117 N.J.L. 711, 24 A.L.R. 666. This is but an application of the principle that, if only one conclusion is justified, the Court will direct the jury to that conclusion. Heath v. Jaquith, 68 Me. 433; Burnham v. Hecker, 140 Me. -, 30 A.2d 801.

The plaintiff was a young woman, friendly with one Chester Frost. They went about more or less together. Frost's father, the defendant, was the proprietor of a garage engaged in repairing, buying and selling automobiles. The son was employed in the garage in a more or less general capacity and, during his father's absence from the garage, was in charge thereof. In addition to this work he was a salesman and had authority to use one of the cars of the garage whenever it was necessary to his employment. As salesman it was within the course of his employment to seek the names of prospective buyers, to contact them and make sales. He did not restrict this work to business hours, but was accustomed to mix business with pleasure and to obtain any available information and to secure customers whenever opportunity offered.

He met, through the plaintiff, a young couple, Mr. and Mrs. Brown, and the four became friendly and were more or less in each other's company. He testified that he learned that Mrs. Brown knew of a person who was interested in the purchase of an automobile and that, for the purpose of ascertaining the name of that person, he asked the plaintiff to arrange a party at the Browns'. The plaintiff arranged the party, as requested, and Frost purchased and took to the Browns' a spaghetti dinner. The party consisted of the plaintiff, himself and Mr. and Mrs. Brown. The plaintiff was conveyed to the party by young Frost in the automobile of the defendant, which he used in his employment. On direct examination young Frost testified that he obtained the name of the prospect at the party. On cross examination he testified that he did not obtain this name. He also stated that there was talk relative to Brown purchasing a car. After dinner the two couples played cards till some time after midnight, at which time he took the plaintiff to her home in the automobile. Arrived at her residence, the plaintiff alighted and when the car was started by Frost it skidded, struck her and inflicted the injuries complained of.

The plaintiff claimed that her injuries were received by reason of the negligent operation of the car and invokes the principle that the employer is responsible for the negligence of the employee, acting in the course of his employment.

This principle is of such general acceptance that only passing affirmation is necessary. 39 C.J., Master and Servant, Sec. 1446; Pollard v. Maine C. R. Co., 87 Me. 51, 32 A. 735; Copp v. Paradis, 130 Me. 464, 157 A. 228. The adjudicated cases have dealt with the applicability of the rule. This is the issue in the instant case.

For the plaintiff it is claimed that there is evidence to justify the finding that young Frost caused the party to be held, partly for the purpose of furthering the business in which he was employed by the defendant, namely, to secure the name of the prospective buyer, and that, at the party, he devoted some attention to business and that, inasmuch as he induced the plaintiff to arrange the party and to be present thereat, an essential part of the program was to transport her to the party and to her home when the party was at an end; and the conclusion is drawn that, in so doing, he was acting in the course of his employment.

To reach the conclusion that he was acting in the course of his employment in transporting the plaintiff to her home, it must appear that he had authority to so transport her. “The authority of an agent is the very essence and sine qua non of the relationship.” 2 Am.Jur., Agency, Sec. 85; Copp v. Paradis, supra; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326, 337, 5 L.Ed. 100. In that case the Court said: “But in the diversified exercise of the duties of a general agent, the liability of the principal depends upon the facts, 1. That the act was done in the exercise, and, 2. Within the limits of the powers delegated.” In Morris v. Brown, 111 N.Y. 318, 327, 18 N.E. 722, 725, 7 Am.St.Rep. 751, the Court said: “It is a general proposition that a master is chargeable with the conduct of his servant, only when he acts in the execution of the authority given him.”

It is to be borne in mind that the issue before us is not merely whether young Frost was upon his employer's business at the Browns' and, consequently, so acting in driving therefrom. It is true that one who is furnished a car by his employer in which to go to and return from the place where he performs a service for his employer is still in the course of his employment on his return, and the employer is generally responsible for his negligence during this time. But he is not so responsible to one who is riding in the car at the invitation of the employee if the employee is without authority to transport such person. Mechem on Agency, Sec. 1913; Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100, 52 Am.St.Rep. 523. In that case the Court, commenting on the difference in the relationship between the defendant and a person unauthorized to ride, and between the defendant and a person on the street, said: “The plaintiff does not stand in the same position as if he had been run over while crossing the road.” It follows that the driver of the Frost car might have been within the scope of his employment at the Browns' and also while driving therefrom, by reason of which the defendant would have been liable for the driver's negligence toward a person whom he met on the highway and, yet, not responsible to the plaintiff riding in the car. Murphy v. Barry, 264 Mass. 557, 163 N.E. 159; Bilow v. Kaplan, 164 A. 694, 11 N.J.Misc. 108; Raible v. Hygienic Ice & Refrigerating Co., 134 App.Div. 705, 119 N.Y.S. 138; Wilkinson v. Moore & Preston Coal Co., 79 N.H. 335, 109 A. 45. In the latter case the Court said:

“As the driver had no authority in fact or in law to invite the plaintiff to ride because doing so was not within the scope of his employment, his invitation, if given, was not the invitation of the defendants.”

In each of these cases the employee was driving a motor vehicle on the business of his employer and invited the person injured to ride for the purpose of assisting him in the work which he was performing for the employer, and in each case the Court held that the employee did not have authority to employ an assistant and make his employer responsible for negligence to the assistant. Mr. Mechem well says:

“As a general rule, however, it is entirely clear that one agent or servant has, from his mere position as such, no implied authority whatever to employ other agents or servants on his principal's account. What servants or agents the principal shall have (for and to whom he is to assume responsibility), how and when they shall be selected, upon what terms and subject to what conditions, limitations or control they shall operate, and the like, are questions of the greatest importance, which the principal must ordinarily have the right to determine for himself. Unless it can be shown, therefore, that the principal has expressly or by proper implication given the authority to someone else, it must be deemed to reside in him alone.” Mechem on Agency, Sec. 1042. (The italicizing is ours.)

Adhering to these general principles, does the record justify a finding that the employee was acting within the scope of his authority? We think not. The burden of proof is upon the plaintiff to prove the agency and the scope thereof. It cannot be presumed. 3 C.J.S., Agency, § 315; Stratton v. Todd, 82 Me. 149, 151, 19 A. 111; Castner v. Richardson, 18 Colo. 496, 33 P. 163; Schmidt v. Shaver, 196 Ill. 108, 63 N.E. 655, 89 Am.St.Rep. 250; American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 70 A. 867, 15 Ann.Cas. 641, 128 Am.St.Rep. 749; Blacher v. National Bank of Baltimore, 151 Md. 514, 135 A. 383, 49 A.L.R. 1366.

Authority of an agent may be ostensible or actual. Ostensible authority is that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing. There is nothing in the record that requires our inquiry in this respect.

Actual authority may be either express or implied. Express authority is...