Thurston v. Morrison
| Decision Date | 18 May 1962 |
| Docket Number | No. 2570,2570 |
| Citation | 141 So.2d 291 |
| Parties | Beatrice J. THURSTON, a Widow, Appellant, v. Roger I. MORRISON, Janice Morrison, and Berniece T. Morgan, Executrix of the Estate of Chester G. Morgan, Deceased, Appellees. |
| Court | Florida District Court of Appeals |
George L. Knight of Hyzer, Knight & Lund, Miami, for appellant.
James C. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Berniece T. Morgan.
This is an appeal from a final judgment in favor of the defendants in a negligence action in which the appellant was the plaintiff below and the appellee's (Berniece T. Morgan) decedent was one of the defendants below. During the pendency of this appeal the defendant, Chester G. Morgan, died, and by order of this court his executrix became a party appellee in his stead. Appellees Morrison take no part in this appeal.
The defendant made a motion for directed verdict at the conclusion of all the testimony and the trial court deferred ruling on the motion until the verdict of the jury was in. The case resulted in a mistrial and thereafter the trial court granted judgment in accordance with defendant's motion for directed verdict.
The plaintiff, in her amended complaint, brought suit for the death of her husband, wherein she alleged that at the time of the collision Roger I. Morrison was the agent and/or employee of the defendant, Chet Morgan Motor Company, and was performing his regular duties as such agent and/or employee and was acting within the scope of his employment. Chet Morgan Motor Company filed its answer and denied that Roger I. Morrison was the agent of or was in the performance of any duties for Chet Morgan Motor Company, and, in the alternative, alleged that if the said Roger I. Morrison had acted as its agent or employee of the defendant at any time on November 25, 1959, that the duties had terminated and ceased prior to the happening of the accident, or, in the alternative, that he had deviated wholly from the course or scope of his employment prior to the happening of the accident. The accident occurred at approximately 5:00 P.M. on November 25, 1959, on State Road No. 80, approximately 21 miles west of Clewiston. State Road No. 80 is a direct route between LaBelle and Clewiston.
Morrison was an outside salesman of Chet Morgan Motor Company, for which he received the sum of $500.00 a month, $300.00 for salary and $200.00 for expenses. There is some evidence in the record concerning his salary and expenses, but that was conflicting evidence.
Ordinarily Chet Morgan Motor Company furnished a demonstrator automobile for the use of Morrison, and on November 24, 1959, while passing through LaBelle he stopped to see a customer who had previously purchased two cars from Chet Morgan. From his conversation with this prospective purchaser Morrison had been advised that the former wished to trade in a 1955 Chevrolet, and especially mentioned being interested in a six cylinder stick shift Chevrolet. Morrison knew that Chet Morgan Motor Company did not have a car such as the one the prospective purchaser desired, but he also knew that his wife had a car, which she had purchased at wholesale price from Chet Morgan Motor Company, and hence, he informed the purchaser that he would come over the next day and bring that car with him. Morrison lived in Clewiston, and on the 25th day of November, 1959, the day of the accident, Morrison went to the place of business of Chet Morgan Motor Company in Clewiston and from there he drove a demonstrator car to the school where Mrs. Morrison worked, left it for her personal use, took the six cylinder stick shift Chevrolet and delivered it to a gas station to have it polished and timed. Also, on the morning of November 25, 1959, he had a conference with his immediate superior, Audie Hooks, and a fellow-salesman named Finuff, at which time it was agreed that Morrison would return on November 25 at around 5:00 P.M. and go with Finuff to South Bay in an effort to sell a car to a prospect there. At that time Morrison also discussed his proposed trip to LaBelle with Hooks and specifically mentioned that he was taking his wife's car and would discuss other cars with the prospective purchaser. He left Clewiston at approximately 10:00 A.M. on November 25, 1959, and arrived in LaBelle at around 11:00 A.M. He immediately contracted his prospective purchaser, Burchard, and discussed with him until about 12:00 noon, not only his wife's car, but also several other cars that were owned by Morrison's employer. At noontime Morrison and Burchard drove to a bar room in LaBelle where Morrison purchased some liquor which the both of them drank. Thereafter they had lunch and Morrison drove back to the place where he had picked up Burchard. During most of this time both of them had talked about several different cars and the discussion was the difference in cash between the car the prospective purchaser had to trade and the various cars mentioned. Morrison left Burchard between 1:30 P.M. and 2:00 P.M. and went back to LaBelle and partook of more liquor. As a result of injuries he sustained in the subsequent accident Morrison could not detail at the trial what he had been doing during the afternoon of the 25th, but in all events it was some time around 4:00 P.M. that he proceeded on State Road No. 80 in the direction of Clewiston and the accident occurred around 5:00 P.M., twenty-one miles west of Clewiston on the same road. The evidence clearly showed that there was a head-on collision between the car that Morrison was driving and the automobile that was being driven by George Thurston, Deceased.
The points of law determinative of the correctness vel non of the grant of a directed verdict for the defendant can be stated as: 1) was Morrison acting in the course of his employment in his trip to LaBelle, and, 2) if so, whether or not Morrison had, while in LaBelle, deviated from the course of his employment.
If the evidence showed that Morrison's sole purpose in taking the trip to LaBelle was for the purpose of selling his wife's car and nothing more, the granting of a directed verdict for the defendant would have been proper, but the facts do not justify this conclusion. Morrison was in the employ of appellee's decedent and as such employee he had learned of the prospect of selling a car to the particular person whom he went to see in LaBelle. The...
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