Tri-state Coach Corp. v. Walsh

• Decision Date: 08 September 1948
• Citation: 188 Va. 299,49 S.E.2d 363
• Parties: TRI-STATE COACH CORPORATION et al. v. WALSH.
• Court: Virginia Supreme Court

188 Va. 299

49 S.E.2d 363

TRI-STATE COACH CORPORATION et al.

v.WALSH.

Supreme Court of Appeals of Virginia.

Sept. 8, 1948.

Error to Corporation Court for City of Bristol; Jos. L. Cantwell, Jr., Judge.

Action by Rodney Walsh against the Tri-State Coach Corporation and another to recover damages for personal injuries and property loss. Judgment for plaintiff, and defendants bring error.

Affirmed.

Before HUDGINS, C. J, and EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Fred B. Greear, of Norton, for plaintiffs in error.

Charles F. Hagan, of Bristol, for defendant in error.

MILLER, Justice.

Rodney Walsh, hereinafter called plaintiff, instituted this action against Tri-State Coach Corporation, referred to herein as Tri-State, and James Howard Mooney, who will be called Mooney, to recover damages for personal injuries and property loss. Verdict was returned against both defendants for $400 and judgment entered therefor.

The record discloses the following facts: Tri-State was owner of a bus line for the transportation of passengers between Bristol, Virginia, and other points. Mooney was a regular employee of that corporation, his duties being those of a bus driver.

Piedmont Street, in Bristol, intersects State Street at right angles. Near to and where it enters State Street, it is marked for three lanes of traffic. The right lane is for traffic which is to turn right on State Street; the middle lane for that proposing to cross the intersection or turn left, and the left lane is used by vehicles coming out of State Street and turning right into Piedmont Street. A signal light controls traffic at the intersection.

About seven o'clock on the evening of February 14, 1947, Mooney, on his regular route between Bristol and Gate City, Virginia, drove a bus belonging to Tri-State along Piedmont Street towards State Street with intention of making a right turn thereon.

Due to the length of the bus and to better effect the rather sharp right turn that had to be made, he drove some distance away from the curb, thereby placing the left wheels in the center lane. As he immediately approached and reached the intersection, the bus was astride the line between the center and right traffic lanes. It was stopped at the intersection by a red traffic light. A space wider than an automobile was left between the bus and the right curb.

At this time, plaintiff, who was driving his automobile in the same direction along Piedmont Street, approached the intersection in the extreme right lane. This placed his automobile between the right side of the bus and the curb. It appears that plaintiff reached the intersection about the sametime as the bus or momentarily thereafter. He was also stopped by the traffic light and the two vehicles were about two to three feet apart.

With the vehicles standing awaiting the change in the traffic light, plaintiff's brother, who was to meet him on that corner, walked toward the automobile with the intention of entering it. Before he entered the car, the traffic light flashed green and the bus undertook to move forward and make the right turn in front of the stationary automobile. Plaintiff and his brother become apprehensive that the turning bus would strike the left fender, hence plaintiff called to Mooney to hold the bus a minute as "he was going to hit my fender * * *."

Before completing the turn, Mooney stopped the bus and, in opening the front door, struck plaintiff's car. Plaintiff thereupon exclaimed, "Go easy on my fender." Mooney alighted and looked at his front and rear signal lights. He then came to the left window of plaintiff's automobile, engaged in an argument with him about the signal lights on the bus, his place in the road, and which vehicle had crowded the other. The turn had not been wholly negotiated and the vehicles stood close together. While the vehicles occupied these positions, plaintiff and Mooney continued to argue about their location, the signal lights on the bus indicating the intention to turn, their respective rights in the road, etc. Mooney thereupon struck plaintiff in the face, rendering him momentarily unconscious and causing his nose to bleed rather profusely. Due to the blow, plaintiff lost control of his automobile which was in gear. It started forward, turned slightly to the right, mounted the curb, crossed the sidewalk and struck a brick building, thereby causing considerable damage to the car.

Mooney admits the argument about the location of the vehicles in the street, the signal lights on the bus, and plaintiff's assertion that Mooney had crowded in on him. Mooney says, however, that plaintiff called him a liar and that is why he struck him. Plaintiff denies having used that language. Yet if such were said, it is evident that it grew out of and was a part of the contention regarding the operation of the respective motor vehicles, their then rights on the road, and the possible danger to plaintiff's automobile if Mooney moved forward in the direction already partially undertaken, viz., a short right turn with a long vehicle in dangerous proximity to plaintiff's car.

The case is before us upon a verdict for the plaintiff upon which judgment has been entered. All conflicts in the testimony have been settled in his favor and he is entitled to all just inferences deducible therefrom. Walker v. Memorial Hospital, 187 Va. 5, 45 S.E.2d 898. Fortified by the jury's verdict and judgment of the court, he also occupies the most favored position known to the law. Neal v. Spencer, 181 Va. 668, 26 S.E.2d 70.

Defendants rely upon several assignments of error. Briefly stated, they are as follows:

Tri-State contends that:

(1) Mooney was acting beyond the scope of his employment when he inflicted the blow upon the plaintiff and thus defendant corporation is not liable for the ensuing damages.

(2) The court erred in giving Instruction 4 on behalf of the plaintiff.

Both defendants contend that:

(3) The court was in error in giving Instruction 3 on behalf of the plaintiff.

(4) The verdict was excessive.

(5) The court should not have admitted certain testimony in rebuttal.

It must be remembered that the altercation arose about the manner in which Mooney was operating the bus. It occurred while he was undertaking to make a right turn which plaintiff was apprehensive would bring the bus in collision with his car.

Both drivers claimed rights on the road and the tort was inflicted by Mooney in asserting his claim and in executing the service for which he was employed. The blow was struck before the turn was negotiated, and it was a part of Mooney's contention that he was rightfully in position on the highway to make such turn. He insisted that the signal lights having in-dicated his intention to turn, therefore he was entitled to turn in front of the plaintiff's car. In furtherance of this intention and claimed right so to operate the bus though its proximity gave concern to plaintiff, Mooney committed the tort. Both vocal insistence and physical force were used in the attempt to complete the movement of the bus undertaken by Mooney.

The master's liability is not wholly dependent upon the motive of the employee in committing the tort. It is determined by ascertaining whether his actions were in furtherance of the duties of his employment and in execution of the service entrusted to him.

Anger, malice, and vindictiveness-- frailties of human nature--are among the risks imposed upon the master in the employment of his servants. When these emotions are indulged in by the servant, even to the extent of committing a wilful tort, if the ultimate purpose to be thereby attained is in furtherance of the servant's duties and in execution of the master's business entrusted to him, the master is liable for the resultant damage.

Though this was an intentional and wilful tort, the jury was justified in concluding that it was in furtherance of the master's business and within the course of the employment.

Had the turn been wholly negotiated into State Street thus avoiding the real or apparent danger of collision, and Mooney had then abandoned the business of his master and committed the tort solely to gratify his personal feelings and not to accomplish or effect his insistence upon his right of movement, it would not have been within the scope of his employment; but here it was committed in the very act of negotiating the turn. It was part and parcel of Mooney's insistence and contention that he was properly operating the bus and intended to insist upon his rights in the highway. Because his demands were physical and emphatic renders it no less in furtherance of the master's business.

We find the modern and better view stated thus in 35 Am.Jur., Master and Servant, sec. 560, p. 994:

" * * * The courts, however, have long since departed from the rule of nonliability of an employer for wilful or malicious acts of his employee. Under the modern view, the wilfulness or wrongful motive which moves an employee to commit an act which causes injury to a third person does not of itself excuse the employer's liability therefor. The test of liability is not the motive of the employee in committing the act complained of, but whether that act was within the scope of the duties of employment and in the execution of the service for which he was engaged. It may not be inapposite to note that a corporation is deemed to be responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency although the particular act was wilful and malicious. This does not mean that the motive which actuated the employee is of no importance. Under some circumstances, at least, the motive which actuated the employee may be of prima facie importance."

In discussing the same subject, this is said in 3 C.J.S., Agency, § 255, p. 187:

"In order to determine whether an agent's tort was within the scope of his employment, the proper inquiry is: Was the act done in the course of...