Trinity Lutheran Church, Inc. of Evansville, Ind. v. Miller

• Decision Date: 27 July 1983
• Docket Number: No. 1-1282A359,1-1282A359
• Parties: TRINITY LUTHERAN CHURCH, INC. OF EVANSVILLE, INDIANA, Trinity Lutheran Guild of Trinity Lutheran Church, Inc. of Evansville, Indiana, Appellants (Defendants Below), v. Bernard N. MILLER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1099

451 N.E.2d 1099

TRINITY LUTHERAN CHURCH, INC. OF EVANSVILLE, INDIANA, Trinity Lutheran Guild of Trinity Lutheran Church, Inc. of Evansville, Indiana, Appellants (Defendants Below), v. Bernard N. MILLER, Appellee (Plaintiff Below).

No. 1-1282A359.

Court of Appeals of Indiana,

First District.

July 27, 1983.

Robert H. Hahn, Bamberger, Foreman, Oswald & Hahn, Evansville, for appellants.

John G. Bunner, Robert John, Bunner, John, Heathcotte & Hamilton, Evansville, for appellee.

ROBERTSON, Presiding Judge.

Trinity Lutheran Church (Church) appeals the verdict rendered in favor of Bernard Miller (Miller). Miller initiated this action against the Church, the Ladies Guild of the Church (Guild), and William Goodman (Goodman) to recover for the injuries he sustained when Goodman's automobile struck his motorcycle.

We affirm.

The Guild has maintained a Christmas program for sick and infirm members of the congregation who are confined in hospitals or nursing homes. During the Christmas holidays, Guild members bake cookies, place them in baskets made of Christmas cards, and deliver the baskets to the shut-in members of the Church. On December 15, 1980, Goodman, accompanied by his wife Valeda, a Guild member, was driving his automobile while in the process of delivering cookies. He turned his vehicle into Miller's motorcycle. As a result of the accident, Miller's left leg was amputated above the knee.

The facts established the Guild prepared a list of shut-in members who were to receive cookies, designated which Guild members would deliver cookies to specified recipients, and checked to see whether the shut-ins actually received the cookies. The Guild picked the delivery date. Goodman had participated as a driver in the program for four or five years previously and the Guild knew Goodman would be driving his wife. Goodman testified his only purpose in driving on the day of the accident was to deliver the cookies, the Guild told him where to go, and he would have gone to any address which it had directed. He further testified "he was doing it for the Church-doing it for everyone", and that he would not have delivered the cookies if he had not been so instructed.

The Guild has maintained its Christmas program for approximately fifty years. The Church's annual report included a description of the Guild's cookie program. The parties stipulated the cookie bake and delivery were the work of the Guild. The Church conceded during oral argument that it was liable for the Guild.

Miller contends the Church is liable based upon the doctrine of respondeat superior. The following definitions will be helpful for this opinion:

(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master.

Restatement of Agency 2d, Vol. 1, Sec. 2, p. 12.

The Restatement's definition has been recently employed in Lafayette Bank and Trust Co. v. Price, (1983) Ind.App., 440 N.E.2d 759, where it states:

Agency is the relationship which results from the manifestation of consent by the person to another that the other shall act on his behalf and subject to his control, and consent by the others so to act. Restatement of Agency, Vol. 1, Sec. 1, p. 7.

440 N.E.2d at 761.

Generally, the doctrine of respondeat superior imposes liability upon a master for the torts of his servants committed while acting within the scope of the servant's employment. State v. Gibbs, (1975) 166 Ind.App. 387, 336 N.E.2d 703. This doctrine is further explained in Gibbs v. Miller, (1972) 152 Ind.App. 326, 283 N.E.2d 592 where it states:

The general test in determining the existence of a master-servant relationship is the right to direct and control the conduct of the alleged servant at the time the negligent act occurred. In Indiana the phrase 'right to control' is used not in a specific sense but in a general sense. It refers only to the right and not to the exercise of control over the servant. This is especially true where the work is such as to not demand a great deal of supervision. (Original emphasis, citations omitted.)

152 Ind.App. 329, 330, 283 N.E.2d 592.

Furthermore, whether a servant is acting within the scope of his employment at the time of an accident is a question of fact to be determined in light of the evidence of each particular case. State v. Gibbs, supra.

The Church argues the evidence is insufficient to support the verdict. Our standard of review for sufficiency claims is well established. We will not reweigh the evidence nor judge the credibility of witnesses, but will examine that evidence most favorable to the appellee and the reasonable inferences to be drawn therefrom. The jury's verdict will be set aside only where there is a total lack of evidence or where it is contrary to uncontradicted evidence. Sutton v. Roth, Wehrly, Heiny, Inc., (1981) Ind.App., 418 N.E.2d 229.

The Church argues the evidence is insufficient to support the verdict because there is no evidence that Goodman agreed to subject himself to the Guild's control. It alleges Miller is attempting to utilize the doctrine of respondeat superior based solely upon Goodman's membership in the Church.

The Church contends there is no direct evidence of an agreement between the Guild and Goodman. However, agency may arise by implication and be shown by circumstantial evidence. Downham v . Wagner, (1980) Ind.App., 408 N.E.2d 606. A master may have a gratuitous servant. Restatement of Agency 2d, Vol. 1, Sec. 225, p. 497 . ¹ The duty of an agent acting gratuitously is the same as other agents. Swift v. White, (1964) 256 Iowa 1013, 129 N.W.2d 748.

Our examination of the evidence most favorable to Miller, coupled with all reasonable inferences to be drawn therefrom, leads to a conclusion that the evidence was sufficient for the jury to find Goodman subjected himself to the control of the Guild. Goodman drove at the invitation of a Guild member, he had participated as a driver previously, and the Guild's officers knew he would be driving . The Guild picked the delivery date, provided the cookies, organized the list of shut-in members who were to receive cookies, and chose the people to whom Goodman was to deliver cookies. Goodman testified the Guild told him where to go, his only purpose in driving was to deliver the cookies, he would have gone to any address which the Guild directed, and he would not have delivered the cookies if he had been so instructed. The test for determining a master servant relationship is whether one has the right to direct and control the conduct of the alleged...