Estes v. Anderson Oil Co.

• Decision Date: 05 June 1931
• Docket Number: No. 13742.,13742.
• Citation: 93 Ind.App. 365,176 N.E. 560
• Parties: ESTES v. ANDERSON OIL CO. et al.
• Court: Indiana Appellate Court

93 Ind.App. 365

176 N.E. 560

ESTES

v.ANDERSON OIL CO. et al.

No. 13742.

Appellate Court of Indiana, in Banc.

June 5, 1931.

Appeal from Henry Circuit Court; J. R. Hinshaw, Judge.

Suit by Bettie Estes against the Anderson Oil Company and another. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with instructions.

For former per curiam opinion, see 171 N. E. 925.

Jos. Morgan and Kane, Blain & Hollowell, all of Indianapolis, for appellant.

Bagot, Free & Bagot, of Anderson, for appellees.

KIME, J.

A rehearing having been granted after a per curiam affirmance (171 N. E. 925), this case is again before the court.

Suit was brought by the appellant against Anderson Oil Company and Wm. R. Wood to recover for personal injuries arising out of an automobile collision. At the close of the plaintiff's case, the appellee Anderson Oil Company filed a motion for an instructed verdict. This motion was sustained, and the jury instructed that at the proper time they would be instructed to return a verdict for Anderson Oil Company. The trial proceeded as to Wm. R. Wood, the jury returning a verdict as against him for $5,500. Motion for a new trial was overruled, and judgments entered on the verdicts. Vacation appeal properly assigning as error the action of the trial court in directing a verdict and its refusal to grant a new trial for newly discovered evidence.

Appellant contends that there existed between the appellees the relation of principal and agent, master and servant, employer and employee, or that the doctrine of respondeat superior applies.

The evidence as disclosed by appellant's brief, which is unchallenged by the appellee, shows that immediately after the accident appellee Wood made a telephone call; that immediately thereafter a Mr. Jones of the Anderson Oil Company came to the scene of the accident. The evidence further shows that Mr. Jones was president of the Anderson Oil Company; that the truck has a sign “Anderson Oil Co.” on it in several places. Fleishman v. Ice & Fuel Co., 148 Mo. App. 117, 127 S. W. 660;Polk Sanitary Milk Co. v. Qualiza (Ind. App. 1930) 172 N. E. 576. The name of Wood was not on the truck. Wood said in answer to a question, “Probably three years, seems to me as though I worked for them two years.” He was there referring to the Anderson Oil Company. The Anderson Oil Company fixed the price at which he (Wood) could sell the gasoline. He could only sell to a territory assigned him by the Anderson Oil Company. He could not sell in any other territory. On the particular trip that this accident occurred, he was delivering an order that had been phoned to the Anderson Oil Company direct. When a delivery was made, the purchaser did not pay Wood, but would pay the Anderson Oil Company. Orders were taken on blanks of the Anderson Oil Company and charges were made on other blanks of theirs.

[1] In the case of Gipe, Adm'x, v. Pittsburgh, etc., R. Co. (1907) 41 Ind. App. 156 at page 161, 82 N. E. 471, 474, this court by Myers, J., said: “On the question we are now considering, the burden of the issue was upon appellant, and, regarding the right of the trial court to direct a verdict, in Westfall v. Wait, 165 Ind. 353, 358, 73 N. E. 1089 , it is said: ‘If the evidence was of such a character as to make it clear to the court that a verdict, if returned for appellant, on whom the burden of the issue rested, could not stand, then it became the duty of the court to direct a verdict for appellees, and there could be no error in so doing’-citing cases. See, also, Goode v. Elwood Lodge, etc. [1903] 160 Ind. 251, 256, 66 N. E. 742;Williams v. Resener [1900] 25 Ind. App. 132, 56 N. E. 857;Burns v. Smith [1902] 29 Ind. App. 181, 64 N. E. 94, 94 Am. St. Rep. 268. In respect to the right of the trial judge to direct a verdict against the party on whom the burden rests, the court in Dunnington v. Syfers [1901] 157 Ind. 458, 462, 62 N. E. 29, said: ‘The rule to the effect that, where there is a “scintilla” of evidence the trial court must permit the case to be submitted to the jury for their determination, does not prevail in this state.’ Oleson v. Lake Shore, etc., R. Co. [1896] 143 Ind. 405, 42 N. E. 736, 32 L. R. A. 149;Meyer v. Manhattan Life Ins. Co. [1896] 144 Ind. 439, 43 N. E. 448;Diezi v. Hammond Co. [1901] 156 Ind. 583, 60 N. E. 353.”

The Supreme Court, in Davis v. Mercer Lumber Co. (1905) 164 Ind. 413 at page 425, 73 N. E. 899, 904, by Jordan, J., said: “It is a settled rule in this state that the right of the court to direct a verdict, as it did in this case, can only be upheld where, after a consideration of all of the evidence most favorable to the plaintiff, together with all the reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to the plaintiff's right of action. Purcell v. English [1882] 86 Ind. 34, 44 Am. Rep. 255;Gregory, Adm'r, v. Cleveland, etc., R. Co. [1887] 112 Ind. 385, 14 N. E. 228;Wolfe v. McMillan [1889] 117 Ind. 587, 20 N. E. 509;Diezi v. Hammond Co. [1901] 156 Ind. 583, 60 N. E. 353;Wagner v. Weyhe [1905], at this term 73 N. E. 89, and cases there cited.”

This case was cited with approval and followed in the case of Saylor v. Obendorf (1909) 45 Ind. App. 436, 89 N. E. 600, 601, as follows: “The question is: Did the court err in peremptorily instructing the jury? The answer to this question requires us to consider the evidence, keeping in mind that this particular action of the court ‘can only be upheld where, after a consideration of all the evidence most favorable to plaintiff, together with all reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to the plaintiff's right of action.’ Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899.”

The law very zealously protects one against whom a motion for a directed verdict is addressed. After saying that such motion is equivalent to a demurrer to the evidence, our courts have held “that if there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn.” Lorber v. People's Motor Coach Co. (1929) 89 Ind. App. 139, 164 N. E. 859, 172 N. E. 526; quoting from Curryer v. Oliver (1901) 27 Ind. App. 424, 60 N. E. 364, 61 N. E. 593 and authorities there cited.

[2] Where all the rights, duties, and obligations existing between the parties are couched in a written contract, the construction and meaning of that contract is a question of law for the court, and is not a question of fact for a jury to determine. Mondamin Meadows Dairy Co. v. Brudi (1904) 163 Ind. 642, 72 N. E. 643;Robbins v. Spencer (1889) 121 Ind. 594, 22 N. E. 660.

[3] In case of ambiguity in a written contract, or in case of construction thereof by the parties themselves, disclosed by their actions and conduct in connection therewith, parol proof may be offered explaining the ambiguity, and also establishing such construction, and in such event the question of the meaning of the contract in the light of such parol evidence becomes a question of fact to be determined by a jury. Robbins v. Brazil Syndicate R. & B. Co. (1917) 63 Ind. App. 455 at page 463, 114 N. E. 707;Olds Wagon-Works v. Coombs (1890) 124 Ind. 62, 24 N. E. 589.

But our courts have had this to say as to this rule.

“The contention of counsel is that, the rule being a written instrument, it was the province of the court, and not of the jury, to interpret it. We readily concede the general rule to be as affirmed by counsel, but there are exceptions as well founded as the rule itself.

“The exception applicable here is well stated by Woods, J., in Reissner v. Oxley [1881] 80 Ind. 580, in these words:

“‘The right of parties to put an interpretation upon their own contracts, even to the extent of doing away, practically, with the ordinary and plain meaning of terms, cannot well be denied, so long as their interpretation does not result in a contract which for some reason is in itself unlawful; and the cases are numerous and consistent, which permit a resort to proof of the circumstances or situation of the parties, when their contract was made, and of their transactions under it, when its terms are of doubtful or ambiguous meaning for the purpose of arriving at the true intention, and, when this is done, the question must be left to the decision of the jury substantially as was done in this instance.’ It has been repeatedly held by this court that in cases where the writing is indefinite, or the language ambiguous, or of doubtful application, the practical interpretation given it by the parties themselves may be shown by parol, and that the construction and application given by them should be received with great, if not controlling weight. Gaylord v. City of Lafayette [1888] 115 Ind. 423, 17 N. E. 899;Ralya v. Arkins & Co. [1901] 157 Ind. 331, 335, 61 N. E. 726;Burke v. Mead [1902] 159 Ind. 253-258, 64 N. E. 880;Ditchey v. Lee [1906] 167 Ind. 267-275, 78 N. E. 972.” Cleveland, etc., R. Co. v. Gossett, 172 Ind. 525 at page 546, 87 N. E. 723, 732.

[4][5][6] In this case the evidence consisted both of a written contract between the appellees and parol evidence of their conduct. Where there is a written contract between the alleged principal and agent, this does not necessarily govern the question, and the relation of respondeat superior may depend entirely upon the conduct of the parties, for persons cannot be in fact principal and agent or master and servant and the superior escape liability by going through the form of a written contract. So the court here should have considered the entire situation and all the circumstances, including the written contract, and, if from such a...