Van Vranken v. Fence-Craft

• Decision Date: 24 July 1967
• Docket Number: No. 9829,FENCE-CRAFT and M,9829
• Citation: 91 Idaho 742,430 P.2d 488
• Parties: Willie E. VAN VRANKEN, Plaintiff-Appellant, v.yrl Bray, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 488

430 P.2d 488

91 Idaho 742

Willie E. VAN VRANKEN, Plaintiff-Appellant, v. FENCE-CRAFT and Myrl Bray, Defendants-Respondents.

No. 9829.

Supreme Court of Idaho.

July 24, 1967.

Paul C. Keeton and James E. Scanlan, Lewiston, Idaho, for appellant.

Clements & Clements, Lewiston, for respondent Fence-Craft.

Warren F. Gardner, Orofino, for respondent Bray.

McFADDEN, Justice.

This action was instituted by Willie E. Van Vranken, appellant, for damages for the death of his fifteen-year-old daughter, and for personal injuries and property damage sustained by him as a result of an automobile accident which occurred October 31, 1963, on U. S. Highway No. 95, near the easterly city limits of Lewiston, Idaho. The accident occurred when appellant's 1950 Ford automobile, Driven by him and in which appellant, his ten-year-old son and fifteen-year-old daughter, decesed, were riding, struck the automobile owned and operated by defendant Myrl Bray.

In his amended complaint, appellant alleged that at the time of the accident, Bray was operating his vehicle for and on behalf of respondent Fence-Craft, a California corporation engaged in Idaho in the buying of wood products for the making of fences. The amended complaint in substance alleged that Bray was the agent, servant, and employee of Fence-Craft and was operating his car within the scope of his employment by Fence-Craft at the time of the accident.

The cause was tried to the jury on issues framed by a pre-trial order. At the close of appellant's case, respondent Fence-Craft moved for an involuntary dismissal as to it (I.R.C.P. 41(b)) on the grounds:

'* * * that the evidence taken as a whole and every reasonable inference that could be drawn therefrom by reasonable men does not support * * * the allegation of the complaint that the defendant Bray was in fact an agent, servant or employee of the defendant Fence-Craft, nor is there any evidence which can support the finding by reasonable men that the defendant Bray was at the time of the accident within the scope or course of any relationship of agency or master and servant at the time of the collision in question.'

The trial court granted this motion and dismissed the case as to respondent Fence-Craft. Following dismissal of Fence-Craft, Bray presented his evidence, and the case was submitted to a jury which returned a verdict in favor of appellant in the sum of $10,000; judgment accordingly was entered against Bray, from which judgment no appeal has been taken. Although Bray has been denominated in the title as a respondent, in fact, he is not involved in any of the issues presented here. This appeal was taken only from the order and judgment of dismissal of the case as to respondent Fence-Craft.

Respondent Fence-Craft contends that the action of the trial court in granting the motion to dismiss as to it was correct on two grounds: first, the record fails to disclose any evidence of agency, master-servant, or employer-employee relationship between Bray and Fence-Craft that would authorize the application of the doctrine of respondeat superior, and further at the time of the accident, even if it be found such relationship did exist, the record affirmatively shows Bray, at the time of the accident, was acting outside the scope of employment; secondly, the pre-trial order reserved such question to the court for decision as a matter of law.

The second of Fence-Craft's contentions will first be considered, i. e., that by virtue of the framing of the issues in the pre-trial order, which order was signed and approved by all the parties, the issues on this appeal were reserved for the determination by the trial court, and thus were removed from the province of the jury regardless of the development of the evidentiary facts of appellant's case. Specifically Fence-Craft points to the following portion of the pre-trial order:

'The contested issues of law are as follows:

A. Determination of proximate cause of the accident in question and whether the accident is attributable to the negligence of the defendant Myrl Bray or the contributory negligence of the plaintiff Willie E. Van Vranken;

B. Whether or not at the time and place of the accident the defendant Myrl Bray was, as a matter of law, the agent, servant and employee of Fence-Craft and engaged in some purpose of duty in the furtherance of his employment with Fence-Craft.'

Although it is permissible under I.R.C.P. 38(c) to demand trial by jury as to part of the issues only, it is difficult to agree with Fence-Craft as to the particular issues set forth in subparagraph B above, that he parties thereby intended to waive a trial by jury on those issues. Both appellant in its amended complaint and respondent Fence-Craft in its answer endorsed a general request for trial by jury. I.R.C.P. 38(c) provides in pertinent part:

'In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. * * *.'

I.R.C.P. 39(a) provides in part:

'* * *. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury * * *.'

The right to trial of issues by jury rests on a constitutional base. Idaho Const. Art. 1, § 7 (Farmer v. Loofbourrow, 75 Idaho 88, 267 P.2d 113, decided under former, I. C. § R10-301). The waiver of such right cannot be made or enforced unless it appears to have been made in conformity with existing statute or rule, and not by implication. Farmer v. Loofbourrow, supra; Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22. See also: Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937), (where the United States Supreme Court stated: '(T)he right of jury trial is fundamental(;), courts indulge every reasonable presumption against waiver.'); Lee Wing Chau v. Fusae K. Nagai, 353 P.2d 998 (Hawaii, 1960); Mozes v. Daru, 4 Ariz. App. 385, 420 P.2d 957 (1966); 5 Moore's Fed.Practice 38.43, p. 335; 31 Am.Jur., Jury, § 47, p. 51; 50 C.J.S. Juries § 110, p. 821.

In the pre-trial order it is also stated: 'The contested issues of fact are the position, course and speed of the vehicles immediately prior to and at the time of the collision.' Immediately following that statement appeared the so-called issues of law, set out above. Even though they may have been denominated as 'issues of law,' in truth such issues are questions of mixed law and fact, inasmuch as the issues of negligence, contributory negligence, proximate cause (mentioned in Sub. A), and issues of agency, master-servant relationship and scope of duty or employment (mentioned in Sub. B), are normally issues to be submitted to the jury for resolution. That this is the viewpoint of the trial court and the respective parties is evidenced by the general verdicts submitted, the instructions requested by the respective parties and the instructions given by the court, none of which limited the factual issues to 'position, course and speed of the vehicles immediately prior to and at the time of the impact and collision.' It is our conclusion that there was no waiver of jury trial by the appellant on the issue of agency and scope of employment by reason of the pre-trial order.

Having determined that there was no waiver by appellant to right to trial by jury, the next question is whether the trial court erred in its dismissal of the case against Fence-Craft.

Two essential elements to be proven by a plaintiff in a negligence action for damages allegedly caused by a defendant's alleged servant in the negligent operation of an automobile owned by the servant are: (1) that in fact a master-servant relationship existed and (2) that the agent was acting within the scope of his employment or in furtherance of the defendant's business at the time of damage or injury. Hayward v. Yost,72 Idaho 415, 242 P.2d 971. In order to adduce evidence bearing of these issues, appellant called Myrl Bray, Fence-Craft's purported agent, for cross examination under the statute. Bray testified extensively to the character of his relation with the respondent Fence-Craft and the purposes of his trip to Lewiston. The following facts appear from his testimony both on cross examination under the rule and on the subsequent redirect examination.

Prior to 1962, Bray had been independently engaged in buying fence posts and selling them at a profit to Penta Post, an Idaho treating plant, and, later, to Fence-Craft, respondent herein. In 1962 or 1963, the nature of Bray's relationship with Fence-Craft changed and, after some negotiation, he became manager of a new picket mill built by Fence-Craft just west of Weippe, Idaho. Bray participated in the construction of the new mill, and during the period of construction, he was paid on an hourly basis. Since then, he and the employees of the mill under his supervision have been paid on a 'piece-work' basis, i. e., in terms of te production of the mill. Bray and all of the other employees of the mill, numbering about six, are paid through the Fence-Craft payroll offices in California.

Mr. Bray's duties as mill manager included supervision of the mill's employees, over whom he was given the authority of hiring and firing, buying timber in the field, seeing that it was processed and shipped, and getting 'any parts or repairs or anything.' The Fence-Craft mill owned no vahicles other than a lift truck and, consequently, Bray used his own auto (the 1950 Buick involved in the accident) 'for my own use and for company use.' Bray continued to buy posts for Penta Post, and in so doing, was able to secure a supply of material necessary for the Fence-Craft operation, but unusable by Penta Post. He testified affirmatively he did not use this car for the business purposes of anyone...