Ward v. Teller Reservoir & Irrigation Co.

• Decision Date: 01 November 1915
• Docket Number: 8110.
• Citation: 153 P. 219,60 Colo. 47
• Parties: WARD v. TELLER RESERVOIR & IRRIGATION CO.
• Court: Colorado Supreme Court

153 P. 219

60 Colo. 47

WARD v. TELLER RESERVOIR & IRRIGATION CO.

No. 8110.

Supreme Court of Colorado, En Banc.

November 1, 1915

Error to District Court, Pueblo County; C. S. Essex, Judge.

Action by Claude E. Ward against the Teller Reservoir & Irrigation Company. Judgment for defendant, and plaintiff brings error. Reversed.

M. J. Galligan, of Pueblo, for plaintiff in error.

Goudy Twitchell & Burkhardt and E. P. Steinhauer, all of Denver for defendant in error.

SCOTT J.

The automobile of the defendant company, driven by its chauffeur run down and injured the plaintiff, who was at the time attempting to board a street car that had stopped at the usual place for he purpose of discharging and receiving passengers. The chauffeur testifies that he came up from behind the car proceeding at the rate of eight to ten miles an hour; that he saw the car standing at the place where the accident occurred, when he was on the opposite side of the street which he afterward crossed; did not slacken his speed nor make an attempt to do so until within 15 feet of the plaintiff, when he applied the brakes, but too late to prevent the injury. When he first saw the car standing he could easily have stopped his machine, and thus avoided the accident. The plaintiff had stepped from the curb of the sidewalk, was just behind, and waiting the action of a lady who was also attempting to board the car. The action of the chauffeur under his own testimony was clearly negligent. The plaintiff did not see or hear the automobile approaching. The injuries were dangerous and permanent. Upon the trial of the cause a verdict was returned for the plaintiff in the sum of $5,000. Upon motion of the defendant, a new trial was granted, whereupon plaintiff's counsel announced to the court that he had made as strong a case as was possible under the state of facts; that he elected to stand upon the case as made and would pray a review by the Supreme Court.

The only serious question presented is as to the liability of the defendant for the negligent conduct of its chauffeur, the contention being that at the time of the accident the chauffeur was acting without the scope of his authority.

The rule that an employer is not bound to respond in damages for the negligent acts of his servant, unless such acts were done by the servant while acting within the scope of his authority, is well settled. But the difficult question to determine in such cases is whether the particular act or omission of the servant, causing the injury for which the master is sought to be held liable, was committed within the scope of the servant's employment. This can be determined by no rigid rule, but rather from the surrounding facts and circumstances of the particular case.

What was in the mind of the court in this case, and his reasons for granting the motion for a new trial, will be found in his statement made at the time, as follows:

'The court has no doubt about the correctness of the contention of the defendant, the Teller Reservoir Company, in this case. The court would like very much if it could have seen its way clear to have sustained this verdict. It crept out in the trial that the insurance company was behind the Teller Reservoir Company, and that hence the reservoir company would have had no part of the judgment to pay if it had been rendered against it, and I have not much doubt but what that fact influenced the jury largely. But the proposition that the chauffeur at the time of the occurrence of this accident was acting in direct opposition to express instructions, that he was using the automobile contrary to his right, contrary to his authority, that he was in no manner performing the duties of the defendant, the Teller Reservoir Company, and was not acting within the line of his duty, and was not acting within the scope of his authority, is beyond all dispute. The entire evidence uncontradicted goes to that effect.

'The court in the first instance attempted to save the case to the plaintiff by overruling a demurrer to the evidence at the close of the plaintiff's case, and I believe that, if the case had stood there as it was, then perhaps the court might have been sustained, but when the defense came in and all of the evidence uncontradicted went to establish the fact that the chauffeur practically stole the machine out of the garage, at least took it without any right, as testified to by himself, the garage man, and all the other witnesses, it left the case standing undisputed that upon doing so he was not in the discharge of his duty or in the line of his duty, and to let this verdict stand would be contrary to both the law and the evidence as I view it.'

In this statement there is obvious error as it relates to the question of the suggestion of casualty insurance. If there was error in this respect, it was not error caused by the plaintiff.

This matter was brought to the attention of the jury by John C. Teller, president of the defendant company, the principal owner of its stock, and in general charge of its business. And this upon direct examination by defendant's counsel, without, however, any suggestion from such counsel as to the question of insurance. This testimony was as follows:

'Q. At the time of your conversation with Mr. Palmer, had suit been brought against you personally? A. I would not be positive. I think it had. It had been trying to call him by 'phone and tell him that I was not the proper one to bring suit against, it would have to be the insurance company.'

And further:

'Q. And he was paid by the company during all times?'

This referred to the chauffeur. The answer to this question was as follows:

'A. He got his pay every month while in the company's employ. I asked my son to see Mr. Ward and find out if we could pay his doctor bill or some other expense, which he told me afterward he had done, and we wrote a letter to the company, I wrote a letter to the company, asking the company to reimburse Mr. Ward at least for his physician and his expense at the hospital, and wrote the insurance company to that effect.'

Certainly the plaintiff was in no way responsible for this testimony, and it should not be charged as an error against him. A party litigant cannot inject error into a trial and then take advantage of it.

It is true that, after the foregoing testimony was given, counsel for plaintiff asked the witness E. C. Teller, secretary of the defendant company, the following question:

'Q. At that time and place when you had a conversation with Mr. Ward, did or did you not say as follows: 'If you can get an adjustment of this matter, do so, because there is an insurance company back of it.''

Objection was made to this question and sustained.

Even though this question under the circumstances of the case be held to be improper, it was not material error, for the president of the defendant company had testified to the fact of insurance, and the mischief, if any, had been done before the question was asked.

The finding of the court that 'the chauffeur was at the time of the accident in no manner performing the duties of the defendant company, and was not acting within the line of his duty or the scope of his authority, is beyond all doubt,' is not justified by the testimony.

Beside, the question as to whether or not the chauffeur was acting within the scope of his authority is generally one of fact for the jury under proper instructions, and not a question of law for the court. Marshall v. Taylor, 168 Mo.App. 240, 153 S.W. 527; Burger v. Taxicab Motor Co., 66 Wash. 676, 120 P. 519; Bennett v. Busch, 75 N. J. Law, 240, 67 A. 188; Shamp v. Lambert, 142 Mo.App. 567, 121 S.W. 770; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040.

A very complete review of the authorities upon the question will be found in the case of Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am.St.Rep. 361. The rule there adopted seems well fitted to the case at bar. The court said:

'Applying these principles to the case at bar, the question for the court below was whether or not Blackwell, for the time being, totally departed from the master's business and set out upon a separate journey and business of his own. If the rule of law were that any deviation by the servant 'to carry some business of his own into effect' was of itself such a departure, the above question would be one of law. But this, as we have seen, is not the rule of law. To decide the question in a case like the present, the trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it. Without spending more time upon this point, we think the above question is one of fact in the ordinary sense, and that the case at bar clearly falls within the class of cases where such question is strictly one of fact to be decided by the trier.'

We think it is very clear under the testimony in this case that fair-minded men might reasonably differ as to whether or not the chauffeur was, at the time, acting within the scope of his employment; that is to say, was he, in the driving and use of the automobile at the time, acting within the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the chauffeur was acting.

Upon this point there are circumstances apparently in conflict with positive testimony in the case. In such cases this court has in Victor v. Smilanich, 54 Colo. 479, 131 P. 392, stated the rule to be:

'It does not always follow

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