Washburn v. Douthit

• Decision Date: 08 October 1934
• Docket Number: No. 9926.,9926.
• Citation: 73 F.2d 23
• Parties: WASHBURN et al. v. DOUTHIT et ux.
• Court: U.S. Court of Appeals — Eighth Circuit

73 F.2d 23 (1934)

WASHBURN et al. v. DOUTHIT et ux.

No. 9926.

Circuit Court of Appeals, Eighth Circuit.

October 8, 1934.

A. M. Dobbs and James A. Gutensohn, both of Ft. Smith, Ark., for appellants.

L. A. Williams, G. O. Patterson, and G. O. Patterson, Jr., all of Clarksville, Ark., for appellees.

Before BOOTH, Circuit Judge, and MUNGER and BELL, District Judges.

MUNGER, District Judge.

Appellees recovered judgment against appellants because of the alleged negligence of the appellants. The cause of action grew out of a collision between two automobiles. In their petition, the plaintiffs below alleged, in substance, that Howard Douthit was riding in an automobile owned by the defendant Shell Petroleum Corporation and driven by the defendant R. M. Washburn along a highway near Clarksville, Ark.; that Washburn was driving this car as the agent and employee of the Shell Petroleum Corporation and negligently operated the vehicle so as to cause Douthit to be thrown from the car causing his death.

The parents of Howard Douthit, as plaintiffs, sought recovery of damages because of the death of their son. The answer of defendants denied negligence, and denied that Washburn at the time of the accident was operating the automobile as an agent of the Shell Petroleum Corporation. It was alleged that Douthit was himself driving the car at the time of the accident; that the car was then being used in a trip for the personal benefit and pleasure of Washburn and Douthit and without any authority from the Shell Petroleum Corporation. The defendants also alleged that Washburn had been sent to Clarksville by the direction of officers of the Shell Petroleum Corporation in order that he might perform a specific service there for the corporation in obtaining an affidavit as to the heirs of one H. W. Redus and in obtaining an agreement from these heirs relating to an oil lease which Redus had signed, and the defendants further claimed that Washburn had no authority to perform any other work on that occasion. It was also claimed that Washburn and Douthit, after Washburn had concluded his duties in connection with the Redus matter, had driven in the automobile to a place near Hartman, Ark., to obtain some grape cuttings and some wine for personal use, and that this journey was made without the knowledge or authority of the Shell Petroleum Corporation. Testimony was offered on these issues of Washburn's authority and acts, and the court left to the jury the matter of Washburn's authority to act for the Shell Petroleum Corporation at the time of the accident. The jury returned a verdict in favor of the parents of Douthit and against Washburn and the Shell Petroleum Corporation, and this appeal is from the judgment rendered upon that verdict.

The appellants have presented fourteen assignments of error. The first and second assignments of error allege that the verdict is contrary to the law and to the evidence, and that it is not supported by the evidence. These assignments are too general and indefinite to present any question for consideration by this court. Wilson v. Everett, 139 U. S. 616, 11 S. Ct. 664, 35 L. Ed. 286; Chicago, M. & St. P. R. Co. v. Anderson (C. C. A.) 168 F. 901; Vandeventer v. Traders' Nat. Bank (C. C. A.) 241 F. 584; Lawson v. United States (C. C. A.) 297 F. 418; Smith v. Hopkins (C. C. A.) 120 F. 921.

Assignment of error No. 3 alleges error in the overruling of a motion made at the close of the plaintiffs' evidence to instruct the jury to return a verdict in favor of the defendants. This ruling cannot be assigned as error, because the defendants at that time had not rested their case and afterwards introduced evidence in their behalf. Accident Insurance Co. v. Crandal, 120 U. S. 527, 7 S. Ct. 685, 30 L. Ed. 740; Northern Pacific Railroad Co. v. Mares, 123 U. S. 710, 8 S. Ct. 321, 31 L. Ed. 296; German Ins. Co. v. Frederick (C. C. A.) 58 F. 144; Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 68 F. 148; Concordia Fire Ins. Co. v. Commercial Bank (C. C. A.) 39 F.(2d) 826; H. F. Wilcox Oil & Gas Co. v. Skidmore, 72 F.(2d) 748 (C. C. A. 8) opinion filed September 6, 1934.

The fourth, fifth, and sixth assignments allege error in the refusal of the court at the close of the evidence to give three instructions tendered by the defendants. These instructions directed the jury to return a verdict in favor of the defendants. No grounds for the request were stated either in the request or in the instructions tendered. The appellants are therefore not entitled to a review of the sufficiency of the evidence. Mansfield Hardwood Lumber Co. v. Horton (C. C. A.) 32 F.(2d) 851; Williams Bros. v. Heinemann (C. C. A.) 51 F.(2d) 1049; Standard Acc. Ins. Co. v. Rossi (C. C. A.) 52 F.(2d) 547; Denver Live Stock Commission Co. v. Lee (C. C. A.) 20 F.(2d) 531; Public Utilities Corporation v. McNaughton (C. C. A.) 39 F.(2d) 7; Falvey v. Coats (C. C. A.) 47 F.(2d) 856, 89 A. L. R. 1; H. F. Wilcox Oil & Gas Co. v. Skidmore, supra.

There are three assignments of error, Nos. 7, 8, and 9, based upon the refusal of the court to give instructions requested by the defendants, and which are referred to as instructions Nos. 4, 5, and 7. Rule 11 of this court is as follows: "The appellant shall file with the clerk of the court below, with his petition for the appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in...