Wenell v. Shapiro, 30327.

• Court: Minnesota Supreme Court
• Writing for the Court: I. Olsen
• Citation: Wenell v. Shapiro, 194 Minn. 368, 260 N.W. 503 (Minn. 1935)
• Decision Date: 26 April 1935
• Docket Number: No. 30327.,30327.
• Parties: WENELL v. SHAPIRO et al.

260 N.W. 503

194 Minn. 368

WENELL v. SHAPIRO et al.

No. 30327.

Supreme Court of Minnesota.

April 26, 1935.

Appeal from District Court, Hennepin County; Levi M. Hall, Judge.

Action by E. Raymond Wenell against Harris Shapiro and the Martin F. Falk Paper Company. From a judgment entered in favor of the defendant Martin F. Falk Paper Company, plaintiff appeals.

Affirmed.

Fred A. Ossanna and Irving H. Green, both of Minneapolis, for appellant.

Jenswold, Jenswold & Dahle, of Duluth, for respondent.

I. M. OLSEN, Justice.

Plaintiff appeals from the judgment entered in favor of the defendant Martin F. Falk Paper Company, a corporation.

Plaintiff brought suit against Harris Shapiro and Martin F. Falk Paper Company to recover damages for personal injuries caused by an automobile owned by the paper company and driven by Harris Shapiro. On a first trial of the action a verdict was returned in plaintiff's favor against both defendants for a substantial amount. The paper company alone moved for judgment in its favor, notwithstanding the verdict, or for a new trial. A new trial was granted. On the second trial a verdict for $650 against the paper company was returned. That company is the only defendant before us, and is hereinafter referred to as the defendant. Thereafter, on motion of defendant, the court set this verdict aside and granted judgment in defendant's favor, notwithstanding the verdict. Judgment was thereupon so entered, and this appeal followed.

1. The first assignment of error is that the court did not have jurisdiction to hear or grant defendant's motion for judgment. The claim is that, because the notice of motion served on plaintiff's counsel was not filed at or before the hearing thereon, the court was without jurisdiction to hear the motion. There is a court rule requiring motion papers to be filed before the hearing. The motion was made on the minutes of the court. Due notice thereof was given to plaintiff's counsel. The motion was heard within the time provided by statute. Counsel for each of the parties appeared and took part in the hearing thereon. No objection to the jurisdiction or hearing before the trial court is shown. The jurisdiction of the court was not affected by the failure to file the notice before the hearing.

2. The second error assigned is that the court erred in granting the motion for judgment, notwithstanding the verdict. This raises the usual question of whether, on the whole evidence in the case, there was evidence sufficient to justify the jury in returning a verdict in favor of the plaintiff, or, as otherwise stated, whether the defendant was entitled to an instructed verdict at the close of the evidence when motion therefor was made.

The decisive question here is whether, at the time of the accident, Shapiro was acting within the scope of his employment or was doing or attempting to perform any service for defendant within the scope of his employment. Loucks v. R. J. Reynolds Tobacco Co., 188 Minn. 182, 246 N. W. 893; First National Bank v. Fox, 191 Minn. 318, 254 N. W. 8.

Harris Shapiro was in the employ of the defendant company as a salesman, selling at wholesale the paper and stationery handled by defendant. His territory was limited to St. Paul and Minneapolis, with perhaps some of the suburbs of the two cities. He worked on a straight monthly salary, not on commission. His working hours were from between 8 and 9 o'clock in the morning until noon, and from 1 until 5 o'clock in the afternoon. He reported his sales to the defendant's main office in Minneapolis around 5 o'clock p. m. each working day. Occasionally he was delayed a short time and did not get his report in until the next morning, as the office closed at 5 o'clock. Sometimes, when in St. Paul at the close of day, he reported to the St. Paul branch office. The defendant furnished to Shapiro the automobile in question for use in his work of selling its paper, and paid for the gas, oil, and upkeep of the car when so used. The accident happened on Hennepin avenue in Minneapolis at about 11 o'clock in the evening of March 25, 1932, that being Good Friday and a legal holiday. The defendant's office was closed all day Friday and a sign was posted at the entrance thereof stating that no employee was required to work on that day, and, so far as appears, none of the employees on regular salary did work on that day. Shapiro had seen this sign on the office.

Shapiro's father was admitted to a hospital in Rochester, Minn., on March 18, and was there operated on on March 23. He thereafter died at Rochester on March 31. On the morning of March 25, Shapiro, together with his brother, who was an employee of defendant company at Duluth, started from Minneapolis to visit their father at the hospital in Rochester. Another brother also was visiting the father on that day. When Shapiro and his brother arrived at Rochester, they went directly to the hospital where the father was a patient. They and the other brother visited with the father during that entire day, except when they stepped out for meals. They drove in this car belonging to the defendant company and parked it near the hospital while they were in Rochester. The defendant did not know Shapiro was going on this trip. The two brothers started on the return trip about 8 o'clock in the evening, drove directly to Minneapolis, and, at the time of the accident, were on the way to a sister's home, where the brother from Duluth was staying. There is no evidence that Shapiro attempted to or did transact any business for the defendant on this trip, either going or coming, or while at Rochester. Rochester was not in his territory and he had no authority to do any business there. These facts were testified to by Shapiro and his brother, and corroborated to some extent by the testimony of the officers of the defendant company. There is no contradiction or conflict as to such testimony. The plaintiff argues that certain inferences in his favor as to Shapiro being within the scope of his employment, or acting for the defendant in its employment in driving this car at the time of the accident, may be drawn from the facts now to be considered.

The fact that the car was owned by the defendant and driven by an employee is urged as sustaining some inference that the employee, in driving it at the time of the accident, was acting within the scope of his employment. This claimed presumption is usually controlled by the facts and circumstances surrounding the use of the car at the time. It is overcome if the evidence clearly shows to the contrary. Here the evidence so clearly shows that Shapiro was not in any way doing or furthering any business for the employer at the time of the accident that the presumption is fairly and clearly overcome. Menton v. Patterson Mercantile Co., 145 Minn. 310, 176 N. W. 991; Piepho v. Sigbert-Awes Co., 152 Minn. 315, 188 N. W. 998; Simpson v. Egler, 166 Minn. 501, 207 N. W. 724; Messenbring v. Blackwood, 171 Minn. 105, 213 N. W. 541. The ownership of the car, if it stood alone, might furnish ground for such an inference, but where there is clear and uncontradicted evidence to the contrary, the presumption is overcome. The two cases of Fransen v. Kellogg Toasted C. F. Co., 150 Minn. 54, 184 N. W. 364, and Behrens v. Hawkeye Oil Co., 151 Minn. 478, 187 N. W. 605, are readily distinguishable from the present case. In each of those cases the car was being driven by an employee during business hours and within his territory, and the employee was in fact doing business for the employer during the day when the accident happened. Here, what Shapiro was doing was going on a trip to Rochester, Minn., outside of his territory, for a visit to his father, there critically ill. Unless that trip was for the purpose of doing business for the defendant, the return therefrom at 11 o'clock at night was not in any sense in furtherance of his employer's business or the doing of any business for his employer.

The car driven by Shapiro...