Wilcox v. Smith

• Decision Date: 04 November 1936
• Docket Number: 7568.
• Citation: 62 P.2d 237,103 Mont. 182
• Parties: WILCOX v. SMITH et al.
• Court: Montana Supreme Court

62 P.2d 237

103 Mont. 182

WILCOX v. SMITH et al.

No. 7568.

Supreme Court of Montana

November 4, 1936

Rehearing Denied Nov. 20, 1936.

Appeal from District Court, Glacier County, Ninth District; R. M Hattersley, Judge.

Action by Jay M. Wilcox against Frank Smith, the British-American Oil Producing Company, and the Consolidated Gas Company wherein defendant Smith filed a counterclaim. From a judgment dismissing the action as to defendants British-American Oil Producing Company and the Consolidated Gas Company, plaintiff appeals.

Affirmed.

Henry McClernan, of Washington, D. C., and Hall & McCabe, of Great Falls, for appellant.

E. K Cheadle, Jr., and L. P. Donovan, both of Shelby, for respondents.

MORRIS Justice.

This is an action in damages for personal injury to the plaintiff alleged to have been sustained April 3, 1935, by reason of the reckless, careless, and negligent driving of an automobile by the defendant Smith on the highway leading out of the city of Cut Bank to the north.

Smith was an employee of his codefendants in this action--the British-American Oil Producing Company and Consolidated Gas Company. The two corporations owned leases on adjoining lands some nine miles northwest of Cut Bank on each of which oil and gas wells had been developed, and Smith lived on one of the leases with his family and was in charge of the pumping of the wells for each of his codefendants. It does not appear that there were any affiliated interests between the two defendant corporations, but Smith was employed by both concerns to attend to the pumping and looking after the pumping equipment, and the two concerns also employed J. W Johnston as their general field manager and superintendent. Johnston had an office at Shelby, Montana, and it was the usual daily practice for Smith to report to Johnston at Shelby relative to the production of the wells and any other matters pertaining to Smith's business. Such report was usually made about 1:30 in the afternoon of each day by 'phone from the office of the Toronto Pipeline Company, located near respondents' leases.

On the morning of the date above mentioned, Smith drove by car into Cut Bank to take his son to school and to attend to other personal business, and remained in town for about an hour and a half. While in town he met and was advised by "Mr. Noah," the man in charge of the Toronto Pipeline Company, that Johnston was trying to get him on the 'phone. Smith advised Noah that he would call Johnston later and soon after left for home. Smith testified that he had in mind to find out what Johnston "had on his mind" when he made his daily report at 1:30; that Noah's advice about Johnston wanting to get him on the 'phone had nothing to do about his starting for home soon after he talked with Noah; that he "just went out because he was ready to go out." On leaving for home, and when about a mile and a half out of town and while passing a truck going in the same direction, Smith collided with the plaintiff, wrecking the car he was driving and sustaining personal injuries himself, and injuring the plaintiff, the plaintiff's wife who was riding in the car with the plaintiff, and damaging plaintiff's car. Smith was driving a borrowed car which belonged to an automobile sales agency located in Cut Bank and with which he was negotiating a deal for a new car. Smith testified that he used his old car, which he had already turned in to the sales agency, when he got the borrowed car, for the purpose of going from one well to the others in the course of his employment by the two respondent corporations. It appears, although the record is not very clear, that J. W. Johnston, Smith's immediate superior, was aware that Smith used his car in attending to his duties as the employee of the two respondents, but the respondents had nothing to do with maintaining the car, nor did they allow Smith any expenses in connection therewith. This phase of the matter will be later adverted to.

In addition to alleging the facts relative to the accident substantially as above, the complaint further alleges that at the time of the accident Smith was engaged within the scope of his employment as an employee of the two respondent corporations. The complaint sets up two causes of action, the first for injuries to the plaintiff and his wife based upon the cost of hospitalization and medical attention for each, and the second for damages to plaintiff's car.

Each of the three defendants answered separately, traversing all of the material allegations of the complaint, and each of the defendant corporations interposed an affirmative defense founded upon alleged contributory negligence on the part of the plaintiff. Smith in answering, in addition to alleging contributory negligence, set up a counterclaim for damages for personal injury, and also for damages to the car he was driving. By reply the affirmative matter set up by the several defendants was brought in issue.

The issues were tried together by the court sitting with a jury. A number of witnesses were sworn and examined and proof on the part of the plaintiff was heard, and the plaintiff rested; whereupon both the defendant corporations moved the court for nonsuits which, after consideration, were granted.

In granting the motions for nonsuit the court at the time stated that it had in mind the following authorities: Monaghan v. Standard Motor Co., 96 Mont. 165, 29 P.2d 378; Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189; Harrington v. H. D. Lee Mercantile Co., 97 Mont. 40, 33 P.2d 553; Susser v. Delovage, 73 Mont. 354, 236 P. 1082; Kennedy v. Union Charcoal & Chemical Co., 156 Tenn. 666, 4 S.W.2d 354, 57 A.L.R. 733, and annotation. We are satisfied, after reading and considering the decisions referred to by the court and many others along the same lines covering practically all the questions involved here, that the ruling of the court in granting the motions for nonsuit was correct; but counsel for the plaintiff so earnestly argues the questions involved that we deem it advisable briefly to consider the various contentions advanced.

The trial was proceeded with against the defendant Smith; the jury returned a verdict favorable to the plaintiff, and judgment was duly entered thereon. Smith did not appeal, and no further consideration will be given to any phase of the case in so far as it relates to the personal liability of Smith. This appeal is from the judgments of dismissal following the granting of the respondents' motions for nonsuit.

The assignments of error by the plaintiff all relate to alleged errors of the court in granting such motions. Plaintiff states in his brief that "the sole question here to be considered...