Willi v. Schaefer Hitchcock Co., 5943

• Decision Date: 06 July 1933
• Docket Number: 5943
• Citation: 25 P.2d 167,53 Idaho 367
• Parties: IDA B. WILLI, IDA BROWN, ANNA LEAF and PHILIP WILLI, by His Guardian Ad Litem, IDA B. WILLI, Respondents, v. SCHAEFER HITCHCOCK COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

25 P.2d 167

53 Idaho 367

IDA B. WILLI, IDA BROWN, ANNA LEAF and PHILIP WILLI, by His Guardian Ad Litem, IDA B. WILLI, Respondents, v. SCHAEFER HITCHCOCK COMPANY, a Corporation, Appellant

No. 5943

Supreme Court of Idaho

July 6, 1933

AUTOMOBILES-NEGLIGENCE-GUEST-NEGLIGENT OPERATION BY OTHER THAN OWNER - LIABILITY OF OWNER - PRESUMPTION - SPEED - GUEST'S ACQUIESCENCE-BURDEN OF PROOF-DEATH-ACTION FOR DAMAGES-PARTIES-INSTRUCTIONS.

1. Where plaintiff's evidence would justify verdict for him counter-evidence by defendant merely creates conflict for resolution by jury.

2. Regardless of owner's presence or absence at time of accident, ownership alone of automobile establishes prima facie case against owner, since presumption is that driver is owner's agent.

3. Presumption that driver of automobile is owner's agent is rebuttable.

4. Where evidence to rebut presumption that driver of automobile is owner's agent is contradictory, question of agency is for jury, but, where rebuttal evidence is undisputed and uncontradicted, question of agency is one of law for court.

5. Where facts are such that court is in doubt as to whether driver of automobile is owner's agent, proper course is to submit question to jury.

6. Instruction that burden was on plaintiff to prove that automobile was being operated at time of accident in behalf of defendant corporation owning it, but that if driver was defendant's president, jury could infer that he was operating it in behalf of defendant corporation, held not error.

7. Where automobile accident resulting in guest's death happened before guest statute became effective, proof that host was guilty of gross negligence was unnecessary (Laws 1931, chap. 135; I. C. A., sec. 48-504).

8. Instruction that motorists must drive at reasonable speed and that speed in excess of 35 miles per hour was prima facie unlawful, held not error, in view of other instructions though case was tried on theory of gross negligence (Laws 1931, chap. 135; I. C. A., sec. 48-504).

9. Instruction that deceased was gratuitous passenger, held not error, where corporate defendant admitted allegation that deceased was gratuitous passenger, and issue of defendant's liability for acts of driver was clearly submitted to jury.

10. Instruction that damages for death should be such as would justly reimburse widow and children for pecuniary loss sustained, considering amount plaintiffs would probably have received from deceased if he had lived, but not in excess of amount sued for, held correct as against defendant's only complaint that no liability had been proved.

11. Decedent's married daughters were entitled to participate in recovery for his wrongful death, and were properly joined as plaintiffs in action to recover therefor.

12. Burden of proof was on defendant to prove guest's acquiescence in excessive speed, and, in absence of any proof, defense failed (Laws 1931, chap. 135; I. C. A., sec 48-504).

13. Under statutes, whether speed of automobile is prima facie evidence of negligence depends upon surrounding circumstances (I. C. A., sec. 48-504).

14. Where agent had authority to invite guest to ride in automobile, principal was liable for guest's negligent death irrespective of whether guest was then engaged on principal's business.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Everett E. Hunt, Judge.

Action for damages for wrongful death. Judgment for plaintiffs. Affirmed.

Affirmed.

E. W. Wheelan, and Post, Russell, Davis & Paine, for Appellant.

Assuming that plaintiff's decedent was a gratuitous guest of the defendant corporation, the corporation is liable only on showing that his death was brought about by the gross negligence of the defendant. The defendant being a corporation can act only through its officers, agents or servants. No gross negligence of any officer, agent or servant is shown here. (Burke v. Cook, 246 Mass. 518, 141 N.E. 585-587; O'Leary v. Fash, 245 Mass. 123, 140 N.E. 282; Connolly v. Derby, 167 Wash. 286, 9 P.2d 93; Craig v. McAtee, 160 Wash. 337, 295 P. 146.)

While a presumption may arise that the automobile was being used in the business of the defendant, upon showing ownership of the automobile in the defendant, and employment of the operator by the defendant, there is not the further presumption that the operator of the car was acting within the scope of his employment in having a gratuitous guest in the automobile. There is nothing in the record to show that Mr. Willi was a gratuitous guest of the defendant. Any evidence on the subject sustains the fact that Mr. Willi was the guest of Mr. Bruce. (White v. Brainerd Service Motor Co., 181 Minn. 366, 232 N.W. 626; Stegman v. Sturtevant & Haley Beef & Supply Co., 243 Mass. 269, 137 N.E. 363; O'Leary v. Fash, 245 Mass. 123, 140 N.E. 282; Zavodnick v. A. Rose & Son, 297 Pa. 86, 146 A. 455.)

Allen P. Asher, and Danson, Lowe & Danson, for Respondents.

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

February 11, 1930, M. L. Bruce was the president and general manager of the M. L. Bruce Company, predecessor corporation of the appellant, which owned a Cord automobile. That afternoon Mr. Bruce, in company with Philip Willi, for whose death the present action was instituted by respondents, respectively, his daughters, son and widow, drove in the Cord automobile south from Sandpoint to a cottage owned by Mr. Bruce. On the return trip, passing over a wooden bridge, some 10,000 feet long over an arm of Pend Oreille Lake, the car swerved from the roadway, crashed through the guard-rails, and fell to the ice some 20 feet below, killing both Mr. Bruce and Mr. Willi.

Appellant's assignments of error 5, 8, 10, 11 (subdivision 2), d, e, f, g and h, all revolve around the contention that at the time of the accident the automobile was not being used on company business.

Instruction No. 2 complained of was as follows:

"The jury are instructed that the burden of proof is upon the plaintiffs to establish by a preponderance of the evidence all of the material allegations of the complaint and that this burden continues throughout the trial. In this action the defendant admits that it was the owner of the automobile described in the complaint and that M. L. Bruce was driving the same, and that Philip Willi was riding therein as a gratuitous passenger. The burden is upon the plaintiffs to establish by a preponderance of the evidence that the automobile was at the time of the death of said Philip Willi being operated for and on behalf of the defendant corporation and on its business. If you find by a preponderance of the evidence that at the time of the death of Philip Willi that M. L. Bruce was the president and chief executive officer of the defendant corporation, then you have a right to infer that said M. L. Bruce was operating the said automobile for and on behalf of said corporation and in connection with its business.

"The jury are further instructed that an inference is a deduction which the reason of a jury may make from the facts proved."

It is conceded that the automobile belonged to appellant, and that the accident occurred during ordinary business hours. Two of appellant's employees testified in effect that Mr. Bruce was the president and general manager of appellant, with full right and authority to use the Cord automobile as he saw fit, but that ordinarily he used it only for company business. Opposed to the latter is evidence to the effect that on the particular day in question, gas for the Cord car was charged to Mr. Bruce's personal account, and that such was done when he was using the car personally, as distinguished from company business, and that Mr. Bruce and Mr. Willi, while at the cottage before the fatal trip north, were in part at least engaged only in social visitation. The testimony with regard to their activities at the cottage is not exclusive, in that the witness testifying relative thereto, did not attempt to say that he overheard all they said to each other, or over the telephone to other parties.

If the evidence on the part of the plaintiff is sufficient to justify the jury in finding in favor of respondents, the counter-testimony offered by appellant would merely create a conflict to be resolved by the jury. (Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774.)

Two exhaustive notes containing many citations, in 42 A. L. R. 898 and 74 A. L. R. 951, cover this precise question. We have carefully examined the cases in both notes, together with all the authorities cited by appellant and respondents, and the rule announced in Hathaway v. Mathews, 85 Cal.App. 31, 258 P. 712, and stated in the annotation, to this effect:

"The fact of ownership alone, regardless of the presence or absence of the owner in the car at the time of the accident, establishes a prima facie case against the owner, for the reason that the presumption arises that the driver is the agent of the owner.",

is amply supported by authority, and appears to be the majority, and generally accepted rule.

The above presumption being rebuttable, the correct rule with regard to the consideration of whether such presumption has been met or overcome is well stated in International Co. v. Clark, 147 Md. 34, 127 A. 647, cited with approval in Magee v. Hargrove Motor Company, supra, as follows:

"It is equally well settled that, where the evidence offered to establish facts which would rebut this presumption is contradictory, the question is one for the jury; but, where the facts so offered are undisputed and uncontradicted, it becomes properly a question for the court. It might be added that, where the facts are such as to leave the court in doubt as to this question, the...