Defendant Eagle Motor Lines, Inc. appeals from a jury verdict in favor of plaintiffs Galloway and Hawkins in a negligence action for personal injuries and property damage. 1 On appeal, Eagle raises three issues 2 :
1) Whether there is sufficient evidence in the record to support the verdict;
2) Whether the trial cоurt erred in refusing to give an instruction tendered by Eagle;
3) Whether the trial court erred in giving plaintiffs’ instruction on issues allegedly outside the pre-trial order.
We affirm.
The record indicates that during the early morning hours of January 10, 1977 Galloway and Hawkins were driving two of Galloway’s trucks loaded with cattle north on Interstate 65. Because of drifts on the road and blowing snow, the roads were hazardous. Hawkins was driving in front of Galloway and both were traveling in the right hand lane between thirty-five and forty miles per hour. About five miles south of Seymour, Indiana, a truck moving about sixty miles per hour passed Galloway. Although his vision wаs obscured after it passed, he saw the name “Eagle Motor Lines” on the truck. A second truck, containing the same identifying marks as the first truck, also passed him after he had travelled another quarter of a mile. Galloway talked on his “C.B.” radio to the driver of the first passing truck and then told Hawkins that he would lose visibility when the trucks passed. The voice on the “C.B.” radio said “I’m getting ready to pass you now too”. Hawkins responded “I see what you mean”. As the first truck passed, Hawkins recognized the name “Eagle Motor Lines” and an eagle insignia on the truck’s door. When the second truck passed, he could only see the letter “E” on the door. He then felt a bump and his truck went off the road. As a result, Hawkins suffered personal injuries and Galloway incurred property damage to his truck and the load of cattle it was carrying.
Eagle argues that there was insufficient evidence and that the trial court erred in not granting a judgment on the evidence at the close of all the evidence because there was no evidence establishing the driver of the truck as an agent (employee) of Eagle acting within the scope of his employment. Eаgle contends that the only evidence of agency was their name on the side of the truck which is insufficient to support an inference that the driver was an agent or employee of Eagle acting within the scope of his employment.
Absent any other evidence tending to еstablish an agency relationship, Eagle would have been entitled to a judgment on the evidence.
State v. Halladay,
(1978) Ind. App.,
A motiоn for judgment on the evidence may properly be granted only if there is no substantial evidence or reasonable inference derived therefrom supporting an essential element of the claim: a complete failure of proof. Indiana Rules of Procedure, T.R. 50;
Ortho Pharmaceutical Corp. v. Chapman,
(1979) Ind.App.,
To establish Eagle’s liability under the doctrine of respondeat superior, plaintiffs had to show that the driver of the passing truck was acting within the scope of his employment as an employee for Eagle at the time of the accident. Pace, supra. As proof of an employee/employer relationship and scope of the employment, plaintiffs offered direct evidence establishing that two identical trucks, bearing Eagle’s name and insignia, were traveling together under hazardous road conditions at 2:00 a. m. Both trucks were carrying the product of one of Eagle’s largest customers. In addition, Eagle’s name and insignia were only allowed on trucks owned or leased by them and only employees were authorized to operate these trucks. Eagle had no knowledge of any unauthorized operаtion of their trucks for the date in question. The above evidence could support a reasonable inference that the driver was employed by Eagle to deliver U.S. pipe and that he was acting within the scope of this employment at the time of the accident. 3 Therefore, the trial court did not err in denying Eagle’s motion for judgment on the evidence.
Eagle also complains that the trial court erred in refusing the following instruction:
“If you find that Eagle Motor Lines, Inc. name was displayed by the truck that passed plaintiffs, that fact alone is wholly insufficient to support any reasonable inference that the driver, whoever it may have been, was an agent or employee of Eagle Motor Lines, Inc. or that the driver was acting in the scope of his employment.”
It is reversible error when the trial court refuses to give a tendered instruction that is a correct statement of the law, is applicable to the facts of the case, and is not adequately covered by the other instructions given.
Southern Indiana Gas & Elec. Co. v. Steinmetz,
(1977) Ind.App.,
“A corporation can act only through its officers, employees or agents. Any act or ommission (sic.) of an officer, an employee or an agent acting within the scope of his authority is the act or omission of the corporation.
If you find that an agent was not acting within the scope of his authority or as an agent for the corporation at the time of the occurrence, then the principal is not liable.”
Eagle’s instruction referring to Hawkins’ employment and contributory negligence set out the meaning of scope of employment. Considering these instructions together, the subject of рlaintiffs’ burden of proof on the elements of agency and scope of employment was covered.
Moreover, the fact that the language for this tendered instruction was taken from an appellate decision, does not necessarily make such language аppropriate for a jury instruction.
Mansfield v. Shippers Dispatch, Inc.,
(1980) Ind.App.,
Eagle’s final contention is that the trial court erred in giving plaintiffs’ instruction number five, over objection, because it exceeds the issues presented in the pre-trial order. The relevant part of the instruction states:
“The plаintiffs have the burden of proving all of the following propositions:
First: That the defendant was negligent in one or more of the following particulars:
(a) The unidentified driver of the truck bearing the insiginia (sic) of Eagle Motor Lines, Inc. operated the truck at an unreasonable speed under the circumstances.
(b) The unidentified driver of the truck bearing the insignia of Eagle Motor Lines, Inc. failed to keep a proper lookout for other vehicles using the highway.
(c) The unidentified driver of the truck bearing the insignia of Eagle Motor Lines, Inc. moved from the left-hand land [sic] to the right-hand lane before he was completely past the truck operated by Ronald G. Hawkins and thereby sideswiped the truck operated by Ronald G. Hawkins.
(d) The unidentified driver of the truck bearing the insifnia [sic] of Eagle Motor Lines, Inc. attempted to pass the truck operated by Ronald G. Hаwkins when road conditions were too hazardous to permit safe passing and thereby obscured the vision of Ronald G. Hawkins.”
The pre-trial order included the following:
“As Eagle Motor Lines, Inc.’s employee passed Nelson R. Galloway, Nelson R. Galloway notified him by CB radio that the snow thrown up by his truck completely obscured the visiоn of the drivers of trucks that he was passing. With the knowledge that he would cause the vision of Ronald G. Hawkins to be obscured, the employee of Eagle Motor Lines, Inc. attempted to pass the truck operated by Ronald G. Hawkins with wanton disregard of the consequences for the personal safety of Ronald G. Hawkins and to the safety of the truck owned by Nelson R. *1327 Galloway. While attempting to pass the truck operated by Ronald G. Hawkins, the employee of Eagle Motor Lines, Inc. negligently:
(1) Drove at a speed greater than was reasonable under-the hazardous conditions that existed;
(2) Failed to pass at a safe distance; and
(3) Sideswiped the truck operated by Ronald G. Hawkins by returning to the right side of the highway before safely clear of the truck.”
Eagle argues that the allegations of failure to keep a proper lookout and attempting to pass when road cоnditions were too hazardous were not set out in the pre-trial order. Because of this failure to specify, Eagle argues that it was not given the opportunity to conduct the trial with these theories in mind.
We recognize that when a pre-trial order specifies the issues in the cаse, the parties are not permitted to go into other issues unless the pre-trial order is amended. T.R. 16(J);
North Miami Consolidated School Dist. v. State,
(1973)
Unlike the cases relied on by Eagle 4 , the present case does not present a situation where plaintiffs have changed theories and tried the new theory by implication under T.R. 15(B). Rather, it is a case where the factual issues are inherent in the issues defined in the pre-trial order. The plaintiffs proceeded to trial on theories of negligence and wanton misconduct with various contentions. The allegations in the instruction were implicitly, if not expressly, within the specified contentions of the order. The fact that the court denied the T.R. 15(B) motion to amend and still gave the instruction suggests that the court interpreted the pre-trial contentions tо include the questioned allegations. Eagle’s notice of the issues to be tried was not defective. Therefore, the trial court did not err in giving the complained of instruction.
Affirmed.
Notes
. Plaintiffs’ complaint also included United States Pipe & Foundry Co. and Occidental Fire and Casualty Co. of North Carolina as defendants. A summary judgment was entered in favor of United States Pipe and a default judgment was entered against Occidental. These defendants raise no issues on this appeal.
. For purposes of clarity we reword the stated issues.
. Eagle argues somewhat parenthetically that even if the drivers were employed by Eagle, they were acting outside the scope of their еmployment because the company had a rule which did not permit driving in such hazardous weather and that the drivers must keep logs of their routes. Because no log indicated any drivers carrying U.S. pipe on this route and because the rule prohibited driving under these conditions, the drivers wеre not acting within the scope of the employment. It is well established that where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts reasonable means intended and directed to the end which result in injury to another, the master is answerable for the consequences, regardless of the motives which induced the adoption of the means even though the means employed were outside of his authority and against express orders of the master.
Pittsburgh, C. & St. L. R. Co. v. Kirk,
(1885)
. Eagle relies on
Bahre
v.
Metropolitan School Dist.,
(1980) Ind.App.,