Frankle v. TwedtFrankle v. Twedt
Lead Opinion
Aрpeal by defendant from an order denying his motion for a new trial.
As an outgrowth of a collision at Bast Seventh street and Forest avenue in St. Paul, plaintiff sued for damages to his automobile, and defendant answered and counterclaimed for damages to his vehicle. At the time of the accident, plaintiff’s foster brother, Harold Schmit, was driving plaintiff’s automobile and was on his
We are faced with the question whether, in the light of the evidence, the trial court erred in charging the jury in effect that, as a matter of law, the driver of plaintiff’s car, Sehmit, was not аn agent of plaintiff, and that therefore the driver’s negligence, if any, could not be imputed to plaintiff as a bar to any right of recovery which he otherwise might have against defendant. It is clear from the testimony of both plaintiff and Sehmit that plaintiff permitted Sehmit to use the car for the evening for the latter’s persоnal pleasure, with the understanding, however, that he would pick up plaintiff at his place of work about 1:30 a. m. and take him home. When the time came to call for plaintiff, Sehmit, who was then visiting at his fiancee’s home, proceeded from her home along a route which led directly to plaintiff’s place of work. While thus en route, the accident occurred about four blocks from where he had agreed to meet plaintiff. At the time, he was accompanied by his fiancee and also by his buddy, who was to be taken to his home. It is admitted that if the accident had not occurred Sehmit would have called for plaintiff as agrеed and that thereafter, accompanied by plaintiff, he would first have taken his buddy and his fiancee to their respective homes and would then have driven plaintiff to his home. With respect to Schmit’s use of the car for the evening, plaintiff testified:
“Q. And the arrangement had been that your brother was to come out and pick you up and bring you home that night, isn’t that right?
“A. That’s right.”
Sehmit himself testified:
“A. * * * I was supposed to pick him up.
*****
“Q. And then he [plaintiff] would ride with you while you took your buddy home?
“A. Yes, sir. Because I told him I would be there that time, and he expected me to be there.”
Defendant asserts, however, that the trial court erred, in that the evidеnce would sustain a finding that the relationship between plaintiff and Schmit, when the collision occurred, was that of principal and agent, and that the issue as to the character of their relationship should have been submitted to the jury. The use of the broad and inclusive terminology of principal and agent in cases concerning the imputation of negligence is unfortunаte in the absence of an express indication as to what specific phase of the agency field is involved. See, Restatement, Agency, §§ 1 and 2, and comments. The negligence of all agents indiscriminately is not to be imputed to the principal. On the basis of an agency relationship, the negligence of an agеnt is imputed to his principal as a bar to the latter’s right of recovery, in an action which he brings against a third party, only when the nature of the agency relationship is such that the principal would be subject to a vicarious liability as a defendant to another who may have been injured by the agent’s negligence. Restаtement, Torts, § 485; Prosser, Torts, §§55 and 62.
If, aside from the bailor and bailee relationship which arose when plaintiff permitted Schmit to use the car for the latter’s personal pleasure, any principal and agency relation was created, it must have been that of master and servant. The evidence is clеarly subject to the inference that Sehmit’s use of the car for his pleasure was, by implication at least, agreed to by plaintiff for and in consideration of Schmit’s promise that he in return would perform a service for plaintiff’s benefit, namely, that of calling for the owner at his place of employment to tаke him home The service was that
Do we, however, have the elements essential to a master-and-servant relationship? A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of such service is controlled or is subject to the right of control by the master. Bestatement, Agency, § 2. As applied to automobiles, the difference between a mere bailment relation and that of master and servant is the distinction between a mere permissive use and a use which is subject to the control of the master and connected with his affairs. Cornish v. Kreuer,
Although in the abstract the right of control is the decisive test, its decisive character in practical application fades into a twilight of uncertainty by reason of the fundamental differences in the nature of various occupations, by the varying arrangements of the parties and the circumstances of each particular case, and by such variable factors as the force of custom. Prosser, Torts, § 63; Restatement, Agency, § 220. The existence of the right of control may be inferred from a combination of factоrs which usually varies according to the circumstances of each case. Restatement, Agency, § 220. Thus, highly skilled cooks or gardeners who resent and even contract against interference are normally servants when regularly employed. The fact that a particular occupation may involve suсh technical skill that the employer is wholly incapable of supervising the details of performance does not preclude a master-and-servant status. Tetting v. Hotel Pfister, Inc.
As applied to the instant case, the evidence sustains a finding that when the accident occurred plaintiff possessed, in the light of the previous understanding of the parties, the nature of the service, and the circumstances under which the service was to be performed, such right of сontrol over the driver’s operation of plaintiff’s automobile as to identify the relation as one of master and servant. Although contrary to the implication of Cornish v. Kreuer,
Schmit was clearly acting within the scope of his employment, although when the collision occurred he was transporting his fian
“An act may be within the scope of employment, although done in part to serve the purposes оf the servant or of a third party.” Restatement, Agency, § 286.
As a matter of tort law,
Where, as here, the evidence as to the existence of the relationship of master and servant is conflicting or admits of more than one inference, the question thereby raised is one of fact for the jury. Only when the facts are undisputed or admit of only one inference may the issue as to the nature of the relationship of the parties be determined by the court as a matter of law.
Eeversed.
Notes
Jacobsen v. Dailey,
As to imputed negligence generally as a bar to a plaintiff’s right of recovery, see Rеstatement, Torts, §§ 485 to 494; Prosser, Torts, §§ 55, 62
As to imputation of negligence in a wrongful death action or in an action for damages for loss of services, see Restatement, Torts, §§ 493, 494.
The phrase “scope of employment,” as used in the field of torts to circumscribe the area of vicarious liability to third persons, is to be sharply differentiated from the workmen’s compensation act phrase “arising out of and in the course of employment.” Riesenfeld-Maxwell, Modern Social Legislation, pp. 139, 234-235. Compensation acts are sui generis and belong to a fundamentally different field of litigation. See, Olson v. Trinity Lodge,
Marcel v. Cudahy Packing Co.
See, Fostrom v. Grossman,
Loucks v. R. J. Reynolds Tobacco Co.
Bayerkohler v. Clara City Farmers Elev. Co.
Concurrence Opinion
(concurring specially).
Since defendant is asking only for a new trial and is contending only that the case was for the jury on whether Schmit was, at the time of impact, the servant of plaintiff, I agree that there should be a reversal; but I regard the evidence of a master-servant relationship at the moment of impact as conclusive, not that it should be submitted to a jury. The evidence is all one way and undisputed. There was no conflict as to the controlling facts nor as to the inferences that might be drawn therefrom.