175 Va. 105 | Va. | 1940
delivered the opinion of the court.
This action was brought by C. W. Wheeling against B. J. Kavanaugh and F. P. Kavanaugh, partners, trading as the Lynchburg Rendering Company, and Thomas J. Hurley, to recover damages from personal injuries caused by the negligent operation of an automobile belonging to the Lynchburg Rendéring Company, and driven by Hurley, an employee of that firm.
B. J. and F. P. Kavanaugh, sometimes referred to as the defendants, plead the general issue and filed an affidavit, undér Virginia Code 1936, section 6126, denying that their automobile, at the time of collision, was being operated or controlled by them, or was being used in their business or within the scope of Hurley’s employment. In their grounds of defense they further set out that Hurley, without their knowledge or consent, was on a mission of his own, in positive violation of his instructions.
Hurley was not represented by counsel in the trial court and made no defense to the charge against him. The jury returned a verdict against all of the defendants.
It is not now questioned that the collision was a result solely of the negligence of Hurley. The extent of Wheeling’s injuries and the amount of his damages are not in issue. .Hurley is not one of the petitioners here. The judgment as to him is final.
Our inquiry and the true test of the liability of the master in this case is not whether the act charged to the servant was done during the existence of the servant’s employment, but whether it was within the course of the servant’s employment or outside of it. v. De Witt, Jr., 128 Va. 438, 105 S. E. 124; Appalachian Power Co. v. Robertson, 142 Va. 454, 129 S. E. 224; Barnes v. Hampton, 149 Va. 740, 141 S. E. 836; Western Union Telegraph Co. v. Phelps, 160 Va. 674, 169 S. E. 574.
The evidence, in the order of its presentation, was as follows:
On re-direct examination, Hurley was asked if he did not make the statement, both at the scene of the accident and in the hospital, that he was going from Winston-Salem to Lynchburg; and if he did not, at a hearing on a charge of reckless driving before a trial justice,»upon being questioned if he was on duty at the time of the accident, answer that he was. Hurley replied that he did not remember making the statements, and that he had not decided he would go to Lynchburg that night.
At this stage, the plaintiff then offered the following testimony to contradict Hurley:
A police officer said that when he questioned Hurley immediately after the collision, for the purpose of ascertaining the direction of travel of the two cars, Hurley told him he was going to Lynchburg. Another witness said Hurley told him, at the hospital on the same night, that he was on his way from Winston-Salem to Lynchburg and that, at the hearing before the trial justice, he heard him testify that he was on duty when the accident occurred.
The trial justice, C. ft. Warren, said he had the impression that Hurley had stated at the hearing before him that he was on the business of the firm at the time of the accident. Judge Warren further said, however, that at the hearing he felt like counsel were “Thinking about a damage suit,” and he tried to keep that out of his court, and told counsel that he wasn’t interested in who Hurley was, whom he was working for, or anything .of the kind; but simply wanted to know if he had been guilty of negligent driving or not. When confronted with the purported extract from
Hurley, being recalled to the stand by the defendants, positively denied that he had made a statement in court or elsewhere that he was on duty at the time of the accident.
Marcotte said that, being off from his work with Armour and Company, he casually saw Hurley in Lynchburg on May 19th; that, when he learned Hurley.was going to Winston-Salem for the purpose of weighing in some hides, he asked to be permitted to ride with him, and permission being granted, he went solely for a pleasure trip. He then fully corroborated Hurley as to the details incident to their return trip towards Lynchburg that evening, adding that the trip was made at his request and for his sole purpose.
F. P. Kavanaugh testified that he and B. J. Kavanaugh are engaged in the rendering business in Lynchburg. In the operation of their business they use their own automobiles and trucks for transporting merchandise to and from their plant and for other services; and that all of the employees of his firm, including Hurley, had been specifically instructed not to permit others to ride in the company’s vehicles or to use the cars for their own purposes. He corroborated Hurley as to the purpose of his trip to Winston-Salem and as to the orders given to him over the telephone to remain there for the night, check in the hides on the next morning and then return.
Plaintiff insists that the prior inconsistent statements alleged to Hurley, together with the prima, fade presumption that the automobile was being operated in the business of its owners, were sufficient under the entire circumstances to present to a jury the question whether or not Hurley
For several reasons, the alleged prior inconsistent statements are without probative value. In the face of Hurley’s admitted knowledge of and defiance of his instructions, any statement by him that a course of conduct contrary to such instructions was within the scope of his employment would be necessarily untrue, as a matter of fact and as a matter of law. Such statements, made as matters of fact or as opinions, could not extend the undisputed limit of the authority definitely prescribed by his employers.
A consideration of the statements in question show that it was true that Hurley was going towards Lynchburg, so far as direction was concerned. This was in accord with his declared purpose of accommodating Marcotte. The statement that he was “on duty” at the time of the accident does not go far enough to show whether it was intended to refer to a duty owing to his employers or merely to refer to the fact that he was operating the car at the time of the collision. The trial justice refused to permit, the development of the evidence for the purpose of a civil action, and all of the circumstances and evidence attending the making of the statements are not before us. The statements of themselves are doubtful, inconclusive, and, at most, the .interpretation put upon them by the plaintiff is but an inference or speculation. That inference is contrary to. Hurley’s full evidence and contrary to the undisputed instructions under which he was employed.
The prior statements were introduced for the purpose of contradicting Hurley. If made, they in no way contradicted the instructions which shaped the course of his employment. Whether Hurley ever made a statement that implied he was on duty for his employers at the time of the accident is a question relating to his credibility. There is no actual proof of the truth of the statement itself.
In Virginia, we have followed the rule adopted by the great weight of authority that in an action for injuries caused by the negligent operation of an automobile proof
The presumption has been adopted by the courts as a reasonable rule because of the inconvenience, difficulty and, in a great many cases, the impossibility of otherwise proving by affirmative evidence that the driver of the vehicle was acting under the control and direction of the owner. Law of Automobiles (Michie) pages 400, 403; 42 A. L. 900; 96 A. L. R. 634.
This prima facie presumption, like other presumptions, cannot stand in the face of positive facts to the contrary. It is not based on an inference that is necessarily true because of the proof of certain facts. It is not necessarily true that an automobile is being used in the business of its owner because the facts show that it was owned by him and was being operated by one in his general employ. The proof of these facts creates an inference or presumption that it was so used, but they do not prove that it was actually in the owner’s business. Therefore, if the presumption thus created is rebutted or overcome by substantial evidence showing the true facts to be to the contrary, the presumption disappears. Presumptions give way to ascertained or established facts.
“Presumptions .are indulged in to supply the place of facts; they are never allowed against ascertained and established facts. When these appear presumptions disappear.” Schmitt v. Redd, 151 Va. 333, 143 S. E. 884; State ex rel. Steinbruegge v. Hostel et al. (1938), 342 Mo. 341, 115 S. W. (2d) 802; Lincoln v. French, 105 U. S. 614, 617, 26 L. Ed. 1189.
A number of cases from this State and other jurisdictions are cited by plaintiff to support his contention that the evidence presented a question of fact. We think that an examination of those cases will disclose, in every instance, certain peculiar facts and circumstances aiding and supporting the prima facie presumption arising from the ownership of the car, thereby raising a question of fact as to whether the vehicle was actually being used in the owner’s business.
The case of Crowell v. Duncan, supra, offers no parallel to this case in point of fact. There the servant, in an intoxicated condition, was in charge of a taxi-cab, with the taxi-cab sign displayed, during business hours. The cab had been turned over to the servant, the owner’s son, with authority to transact such business as he could and make return to the employer. It was being operated as is usual
In Sydnor & Hundley v. Bonifant, supra, there were contradictions of the driver’s testimony sufficient, perhaps, to justify a jury in discarding his evidence, and, in addition, there were the acts and conduct of the officers of the defendant corporation tending to show an admission of liability on its part for the injuries suffered by the plaintiff. Here there was no such conduct nor acts on the part of the owners.
In Buchanan v. Wilson, 159 Va. 49, 165 S. E. 422, it was held that a statement of the driver that he worked for the owner of the car might be considered as an admission of agency. The employment of the driver was there in question. Here the question is whether the agent was acting within the scope of his employment.
The present case differs, in point of issue and facts, from Ryan v. Maryland Casualty Co., 173 Va. 57, 3 S. E. (2d) 416. That case concerned the authority of the defendant’s son to drive a car, which authority the defendant and his son denied. The plaintiff impeached the testimony of the father, the owner of the car, by two persons who testified that the father had stated to them that he had given his son permission to drive the automobile. It was held that the' evidence of the two witnesses and certain additional circumstances constituted circumstantial evidence, which entitled the jury to pass upon the credibility of the witnesses.
Here the question is whether an employee, authorized to drive a car in the business of his employers, went beyond the scope of his employment in the use of the car. There is no contradiction of the evidence of either the employers or the driver that the latter used the car without the consent of the former for a purpose directly contrary to the specific instructions of his employers.
The facts of the instant case are almost identical with those in Kidd v. De Witt, Jr., supra, with the sole exception of the alleged prior statements of Hurley, which, for the reasons given, we do not think constitute a variance.
The facts in this case bring its determination squarely within the principle quoted with approval by Mr. Justice Gregory in Western Union Telegraph Co. v. Phelps, supra, and by Prentis, P., in Appalachian Power Co. v. Robertson, supra:
“ ‘A master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master’s business. Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. And, in determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for'himself, and as his own master, pro tempore, the master is not liable. If the servant
The uncontradicted facts here show that the master sent his servant, in charge of an automobile, to a distant point to perform a specific duty. The servant, in direct violation of his instructions, stepped aside from his masters’ business, negligently engaged in an act not connected with such business and placed himself in a position where he could not and did not perform the duty to his masters, which was the sole purpose for which he was then employed. The act was done while the servant was at liberty from his service, acting for himself and pursuing his own ends. There was -not merely a deviation, but a total departure from the course of the masters’ business. A servant cannot make such a deviation, contrary to the admitted terms and scope of his employment, a part of the course of his employment. If that were not true, the servant would determine the scope of his employment rather than the employer.
There was no conflict in the evidence that Hurley was acting beyond the scope of his employment at the time his negligence resulted in an injury to the plaintiff. There was then no question for the jury. The trial court should have sustained the motion to strike the evidence made at the conclusion of all the evidence.
For the foregoing reasons the judgment of the trial court is reversed, the verdict of the jury set aside, and a final judgment will be entered here for the original defendants, B. J. Kavanaugh and F. P. Kavanaugh, trading as the Lynchburg Rendering Company.
Reversed and final judgment.