29 P.2d 278 | Mont. | 1934
We contend that the law of most jurisdictions is that upon proof by plaintiff that the car causing the injury belonged to the defendant master and was being driven by one in his general *167
employment, establishes by presumption a prima facie case for plaintiff that the car was being operated in the master's business at the time by the employee, and plaintiff is entitled to have the case submitted to the jury in spite of the fact that defendants may have produced evidence which plaintiff was unable to contradict. (Berry on Automobiles, sec. 1352; BurtCorporation v. Crutchfield,
The question arises in many of these cases as to the effect the presumption has in the face of other testimony given by defendants. It seems that the best reasoned cases hold that a conflict in the evidence arises and the jury should be allowed to pass upon the question as to whether or not the presumption has been controverted. It is thus a question of fact for the jury. (Grantham v. Ordway, supra; Fanning v. Green,
In California it is held that plaintiff is entitled to go to the jury on this presumption although plaintiff's case is opposed by evidence that the owner had loaned the machine to the person who was driving it, which is the explanation given by defendant in this case. (Randolph v. Hunt,
It is undoubtedly true that if direct evidence of disinterested witnesses is introduced on behalf of defendants the prima facie case of plaintiff would be overcome and that then the court could take the case from the jury. But when the only testimony introduced by defendants is the testimony of interested witnesses, then the court should let the jury pass on their testimony. The defendant and any officer or employee of a defendant company or corporation are interested witnesses. (Feldtman v. Russak,
Appellant's evidence did not establish the existence of any presumption that the automobile was being used about respondent's business; at the most, unexplained, it could have permitted only of an inference to this effect. Explanation came from direct and circumstantial evidence; evidence uncontradicted, corroborated and credible. Therefrom the trial court judge determined that but one conclusion could be reached by reasonable men, — the conclusion that Blaskovich was not rendering a service to respondent in the course and scope of his employment.
Respecting the cases cited by appellant, we submit the following: Magee v. Hargrove Motor Co.,
No one of the cases cited by appellant is at variance with the principle announced by this court and pursuant to which the trial court judge acted in this case; they all recognize that if the evidence is deemed to be credible and susceptible of but one inference by reasonable men, the issue is one of law for the court. Steiner v. Royal Blue Cab Co.,
The record discloses that the motor company frequently received from manufacturers shipments of parts for automobiles inclosed in wooden crates or boxes. These parts were unpacked and the crating deposited in the boiler-room. During the winter season this material was consumed in the furnace of the garage heating plant. In the summer months the shop foreman of the defendant company at various times would order the employees to clean up the boiler-room and remove the cratings and other rubbish. On the day in question, the defendant Blaskovich was directed to clean up the boiler-room, and he loaded the wood, the property of the defendant company, upon the truck. At the time of the accident, he was using the truck with the consent of the motor company for the purpose of transporting the wood to his own home for his own use as fuel.
The defendant company maintained a time clock in its establishment, and required employees "to punch" the clock at the beginning and the end of the working day. This record revealed that defendant Blaskovich on the date in question ceased work at 5:02 P.M. Blaskovich received no compensation for services after that time on that date. He was a member of the teamsters' union in the city of Butte, and under *172 the working agreement between this union and his employer, he was not permitted to work overtime without compensation in accordance with an established schedule.
Plaintiff produced one Willis as a witness, who testified that for some three and a half years prior to the date of the accident he had been employed by the defendant company in a similar capacity to that of defendant Blaskovich; that he had on several occasions been directed to clean the boiler-room; that during working hours he had loaded wood on a truck, the property of the defendant company, and removed the wood to his own home for use as fuel; and that he received no compensation for his time consumed in transporting the wood to his residence. The evidence of all the witnesses who testified on the trial of this case is in accord with the proposition that employees of the company were permitted with its consent to use one of its trucks to transport wood of the character in question from its place of business to their homes for use as fuel, and that they received no compensation for the work of transporting the wood, but were compensated for the time consumed in loading the wood on the truck.
At the close of the defendants' case the trial court sustained a motion for a directed verdict as to the defendant motor company, but denied the motion as to the defendant Blaskovich. The plaintiff thereupon moved the dismissal of the action as to Blaskovich, which motion was granted. A verdict was returned in favor of the defendant company as directed by the trial court. Judgment was entered on the verdict in favor of the company. The appeal is from the judgment.
Numerous specifications of error appear in the brief of the plaintiff. All of them challenge the correctness of the court's ruling in granting the motor company's motion for a directed verdict as to it. Plaintiff asserts that, since it appeared from the evidence that the truck was the property of the motor company, that the driver was in its general employ and that the removal of the wood was for its benefit, the presumption arose that at the time of the accident defendant Blaskovich was acting *173 within the scope of his employment as a servant of the motor company; that this presumption has the weight of evidence and is sufficient to require the submission of the case to the jury, notwithstanding the uncontradicted evidence to the effect that Blaskovich at the time of the accident was acting without the scope of his employment and on an independent errand of his own.
It is well settled that even though the driver of a car is the[1, 2] servant of the owner of the car, the owner is not liable unless at the time of the accident the driver was acting within the scope of his authority and in regard to his master's business. (Susser v. Delovage,
The courts of the various states are not in accord as to the quantum of proof necessary to raise this presumption, but the evidence here is sufficient to come within the requirements of the jurisdictions requiring the maximum amount of proof. 2 Blashfield's Cyclopedia of Automobile Law, section 42, Chapter 69, pages 1636 to 1643, inclusive, contains a review of the decisions of the various courts on this question in detail.
The presumption which arose in this case was disputable, and[3, 4] such a presumption may be controverted by other evidence. (Sec. 10606, Rev. Codes 1921.) Such a presumption is successfully controverted when proof to the contrary overcomes it. By proof that satisfactorily overcomes it, it is meant that which is sufficient to sustain the affirmative of an issue — a preponderance of the evidence. Therefore, when the evidence preponderates against a disputable presumption, it fades away in the face of the contrary facts. (In re Wray's Estate,
The fact, however, that the testimony is uncontradicted is not sufficient to overcome a disputable presumption and thereby to warrant a directed verdict, where the inferences to be drawn from the facts and circumstances are open to different conclusions by reasonable men. (Maki v. Murray Hospital,
Plaintiff urges that the incidental benefit which the[5] defendant company received by the removal of the wood from its premises is a controlling factor in determining whether or not Blaskovich in hauling the wood to his own home was about the master's business and within the scope of his employment. It is generally held that where an employee uses the master's car on a mission of his own, some slight incidental benefit which may thereby accrue to the master is insufficient to warrant holding the master liable for the negligent operation of his automobile by the servant as being within the scope of his employment. (Note, 22 A.L.R. 1434; Kitz v. Scudder Syrup Co.,
Plaintiff strongly relies upon the case of Steiner v. RoyalBlue Cab Co.,
Plaintiff also relies upon the case of Bushnell v. YoshikaTashiro,
The California Court of Appeals in the case of McCammon v.Edmunds,
Counsel for the plaintiff strongly rely upon the case ofPoncino v. Reid-Murdoch Co.,
If the evidence tending to overcome the presumption that the[6] automobile was being driven by the servant in the course of his employment is clear, convincing and uncontradicted, and if only one inference can be drawn by reasonable men therefrom to the effect that the servant was not then engaged in the master's business within the scope of his employment, then this presumption is entirely overcome; it fades away, and a directed verdict is proper. (Otero v. Soto,
The evidence of witness Willis, who was called by the plaintiff, strongly tends to corroborate the testimony offered on behalf of the defendants, to the effect that Blaskovich was not acting within the scope of his employment at the time of the automobile accident. It does not in any manner contradict the evidence on the same subject produced by the defendants. The evidence on their behalf in this respect was clear, convincing and uncontradicted.
Some contention is made in the brief of appellant that the[7] evidence given by Blaskovich on the taking of his deposition contradicts the testimony given by him in open court. Such contradiction, if any exists, does not create a conflict in the evidence, as such contradictory statements are not substantive evidence, but only evidence tending to impeach the testimony of the witness. (Wise v. Stagg,
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS and STEWART concur.