Gorton v. Doty , 57 Idaho 792 ( 1937 )

I am unable to concur in the majority opinion.

As I read the entire record there is a total lack of evidence to support the allegation in the complaint that Garst was the agent of appellant Doty at or prior to the time of the accident in which respondent Richard Gorton was injured and as such agent was acting within the scope of his authority. An agent is one who acts for another by authority from him, one who undertakes to transact business or manage some affair for another by authority and on account of the latter. (Moreland v. Mason, 45 Idaho 143, 260 P. 1035.) Agency means more than mere passive permission. It involves request, instruction or command. (Klee v. United States,53 Fed. (2d) 58.) The facts are not in dispute. Briefly they may be stated as follows: Appellant Doty and Garst were teachers at the Soda Springs High School, not in the same but in different departments, the former being a teacher of Latin and Home Economics and the latter acting as Coach of Athletics and a teacher of Mathematics. Neither had any official connection with the other. Their employment was entirely separate and distinct. Miss Doty had no connection with, nor duty with respect to, the athletic activities of the school. Upon the day preceding the game, to which reference is made in the majority opinion, in a general conversation between Garst and Miss Doty she asked Garst if he had sufficient cars to transport the boys to Paris. Garst replied that he needed one more car and in answer to this statement Miss Doty stated he might use her car if he drove it himself. The next day Garst took Miss Doty's car to a garage in Soda Springs and purchased gasoline charging it to the school district, the district subsequently paying for the same. Miss Doty received no compensation and none was to be paid her for the use of her car. As I read the record she simply loaned her car to Garst to enable him to furnish means of transportation for the team from Soda Springs to Paris. It was nothing more or less than a kindly gesture on her part to be helpful to Garst, the athletic coach, in arranging transportation for the team. The mere fact that she stated to Garst that he should drive the care was a mere precaution upon her part that the car should not be driven by any one of the young boys, — a perfectly natural thing for her to do. It is principally and particularly upon this statement of fact that the majority opinion holds that the relationship of principal and agent was created and that Garst became the agent of Miss Doty, authorized by her to undertake the transportation of the boys from Soda Springs to Paris for her and on her behalf. In other words, Miss Doty is held legally liable for each and every act done or performed by Garst as though she had been personally present and personally performed each and every act that was done or performed by Garst, this in the absence of any contractual relationship between her and Garst or between her and the school district. The rule would seem to be that one who borrows a car for his own use is a gratuitous bailee and not an agent of the owner. (Gochee v. Wagoner, 257 N.Y. 344, 178 N.E. 553.) In Puryear v.Martin, (Tex.Civ.App.) 13 S.W.2d 203, it is held:

"In the absence of liability imposed by statute, the owner of an automobile is not liable for the negligence of the party to whom the property is loaned when using it upon an enterprise of his own."

In Schneider v. McAleer, 39 Ariz. 190, 4 P.2d 903, in the course of the opinion it is held:

"The relation of master and servant, or of employer and employee, was not established by the evidence. It does show the relation of bailor and bailee. The car was loaned to Mrs. Miller to go on an errand for her sole benefit, and while she had it in her possession, and before her errand was completed, the accident occurred in which the appellant and his car was damaged. In such circumstances, the law is well stated in 42 C. J. 1116, sec. 873, to be: 'except as liability may be imposed by statute, or the owner may have been guilty of personal negligence, as where he has knowingly entrusted his vehicle to an incompetent driver, the owner is not liable for the negligence of a hirer or borrower to whom he had relinquished control over the vehicle, and who is using it exclusively for his own purposes.' "

Appellant loaned her car to Garst, not for her benefit, but for his benefit or for the benefit of the school district. Garst was over the age of sixteen years, a careful driver, competent in every way to be entrusted with the loan of the car, and the accident happened before the purposes of the loan had been completed. Clearly the relationship of master and servant or that of principal and agent did not exist nor did any other legal relationship exist such as would create a liability against appellant. The rule announced in the foregoing case is applicable to the facts of the instant case. It is held in S. B. McMaster, Inc., v. Chevrolet Motor Co.,3 Fed. (2d) 469, that:

"There are two distinctly essential elements in an 'agency.' The first is that the agent acts, not for himself, but, for another; and the second is that his acts, within the scope of his authority must be binding upon his principal."

To the same effect see the following cases: Cornish v.Kreuer, 179 Minn. 60, 228 N.W. 445; Posey v. Krogh, 65 N.D. 490,259 N.W. 757; Reis v. Gentry, (Mo.) 87 S.W.2d 1037;Packard-Louisville Motor Co. v. O'Neal, 248 Ky. 438,58 S.W.2d 630.

I am also of the opinion the judgment should be reversed because of the prejudicial remarks of one of counsel for respondent while making his closing argument to the jury as follows:

"That you have a right to draw on your experience as business men in determining the facts in this case and what you know from your experience as business men that prudent automobile owners usually protect themselves against just such contingencies as are involved in this case."

Upon the making of the above-quoted remarks by respondent's counsel appellant moved for a mistrial basing his motion upon the theory that they suggested that the appellant was carrying insurance and would not have to pay any judgment the jury might render, and, that there was no evidence to support such a theory. The court refused to declare a mistrial but directed counsel for respondent not to argue the point further and directed the jury to disregard that part of counsel's argument. However, the prejudicial effect of the remarks was not cured by the court instructing the jury to disregard that part of counsel's argument. Nothing can be gleaned from the remarks made by learned counsel other than that he, intentionally or otherwise, clearly and unmistakably impressed upon the minds of the jurors that appellant carried insurance on her car and that she personally would not be called upon to pay any verdict that might be rendered against her. Error for injecting the question of insurance in a case of this character is quite clearly stated in Cyclopedia of Automobile Law, Blashfield, Ninth Volume, section 6291, as follows:

"The general rule of almost uniform enforcement in motor vehicle accident cases is that the jury should not be informed of the fact that the defendant is protected by indemnity insurance, either by the voir dire examination of the witnesses, or statements of counsel during the trial. Evidence purposely intended to show the defendant carried liability insurance on the vehicle involved in the case is, therefore, never admissible in support of a charge of negligence. . . . .

"The error in getting such evidence before the jury in most states is reversible, notwithstanding the Court may instruct the jury not to consider the same in arriving at their verdict."

It is held in Texas N. O. R. Co. v. Owens, (Tex.Civ.App.)54 S.W.2d 848, that:

"Attorney's improper argument requires reversal if there is reasonable doubt of harmful effect."

What the verdict of the jury would have been had these remarks not have been made is impossible to determine. As I read and understand the statement, and I am satisfied it would be so understood by the ordinary juror, it in effect stated that Miss Doty being a prudent person had protected herself by insurance against just such an unfortunate accident as happened upon the occasion to which reference has been made. The rule stated in Wagnon v. Brown, 169 Okl. 292, 36 P.2d 723, is as follows:

"In personal injury action, remark of plaintiff's attorney in closing argument designed to acquaint jury with fact that defendants were protected by insurance held prejudicial error."

The following cases support the rule above stated:Schellenberg v. Southern California Music Co., 139 Cal. App. 777,35 P.2d 156; Landry v. Hubert, 100 Vt. 268,137 A. 97; Leonard v. Stepp, 175 Okl. 487, 53 P.2d 1110; Hankinsv. Hall, 176 Okl. 79, 54 P.2d 609; Beatrice Creamery Co.v. Goldman, 175 Okl. 300, 52 P.2d 1033; Gaskill v. Amadon,179 Wash. 375, 38 P.2d 229; Curtis v. Ficken, 52 Idaho 426,16 P.2d 977.

An examination of the instructions given discloses the fact that nothing is said in any of them with respect to the law applicable, provided the car was only loaned by Miss Doty to Garst. In other words, the trial court failed to instruct upon appellant's theory of the case. The rule is stated in 14 Rawle C. L., p. 799, sec. 58, as follows:

"A party to a suit is entitled to have instructions given at his request presenting his theory of the case and based upon the pleadings and proof. If his opponent relies on a different theory he likewise may rely on instructions conforming thereto. A party is also entitled to have the law applied to the facts of his case, provided he requests a special charge, even though the Court may be of the opinion that such fact is not established by a preponderance of the evidence, and a refusal to charge the jury on a point material to the cause and upon which evidence has been received is error."

Appellant offered instruction number 7, which was refused, and which reads as follows:

"You are instructed, Gentlemen of the Jury, that under the law of Idaho an owner of an automobile who loans it to a person over the age of sixteen years is not liable for the negligence of the driver of said car, unless at the time of loaning said car the owner should have reasonably expected the driver to have operated the car negligently. If, therefore, you find in this case that Charlotte Doty loaned the car to Russell Garst and Russell Garst appeared to her to have been a reasonably prudent driver and that the said Russell Garst was not in the employ or engaged in the business of said Charlotte Doty at the time of said accident, then you must find for the defendant even though you should find the said Russell Garst was negligent."

Appellant had positively testified that Garst was approximately 22 years of age, that she loaned the car to Garst, and that she understood him to be a careful driver. The evidence is undisputed that Garst was not in the employ or engaged in the business of appellant at the time of the accident. Appellant was entitled to have the above instruction given, the rule of law being to the effect that if the car was loaned, if Garst was not in the employ or engaged in the business of appellant, and although Garst was negligent, appellant could not be held liable in damages as a result of the accident. Garst was in the employ of the school district, engaged by the school district to coach athletics, with authority to transport the team in competitive athletic contests. Acting under such employment he borrowed appellant's car, not to engage in any business for appellant nor in connection with any duty she had to perform. The school district through Garst made it possible, by purchasing gasoline, for the car to be used. If there was a relationship of principal and agent it existed between the school district and Garst and not between Garst and appellant.

The judgment should be reversed and the cause remanded for further proceedings as herein indicated.