DocketNumber： 18475_1
Judges： Van Oosterhout, Gibson, Heaney
Filed Date： 6/29/1967
Status： Precedential
Modified Date： 11/4/2024
This action by Ben Massey and Mrs. Ben Massey is for the recovery of damages sustained arising as a result of a collision occurring about 10:45 p. m. on May 17, 1963, on Highway 67 at its intersection with State Highway 36, near Searcy, Arkansas, between a tractor-trailer unit operated by Ben Massey traveling south on Highway 67 and a tractor owned by the defendant Hugh Breeding, Inc., and operated by the defendant Bobby Breeding which was proceeding in a northerly direction and was turning left off Highway 67 onto Highway 36.
Liability of the driver Bobby Breeding is predicated upon his negligent operation of the tractor and liability of Hugh Breeding, Inc., is based upon such negligent operation within the scope of employment and upon the additional basis of negligent entrustment of the vehicle to an incompetent driver. Punitive damages are claimed only on the negligent entrustment claim and only as against Hugh Breeding, Inc.
It is .undisputed that Ben Massey suffered severe personal injuries as a result of the collision. No claim is made upon this appeal that the damages awarded are excessive and evidence as to extent and nature of the injuries does not appear in the record. Mrs. Massey’s claim is based on loss of consortium.
This action was commenced in the state court and removed to the federal court. Jurisdiction, based upon diversity of citizenship and the requisite amount is established.
The case was tried to a jury and submitted upon interrogatories which, together with the jury’s answers thereto, read:
“1. Do you find from a preponderance of the evidence that defendant Bobby Breeding was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?
Answer: Yes.
(Yes or No)
“2. Do you find from a preponderance of the evidence that plaintiff Ben*174 Massey was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?
Answer: No.
(Yes or No)
“3. (This interrogatory related to the percentage of negligence of the respective parties and was to be answered only if plaintiffs were guilty of contributory negligence. The interrogatory was not answered.)
“4. Do you find from a preponderance of the evidence that Bobby Breeding was acting in the course and scope of his employment by Hugh Breeding, Inc., at the time of the collision?
Answer: Yes.
(Yes or No)
“5. Do you find from a preponderance of the evidence that Hugh Breeding, Inc., had negligently entrusted the vehicle involved to Bobby Breeding at the time of the collision and that such negligent entrustment was a proximate cause of the collision?
Answer: Yes.
(Yes or No)
“6. What do you find from a preponderance of the evidence to be the actual or compensatory damages suffered as a proximate result of the collision by the respective plaintiffs?
Answer: Ben Massey . . $115,000 Mrs. Ben Massey $ 25,000
“7. Do you find from a preponderance of the evidence that Hugh Breeding, Inc. was guilty of wilful and wanton misconduct in entrusting the vehicle involved to Bobby Breeding ?
Answer: Yes.
(Yes or No)
“8. If your answer to Interrogatory No. 7 was ‘Yes’, do you award punitive damages to the plaintiffs against defendant Hugh Breeding, Inc.?
Answer: Yes.
(Yes or No)
If your ahswer is ‘Yes’, in what amount?
Answer:
Ben Massey.....$25,000.00
Mrs. Ben Massey . . $10,000.00”
The answer to each interrogatory was signed by the jury foreman.
Pursuant to the interrogatory answers, judgment was ehtered against both defendants for actiial damages in favor of Ben Massey for $115,000 and Mrs. Ben Massey for $25,000, and in addition punitive damages weré awarded against Hugh Breeding, Inc., in favor of Ben Massey for $25,000 and Mrs. Ben Massey for $10,000. Motions for judgment n. o. v. and new trial weie made and overruled. This timely appeal followed.
The points relied upon for a reversal are thus stated by appellants (appellants will in this opinión usually be referred to as defendants):
“I. The motión of Hugh Breeding, Inc., for a directed verdict should have been granted.
“II. The jury should have been instructed as a matter of law that Bobby Breeding was not in the course and scope of his employment by Hugh Breeding, Inc., at the time of the occurrence complained of.
“III. The Couirt should have instructed the jury ás a matter of law that Hugh Breeding, Inc., did not negligently entrust the vehicle to Bobby Breeding at the time of the occurrence complained of.
“IV. The Court etred in submitting to the jury the issue of punitive damages and in permitting testimony as to the net worth of Hugh Breeding, Inc.
“V. The Court erred in permitting the introduction of testimony concerning arrests, convictions and pleas of guilty of Bobby Breeding on occasions prior to May 17, 1963.”
Hugh Breeding, Inc., made timely motions for directed verdict, for judgment n. o. v. and to withdraw issues II and III hereinabove stated from the jury, and the defendants have preserved for
Before reaching the legal issues, we will summarize the material facts. Bobby Breeding is the grandson of Hugh Breeding, president and principal shareholder of the Company, and the nephew of Cecil and Lyle Breeding, vice-presidents of the Company. When first hired by the Company, at age eighteen, in 1949 or 1950, he worked during summer vacations greasing and washing, and changing tires. He subsequently spent eight years in the Army and Navy. On July 20, 1960, after his discharge, he was rehired by the Company. Initially, he worked part-time after school on jobs similar to those he had done during summer vacations in 1949-1950; however, after about four months, he quit school and asked to drive a truck for the Company. He was hired by the Company as a driver after he had undergone a month’s training as a student driver, during which he made several .trips with experienced drivers without pay.
The Company never required Bobby Breeding to submit the personal history form usually required of driver applicants. He continued as a Company driver until the accident, May 17, 1963. He had no accidents or arrests while driving Company vehicles during this period.
Bobby Breeding was in three accidents with his own automobile which involved drinking and driving between 1955 and the date of his reemployment. These occurred in Noel, Missouri, in 1955; between Anderson and Langley, Missouri, in 1958; and in Okmulgee, Oklahoma, April 1, 1960 (minor accident). He was also involved in a drinking and driving incident in Okmulgee, Oklahoma on May 4, 1960 (no accident). Hugh Breeding knew about the 1955 and 1958 accidents, and Cecil Breeding knew about the others.
Bobby Breeding was involved in another accident with his own automobile near Tulsa, Oklahoma, in 1962. The Company safety manager and dispatcher were informed about this accident. These five incidents were the only evidence introduced to show Bobby Breeding’s addiction to the use of intoxicating liquors or to establish his habit of driving while intoxicated. There is no evidence to establish that Bobby Breeding was intoxicated at any prior time while operating the corporate defendant’s vehicles.
A few" days prior to the accident involved in'.the present case, Bobby Breeding, with a relief driver, picked up a load of missile fuel at Denver, Colorado, dropped the truck-trailer for unloading at a missile site near Searcy, Arkansas, and drove the truck-tractor to a Searcy motel.
The Company provided the Searcy motel quarters at its own expense. In addition to the accommodations, the Company also paid Bobby Breeding $24.00 a day, during the layover while he was awaiting unloading oí the truck-trailer. He was on Company call twenty-four hours a. day.
Although the Company had made some arrangements for the drivers to eat at the motel, Bobby Breeding ate there only once or twice, because he considered the food poor and the prices high. (The drivers paid for their own meals.) He and the other driver used the truck-tractor to go out on the highway and eat and “this sort of thing” during the three-day layover prior to the accident.
About 6:00 p. m. on the night of the collision, Bobby Breeding took his relief driver to the Searcy bus station, using the truck-tractor, per telephone instructions from the Company’s main terminal at Tulsa, Oklahoma. Thereafter, he drove the truck-tractor to a truck stop on Highway 67 intending to eat. On the way, he stopped and purchased a pint of whiskey. This bottle was found half empty immediately after the accident. At the truck stop, he had two drinks of whiskey but did not eat. He washed the truck windshield and kicked the truck tires. The accident occurred on the return trip from the truck stop to the motel.'
There is no purpose in summarizing the facts relating to the collision as the sufficiency of the evidence to establish that Bobby Breeding was guilty of negligence is not challenged.
I.
The trial court properly overruled the motions of Hugh Breeding, Inc., for a directed verdict and judgment n. o. v. In determining the sufficiency of the evidence to support a verdict, the established rule is that the evidence, including all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the prevailing party. Dun & Bradstreet, Inc. v. Nicklaus, 8 Cir., 340 F.2d 882, 885; Hanson v. Ford Motor Co., 8 Cir., 278 F.2d 586, 590.
The motions would be entitled to be sustained only if there is no substantial evidence to support any ground for recovery. Liability is predicated upon two theories, to wit, negligence of Bobby Breeding within the scope of his employment by Hugh Breeding, Inc., and negligent entrustment. Our examination of the record satifies us that substantial evidentiary support exists for the submission to the jury of both bases for recovery. Our reasons therefor are more particularly set out at points II and III hereinafter.
We note that Bobby Breeding made no motion for directed verdict. The evidence likewise clearly shows a fact issue exists with respect to his liability.
II.
Hugh Breeding, Inc., excepted to an instruction given which submitted to the jury the issue of whether Bobby Breeding was acting within the scope of his employment at the time of the accident and to the court’s refusal to instruct as a matter of law that Bobby Breeding was not then acting within the scope of his employment. The court committed no error in its rulings.
Arkansas has adopted the rule that when it is indisputably shown that at the time of a collision, an employee is driving a vehicle owned by an employer, an inference or presumption of fact arises that the employee was acting within the scope of his employment and in furtherance of his master’s business. Curtis Circulation Co. v. Henderson, 232 Ark. 1029, 342 S.W.2d 89; Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S.W. 2d 1010, 1012.
In Curtis, the court held that the presumption had not, as a matter of law, been rebutted, although both an employee and a passenger in the employer’s automobile testified that the driver was not on the employer’s business at the time of the accident.
While the presumption applied in Curtis may be overcome by evidence to the contrary, the evidence here does not compel such a result. Fuqua v. Deapo,. D.C., 34 F.R.D. Ill; Capital Transp. Co. v. Armour & Co., 8 Cir., 200 F.2d 722; Ford & Son Sanitary Co. v. Ransom, 213 Ark. 390, 210 S.W.2d 508, 509; 9 Wigmore, Evidence § 2491 (3d ed.). It is undisputable that Bobby Breeding was (1) several hundred miles from the main Company terminal at Tulsa, Oklahoma, (2) entirely alone and in charge of the truck-tractor, (3) provided with money to purchase his food, (4) on call by the Company twenty-four hours a day, and (5.) receiving pay during the layover.
In addition to the above, there was obvious disagreement or misunderstanding over the extent of Bobby Breeding’s authority to use the truck. Lyle
Even if the existence of a Company rule is assumed, there was evidence from which the jury could have found that Bobby Breeding had authority to use the truck to obtain meals or to service the truck. While denying that Bobby Breeding had any authority to use the truck on the night of the accident, Lyle Breeding, on cross-examination, admitted that a driver could use a truck to obtain food depending on the availability of the places to eat in a particular locality. Bobby Breeding stated in a deposition that it was permissible to take the truck down and get it serviced.
Moreover, it is not disputed that Bobby Breeding had instructions from his employer to drive his relief driver to the bus station. The record does not disclose whether Bobby Breeding drove directly from the bus station to the truck stop or whether the truck stop was on a direct route from the bus station to the motel, or if it was not, the extent of the deviation. Thus the evidence of deviation under all the circumstances disclosed by the record is not such as to compel a determination as a matter of law that the trip as a whole was a deviation from the scope of employment. See Healey v. Cockrill, 133 Ark. 327, 202 S.W. 229, L.R.A.1918D, 115, Prosser, Torts § 63 (2d ed. 1955); Restatement 2d, Agency §§ 228-237.
III.
The court properly instructed the jury on the issue of negligent entrustment. Its refusal to instruct the jury, as a matter of law, that the Company did not negligently entrust the vehicle to Bobby Breeding was not error, and the court properly denied the appellants’ motion for a directed verdict on this issue. See Rook v. Moseley, 236 Ark. 290, 365 S.W.2d 718; Arkansas-Louisiana Lbr. Co. v. Causey, 228 Ark. 1130, 312 S.W.2d 909; Chaney v. Duncan, 194 Ark. 1076, 110 S.W.2d 21; Annot., 168 A.L.R. 1364 (1947); Annot., 100 A.L.R. 920 (1936); Restatement 2d, Torts § 390 (1966).
While there was little evidence to indicate that Bobby Breeding was addicted to the use of intoxicating liquor, there was substantial evidence to indicate that he had driven his personal vehicle several times while under its influence, and that he was accident prone on such occasions. There was also substantial evidence to indicate that officials of the Company were aware of the above.
Ill (A).
Hugh Breeding, Inc., in support of point III presents the further argument that the theories of respondeat superior and negligent entrustment are alternative grounds for liability and that recovery for negligent entrustment can be made only when respondeat superior liability does not exist, and hence when the jury found for plaintiffs on the scope of employment issue, consideration of the negligent entrustment theory was foreclosed. This contention is based on the proposition that the two theories of recovery are mutually exclusive and that it was error to submit both issues. Such position is not supported either by authority or logic. Rule 8(e), Fed.R.Civ. P., expressly provides: “A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether
The right of a plaintiff to try his case on alternate theories has uniformly been upheld in the federal courts and plaintiff cannot be required to elect upon which theory to proceed. Campbell v. Barnett, 10 Cir., 351 F.2d 342, 344; Pulliam v. Gulf Lumber Co., 5 Cir., 312 F.2d 505, 507; Herlihy Mid-Continent Co. v. Bay City, 6 Cir., 293 F.2d 383, 385; see 2A Moore’s Federal Practice ff 8.31 [2].
This case was submitted to the jury on special interrogatories without a general verdict, as authorized by Rule 49(a). No objections were made to the interrogatories submitted. All of the answers of the jury to the interrogatories are supported by substantial evidence and none of such answers is inconsistent with any other answer.
It is entirely possible under an appropriate evidentiary setting to sustain a finding of liability under both scope of employment and negligent entrustment, prove one but not the other, or prove neither. The advantage of the special interrogatories submission over a general verdict is that if an appellate court finds liability supported under one theory but not the other, it is then possible to determine whether the jury made the requisite fact finding to support the judgment.
The judgment of the trial court in this case is fully supported by the fact issues determined by the interrogatories. Plaintiffs have of course but one cause of action to recover for the wrong done by the defendants in this particular collision and can make no additional recovery so far as actual damages are concerned by asserting two theories of recovery. See Towle v. Boeing Airplane Co., 8 Cir., 364 F.2d 590, 592-593. The actual damages incurred under each theory asserted are the same and no double recovery has been awarded by the judgment entered.
In the instant case, we do not have before us a situation where liability has been admitted on the scope of employment theory. In such a situation, some cases such as Shielee v. Hill, 47 Wash. 2d 362, 287 P.2d 479, do not permit proof of negligent entrustment when liability under the scope of employment theory is admitted upon the basis that such proof is unnecessary to sustain recovery and that hence no occasion arises for permitting the introduction of evidence under the negligent entrustment theory which would not be admissible in scope of employment cases. Hugh Breeding, Inc., both in the trial court and here has consistently urged that the evidence does not support a finding that Bobby Breeding was acting within the scope of his employment. Hence, we are not confronted with the problem of what the Arkansas court would hold if scope of employment were conceded But see Ozan Lumber Co. v. McNeeley, 214 Ark. 657, 217 S.W.2d 341, 8 A.L.R.2d 261; 20 Ark.L. Rev. 101, 106; 8 Am.Jur.2d, Automobiles & Highway Traffic § 573.
No prejudicial error was committed by the submission of interrogatories 4 and 5 to the jury.
IV.
Defendants’ brief point IV raises two issues, to wit, (1) the sufficiency of the evidence to support punitive damages, and (2) the propriety of admitting evidence on the net worth of Hugh Breeding, Inc. The trial court, in its ruling denying motion for judgment n. o. v. and for a new trial, disposed of the sufficiency of the evidence question by stating:
“I am also convinced that the plaintiffs made a case for punitive dam- ■ ages, and I do not believe that the dicta in Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 [618] (1960), holds otherwise. In the case here there is no issue of joint liability of two defendants. The liability asserted is that of the corporation because of*179 the conduct of its officers, and this is not a liability for which Bobby Breeding can also be held liable. I am convinced that if the question in this case were presented to the Arkansas Supreme Court it would be resolved in favor of the plaintiffs.”
Plaintiffs sought punitive damages only on the negligent entrustment claim and only as to Hugh Breeding, Inc. No Arkansas case has been cited or found passing directly upon whether punitive damages are allowable in negligent entrustment cases. As above noted, Judge Young, the able and experienced trial judge who heard this case, expresses the view that such damages are allowable in Arkansas. We find nothing in the Arkansas cases which would compel a contrary conclusion.
In Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203, the allowance of exemplary damages was upheld. Liability there was based upon respondeat superior and punitive damages against the employer were upheld even though there was no showing of participation, authorization or ratification of the wrongful and wilful act by the employer. The court notes that in some jurisdictions no liability for punitive damages would exist under such circumstances, and then goes on to state:
“But in most jurisdictions, ‘exemplary or punitive damages may be recovered from an employer for acts or omissions of his employee done or omitted to be done in the scope and course of his employment whenever the employee’s acts are of such character as to form the basis for an allowance of exemplary damages, even though these acts were done without the employee’s [employer’s] knowledge or authorization and were not subsequently ratified by him, regardless of whether he did or did not know the servant to be incompetent or disqualified for the service in which he was engaged.’ ” 210 S.W.2d 293, 296.
The court then observes that Arkansas follows the liberal rule stated in the quotation immediately above. In Life & Casualty Ins. Co. of Tenn. v. Padgett, Ark., 407 S.W.2d 728, 729, the Arkansas court with respect to the liability of the master for a wilful tort of the servant, states:
“We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant’s intentional tort ‘if the act was not unexpectable in view of the duties of the servant.’ Restatement, Torts (2d), § 245 (1958).”
In Dun & Bradstreet, Inc. v. Nicklaus, 8 Cir., 340 F.2d 882, a libel and slander case arising under Arkansas law, we followed the standard for determining malice set forth in Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W. 2d 34, stating:
“The applicable standard, as stated in the Robinson case, is that plaintiff need not show malice on the part of the defendant in the moral sense (hate, vindictiveness, animosity), but need only show the doing of an act without just cause or excuse, which is in reckless disregard as to its results upon the rights of others. We think that there was sufficient evidence of ‘conscious indifference’ for the district court to properly submit this issue and the matter of punitive damages to the jury.” 340 F.2d 882, 886.
From the foregoing authorities, it would appear that the Arkansas court when faced with a choice tends to follow the more liberal rule with respect to allowance of punitive damages.
The court by interrogatory number 7, supra, submitted to the jury the issue of whether Hugh Breeding, Inc., was guilty of wilful and wanton misconduct in entrusting its vehicle to Bobby Breeding. We believe that there is adequate evidence of prior intoxication on the part of Bobby Breeding and knowledge thereof by the corporation to support the affirmative answer of the jury on this issue.
On the second issue raised on this brief point, appellants urge that
In Padgett, the jury allowed $15,000 actual damages and $35,000 punitive damages against both the employer and the servant. The extent of injuries incurred in the fight are not shown in the opinion. The court held that the admission of testimony of the financial status of the corporate defendant was erroneous and prejudicial with respect to both actual and punitive damages. The case was remanded for a new trial. The basis of the decision appears to be that one defendant should not be punished for his co-defendant’s wealth. The reasoning for the decision in Padgett does not apply to the judgment here against Hugh Breeding, Inc. The evidence is that the corporate defendant’s net worth is $562,-€00. There is no substantial evidence as to Bobby Breeding’s net worth. If the corporation had been sued alone, evidence of its net worth would be admissible on the punitive damage issue. We cannot conceive of any possible prejudice to the corporation by the joinder of Bobby Breeding as a defendant. The situation with respect to Bobby Breeding is somewhat different and presents a more troublesome problem. Neither of the defendants has raised before us the issue that actual or punitive damages awarded were excessive. They have not chosen to set out in the record the evidence relating to damages. Judge Young, who heard all the evidence, in his order overruling defendants’ motions, states:
“Neither do I think the damages to be excessive. The proof actually would have supported higher amounts for compensatory damages to both Mr. and Mrs. Massey. The amounts or punitive damages were, of course, within the reasonable discretion of the jury, and under the facts I do not think their awards were excessive.”
The trial court gave proper and detailed separate instructions with respect to the assessment of actual and punitive damages. We find no basis in the present record for assuming that the jury did not follow such instructions, particularly in the absence of a showing that the damages are excessive. No punitive damages were allowed or assessed against Bobby Breeding.
We believe that what was said in Padgett relative to the damage issues applies to the fact' situation in that particular case. It would seem that the issue of whether the reception of objectionable evidence constitutes prejudicial error cannot be covered by any general rule but must be determined on a case-to-case basis upon the record in the particular case. This case is distinguishable from Padgett on the ground that exemplary damages are claimed only against the corporate defendant, and also likely upon the basis that the actual damages here are far more severe than those apparent in Padgett.
Moreover, appeals from federal district courts are subject to the harmless error rule, Rule 61 Fed.R.Civ.P., which applies to the effect of erroneous admission or exclusion of evidence.
We are not persuaded that the admission of evidence of Hugh Breeding, Inc.’s, net worth had any prejudicial effect on the amount of actual damages awarded against Bobby Breeding.
V.
Finally, defendants urge that the court erroneously received testimony concerning Bobby Breeding’s arrests, convic
A plea of guilty to an offense directly related to plaintiffs’ cause of action is admissible as a declaration against interest. Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758. However, a plea of guilty to an offense at some prior time is generally not admissible even for impeachment purposes. Garver v. Utyesonich, 235 Ark. 33, 356 S.W.2d 744.
In negligent entrustment cases, a crucial issue is the habit or propensity creating incompeteney — here driving while intoxicated — and proof that the entrustor of the vehicle is charged with knowledge of the habit. In such cases, Arkansas permits proof of either specific acts or general reputation in the community. Arkansas-Louisiana Lumber Co. v. Causey, 312 S.W.2d 909. Pleas of guilty to traffic offenses are relevant as specific acts in negligent entrustment cases. Arkansas-Louisiana Lumber Co. v. Causey, supra; Chaney v. Duncan, 110 S.W.2d 21, 22; see 20 Ark.L.Rev. 101, 103.
In our present case, knowledge of the driver’s incompeteney is established by knowledge of the managing officers of the corporation of the convictions. The court in its instructions in plain terms advised the jury of the limited purposes for which such testimony could be considered and told the jury that such evidence was not admissible and could not be considered as having any bearing upon the question of whether Bobby Breeding was intoxicated or negligent at the time of the accident involved in this case. Defendants have not satisfied us that any prejudicial error was committed in receiving such testimony here under consideration.
We have examined the record and are satisfied that the defendants and each of them in all respects had a fair trial. The instructions of the court were entirely fair. No exceptions to instructions or failure to give any requested instruction other than those hereinabove are made a ground for reversal.
The judgment is affirmed.