Webster v. Mountain States Telephone & Telegraph Co.

When defendant Morrison took his own automobile and selected the time and route of making a trip for the personal benefit of himself and family, he and his auto were not, as shown by the authorities cited below, during such time "entirely under the control and direction" (sec. 7794, Rev. Codes) of the Telephone Company and, therefore, the company cannot be held liable for his acts during that time. (5 Blashfield Cyc. of Automobile Law, sec. 3078, at p. 236; Hantke v. Harris Ice Mach. Works, 152 Or. 564,54 P.2d 293; Erickson v. Great Northern Ry. Co.,191 Minn. 285, 253 N.W. 770 (squarely in point); Reinhard v.Universal Film Exchange, 197 Minn. 371, 267 N.W. 223; Khoury v. Edison Elec. I. Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159; Reardon v. Coleman Bros. Inc., 277 Mass. 319,178 N.E. 638; Nevins v. Roach, 249 Mich. 311, 228 N.W. 709;Harrington v. H.D. Lee Mercantile Co., 97 Mont. 40,33 P.2d 553; Coombes v. Letcher, 104 Mont. 371,66 P.2d 769; Doheny v. Coverdale, 104 Mont. 534, 68 P.2d 142;Clark v. Shea, 130 Or. 195, 279 P. 539; American Nat. Ins.Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409; American Nat. Ins. Co. v. Kennedy, (Tex.Civ.App.)101 S.W.2d 825; American Nat. Ins. Co. v. O'Neal, (Tex.Civ.App.) 107 S.W.2d 927; Wesolowski v. John Hancock MutualLife Ins. Co., 308 Pa. 117, 162 A. 166, 87 A.L.R. 787.) See, also, the following cases where the liability of the employer for acts of servant in driving his own car was denied: Wescott v.Young, 275 Mass. 82, 175 N.E. 153; the next four cases cite with approval the Khoury Case, supra; Stockwell v. Morris,46 Wyo. 1, 22 P.2d 189; Rathbun v. Payne, 21 Cal. App. 2d 49,68 P.2d 291; American S.L. Ins. Co. v.Riplinger, 249 Ky. 8, 60 S.W.2d 115; Adams v. Tuxedo LandCo., 92 Cal. App. 266, 267 P. 926; Carnes v. Pacific Gas Elec. Co., 21 Cal. App. 2d 568, 69 P.2d 998,70 P.2d 717; Hutchins v. John Hancock Mut. Life Ins. Co., (N.H.)192 A. 498; Parker Motor Co. v. Northern Packing Co., 58 N.D. 685,227 N.W. 226.

The motions of the telephone company for a nonsuit and for a directed verdict should also have been granted upon the ground that the plaintiff's evidence conclusively shows that he was guilty of contributory negligence in not seeing Morrison's automobile approaching and in failing, while approaching from the south onto the traveled portion of the highway, to look to the west after leaving the sidewalk along the north side of his store and before entering onto such portion thereof. It stands undisputed that he failed to do this.

A person is presumed to see that which he could have seen by looking and will not be permitted to say he did not see or know what he must have seen or known had he looked. (Autio v.Miller, 92 Mont. 150, 11 P.2d 1039; Boepple v. Mohalt,101 Mont. 417, 54 P.2d 857.) Therefore, as a matter of law, the case stands the same as if plaintiff had seen the auto coming and walked or ran directly in front of it. (Brown v. Lilli,281 Mich. 170, 274 N.W. 751.)

The rule repeatedly announced by this court where persons so approach a railroad track should apply equally to a person approaching the oiled portion of a highway on which autos usually travel, although we concede the weight of authority is to the effect that the rule applicable to railroad crossings does not apply to highway crossings generally. The danger zone was the oiled portion and plaintiff knew it. (George v. Northern P.Ry. Co., 59 Mont. 162, 196 P. 869; Normandin v. Payne,65 Mont. 543, 212 P. 285; Roberts v. Chicago, Milwaukee St.P. Ry. Co., 67 Mont. 472, 216 P. 332; West v. Davis,71 Mont. 31, 227 P. 41, Grant v. Chicago, Milwaukee St. P.Ry. Co., 78 Mont. 97, 252 P. 382.) A similar rule has been applied in cases involving collisions beween pedestrians and automobiles on highways. (Weaver v. Pickering, 279 Pa. 214,123 A. 777; Bakkum v. Holder, 135 Or. 387, 295 P. 1115;Russell v. Vergason, 95 Conn. 431, 111 A. 625; Horton v.Stoll, 3 Cal. App. 2d 687, 40 P.2d 603; Flores v. LosAngeles Ry. Corp., 15 Cal. App. 2d 576, 59 P.2d 856;Moss v. H.R. Boynton Co., 44 Cal. App. 474, 186 P. 631;Faucett v. Bergmann, (D.C.) 22 F.2d 718; Brickell v.Trecker, 176 Wis. 557, 186 N.W. 593; Ebel v. Rehorst,212 Wis. 122, 248 N.W. 799; Gibb v. Cleave, 12 Cal. App. 2d 468,55 P.2d 938; Hamblet v. Soderburg, 189 Wash. 449,65 P.2d 1267.) In this appeal, only two questions are involved: 1. Was Morrison acting in the course of and within the scope of his employment by the telephone company at the time of the accident? 2. Was the respondent Webster guilty of contributory negligence as a matter of law?

Morrison was a regularly employed lineman for the telephone company; he worked with a gang, in charge of a foreman, which traveled from town to town in Montana doing work for the company; he on several occasions, used his own car in moving with the knowledge of his foreman; on September 11, 1936, the day of the accident, he was ordered by the foreman to go from Roundup to Miles City, and went there in his own car with the knowledge of the foreman, for the purpose of finishing a job he had started; he was under the control of the foreman while he was making the trip from Roundup to Miles City; was paid on an hourly basis by the day and not by the week; he testified that he was "on company time" until 5 o'clock on September 11, and was paid his regular wage for that day; the accident happened at 4:30; immediately after the accident, Morrison stated that he was working for the telephone company and had to "get to his job."

Does the evidence show that Morrison, at the time of the accident, was engaged in the scope of and within the course of his employment? We submit that it does. It is to be noted that the cases dealing with this question fall into two main groups. Those cases following the majority rule and that constitute the decided weight of authority hold that the fact that the servant owned or hired the vehicle used by him, and which caused the injury, will not preclude the injured person from recovering from the employer if (a) the activity engaged in by the servant at the time the tort was committed was within the scope of his employment and (b) if the servant's use of the vehicle was either expressly or impliedly authorized by the employer.

The cases following the minority view hold that, in order to hold the master liable, it must appear, in addition to (a) and (b) above, that the master had control of his employee as to the operation and management of his car. This particular point has been carefully annotated in 57 A.L.R. 739, 60 A.L.R. 1163, 87 A.L.R. 787, and 112 A.L.R. 920. The majority rule is stated by the annotator in 112 A.L.R., page 921, as follows: "If the circumstances involved in the case show that the activity in which the servant was engaged at the time of the tort complained of was within the scope of his employment, the fact that the automobile or other vehicle used by him, and which caused the injury, belonged to or was hired by the servant, will not preclude the person injured from recovering from the employer, if the servant's use of the vehicle was, either expressly or impliedly, authorized by the employer." It is especially to be noted that among the cases cited in the annotation following the quoted statement are to be found two Montana cases: Meinecke v. Intermountain Transp. Co.,101 Mont. 315, 55 P.2d 680; Doheny v. Coverdale, 104 Mont. 534,68 P.2d 142. The rule as expressed in these two cases has a solid background of well-reasoned cases for its authority and precedent. (See, also, Ellinghouse v. Ajax Livestock Co.,51 Mont. 275, 152 P. 481, L.R.A. 1916D, 836.) In the MeineckeCase, this court, in announcing the rule in Montana, cited as authority the annotations in 87, 60 and 57 A.L.R. In those annotations appears the leading case on the side of the minority rule, that of Khoury v. Edison Elec. I. Co., 265 Mass. 236,164 N.E. 77, 60 A.L.R. 1159, cited by appellant. This court chose to disregard the rule enunciated in the Khoury Case. It seems that other courts, too, have disagreed with the Khoury Case. (Cook v. Sanger, 110 Cal. App. 90, 293 P. 794; Curcic v.Nelson Display Co., 19 Cal. App. 2d 46, 64 P.2d 1153;Heintz v. Iowa Packing Co., 222 Iowa, 517, 268 N.W. 607; see, also, Wilson v. Steel Tank Pipe Co., 152 Or. 386, 52 P.2d 1120; Marchand v. Russell, 257 Mich. 96, 241 N.W. 209.)

The witness Bender testified that when he said, after the accident, that Morrison should be held, Morrison said: "You don't have to hold me. I got to get to my job and I'm working for the telephone company." Many cases hold that statements similar to this are admissible as part of the res gestae to show that the servant was acting within the scope of his employment at the time of the accident. (DuBois v. Powdrell, 271 Mass. 394,171 N.E. 474; Ahlberg v. Griggs, 158 Minn. 11, 196 N.W. 652; Barz v.Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361; Lang Floral Nursery Co. v. Sheridan, (Tex.Civ.App.) 245 S.W. 467;Chantry v. Pettit Motor Co., 156 S.C. 1, 152 S.E. 753.)

Webster was not contributorily negligent. Regardless of how plaintiff got on the crossing, it was Morrison's duty to avoid running into him if it was possible to do so. Appellants contend that he should have kept a continuous lookout. This is not the law, and never has been. In fact a pedestrian crossing a street at a regular crossing is not bound to look at all. (Berry on Automobiles, sec. 3.192; Redick v. Peterson, 99 Wash. 368,169 P. 804.)

"A pedestrian lawfully crossing a public thoroughfare is not bound as a matter of law to look continuously for automobiles." (79 A.L.R. 1073, 1082.) As Webster had looked once on approaching the crossing and looked again as he was about to step on the crosswalk and saw no cars in the block to the west of him, it was not incumbent upon him to look again. He knew from experience that he could at least reach the center of the highway before a car driven 25 miles per hour, which might have been at the beginning of the block 300 feet away as he stepped on the crossing, would not get to the crossing before he would get to safety. He had a right to assume that Morrison would drive carefully at a reasonable, prudent rate of speed and have his car in such control that it could be stopped quickly. There is no question but what a pedestrian crossing at other than a regular crossing, or crossing between intersections, must use more care than one crossing on an established pedestrian crosswalk. (Berry on Automobiles, sec. 3.200). Here, Webster was crossing on the regular pedestrian crosswalk. As to the duty of a pedestrian crossing a highway at an established pedestrian crossing, the following authorities are in point: 5 Am. Jur., sec. 452, p. 760; Berry on Automobiles, secs. 3.188-3.200; 79 A.L.R. 1073; McKeon v. Kilduff, 85 Mont. 562, 281 P. 345. The rule in California is stated in the following cases in each of which the pedestrian was crossing on an established pedestrian crosswalk and in each case the question of contributory negligence was for the jury:Regan v. Los Angeles Ice etc. Co., 46 Cal. App. 513,189 P. 474; Du Val v. Boos Bros. Cafeteria Co., 45 Cal. App. 377,187 P. 767; Baldock v. Western Union Tel. Co., 127 Cal. App. 141,15 P.2d 199; Pinello v. Taylor, 128 Cal. App. 507,17 P.2d 1038; Grant v. Ryon, 11 Cal. App. 2d 101,53 P.2d 170; Gay v. Winter, 34 Cal. 153, 164;Hollowell v. Cameron, 186 Cal. 530, 533, 199 P. 803;Jones v. Hedges, 123 Cal. App. 742, 753, 12 P.2d 111; Potter v. Driver,97 Cal. App. 311, 275 P. 526; Filson v. Balkins, 206 Cal. 209,273 P. 578; DeLannoy v. Grammatikos, 126 Cal. App. 79, 85,14 P.2d 542; Lam Ong v. Pacific Motor T. Corp., 16 Cal. App. 2d 274,277, 60 P.2d 480; Lowell v. Harris,24 Cal. App. 2d 70, 74 P.2d 551. Plaintiff, a merchant in the town of Custer, brought this action to recover damages as a result of injuries sustained by being struck by an automobile driven by the defendant Morrison, an employee of the defendant company, while crossing as a pedestrian at a street intersection, a federal aid highway passing along Main Street in that town. The verdict and judgment were for the plaintiff. This appeal is from the judgment.

During the progress of the trial separate motions, made on behalf of each defendant, for nonsuit and directed verdict were made and denied. Errors are assigned on these rulings. Both defendants founded their motions upon the ground that plaintiff was guilty of contributory negligence, barring his right to recover, and the defendant Telephone Company moved upon the additional ground that the defendant Morrison was not at the time of the injury acting within the scope of his employment.

Plaintiff's place of business was located at the corner of this street intersection. A concrete sidewalk, 7 feet and 1 inch in width, was along the side of the building occupied by plaintiff on Main Street; this street was 80 feet in width. Along the center of the street for a distance varying from 22 to 24 feet in width was the oiled or paved portion of the highway. On the side of this paved portion, between it and the concrete sidewalk, was a portion of the street 21 feet 9 inches in width, which was graveled. Leading out from the sidewalk to the paved or oiled portion of the street and highway was a concrete crosswalk.

The plaintiff on September 11, 1937, at the hour of approximately 4:30 in the afternoon, desiring to secure some milk from the grocery store across the street, for the purpose of preparing a milk drink for a waiting customer, left his place of business, proceeded across the sidewalk to the curb and looked down the street in a westerly direction. He could see for a distance of some five or six blocks looking westward. He testified that he saw no car approaching within the block. His testimony does not indicate that he looked beyond the block and he testified positively that no car at the time he looked was within this block.

The defendant Morrison was driving his automobile in an easterly direction along the highway on the oiled portion of it at a speed of 45 miles an hour or more according to witnesses for the plaintiff. The plaintiff, after looking to the westward, proceeded in a northerly direction at a rapid walk along the crosswalk onto the paved portion and was struck at or near the center of this portion of the highway by the automobile driven by Morrison. He did not recall looking to the westward after he started along the crosswalk.

It is earnestly contended here that plaintiff could have seen the car driven by Morrison approaching if he had looked, and failing to again look after approaching the edge of the paved portion, he was guilty of contributory negligence as a matter of law.

The traffic regulations through the town of Custer, as[1] indicated by appropriate signs to the westward of the point of the accident, required that the speed through the town should not exceed 25 miles per hour. We have held that a person is presumed to have seen what he could have observed by looking. (Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857.)

At a street crossing a pedestrian need only exercise such[2, 3] reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. Both are required to exercise the degree of care that conditions demand. (McGregor v. Weinstein, 70 Mont. 340, 225 P. 615; McKeon v. Kilduff, 85 Mont. 562, 281 P. 345.) Under the foregoing rule, plaintiff had a right to assume that persons approaching from the west would be driving at a rate of speed not more than 25 miles per hour, and if such were the fact and he had looked upon starting across the street a car traveling at that rate of speed, or less, if he walked rapidly, would not overtake him until he had passed the center line of the paving; whereas one coming at a speed of 45 miles an hour would endanger his passage across the intersection.

In the light of the testimony we cannot say, as a matter of law, that the plaintiff was guilty of contributory negligence, barring his right to recovery, and therefore the trial court properly submitted the question of contributory negligence to the jury.

The defendant Morrison had been employed for some time as a[4] lineman by the defendant Telephone Company at various points in the state. For some three weeks or more preceding this accident, Morrison had been working for the company at Roundup. Prior to that time he was employed by it at Miles City. On the day in question at or near noon he completed his work at Roundup. He was then ordered to report for work at Miles City. The company provided a truck in which the men employed in this "gang" were transported to and from work, and from one town to another. On this day the defendant Morrison was offered the opportunity of riding in this truck from Roundup to Miles City; instead he preferred to take his own private passenger automobile and drive it from Roundup to Miles City in order to transport his wife and children along with him. He paid all the expenses of operating the automobile. He was not required to report at Miles City until time to go to work on the following Monday morning, this accident having occurred on Friday afternoon. He was free to make any choice of routes and make the trip on any day in the interim that suited his convenience. He was paid his usual wages for the afternoon in question by the defendant company, although he was not required to perform any service for them. His superiors knew of his transporting himself and family on previous occasions to be at his next place of work, and knew that he used his own automobile in going from Miles City to Roundup to engage in the work there required of him, and at least impliedly consented that he use his own car in returning to Miles City, where he was ordered to report for work on the following Monday, and where he lived before going to Roundup. He was returning to Miles City over the same route when the accident occurred that was traveled by him in going from Miles City to Roundup, and the same route that the company truck used. His regular work required him to move frequently from place to place. He arrived in Miles City on the evening of the same day that he left Roundup, being the day of the accident. He did not deviate from the regularly traveled route from Roundup to Miles City.

Defendant company contends that its motion for nonsuit should have been sustained on the ground that Morrison was not, at the time of the injury to plaintiff, acting within the scope of his employment with the defendant company. Plaintiff takes the view, and we think correctly, that on this point the case is controlled by that of Meinecke v. Intermountain Transp. Co., 101 Mont. 315,55 P.2d 680, 684. In the Meinecke Case, Torgerson, who maintained an office in Anaconda, was employed by the Intermountain Transportation Company. He made a trip to Butte on business for the company, using a car belonging to another company. After transacting the business of the company in Butte he went to Meaderville on a mission of his own and returned to Butte after midnight and then proceeded from there to Anaconda. The accident occurred while he was returning from Butte to Anaconda. This court pointed out that the fact that Torgerson was driving a car not the property of the Intermountain Transportation Company, and one which he ordinarily used for his own personal service, did not preclude recovery against the company. It held that the case was properly submitted to the jury as to the liability of the Transportation Company. The court in that case also observed: "Under the quoted evidence, Torgerson went to Butte at least in part on a mission for the defendant company and was apparently, viewing the evidence as we must view it, attending to some matters on its behalf in its bus depot while there."

Hence, the fact that Morrison was partially serving his own purpose in transporting his family with him, does not preclude recovery against the defendant company. The test to be applied, is well stated by Chief Justice Cardozo speaking for the court inMarks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183, where he said: "The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. (Clawson v. Pierce-Arrow Motor Car Co.,231 N.Y. 273, 131 N.E. 914.) If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk."

Morrison's work was of the character that required frequent traveling from place to place. The customary use of his own car with the knowledge of his superiors must be held to have also been with the company's consent and at least implied authority. The fact that the employer furnished a truck with which to transport its employees does not relieve it of responsibility where, as here, it impliedly authorized its employee to use his own car. The fact that the employer furnished a truck for that purpose is proof of the fact that the matter of transporting its employees was part of the business of the employer. (Compare, Restatement Agency, sec. 229, illustration 13.) Additionally, Morrison in making the trip to Miles City was acting in obedience to the command of the defendant company to report there for duty. Where, as here, it authorized the employee to use his own car for the purpose of transporting himself, the employee in so doing was acting within the scope of the business of the employer. The rule is well established by the great weight of authority that the servant's negligent use of his own car in the service of the employer, by the express or implied authorization of the employer, renders the employer liable for injuries sustained by a third person as a result thereof. (See note in 87 A.L.R. 787, 57 A.L.R. 739, and 112 A.L.R. 920.)

Defendant relies upon the case of Erickson v. GreatNorthern Ry. Co., 191 Minn. 285, 253 N.W. 770, 771. The facts in that case were very similar to those here. But there the servant's superiors did not know that he at any time used his automobile in going over the route on which the accident occurred. Moreover, the only purpose of the employee using his car was to have the car available for use after his day's work was complete. The court was careful to point out that "the transportation here is not of the individual employee, but a transportation by him of his own vehicle for his personal use and for his personal convenience." Whether we would agree with that conclusion on the facts as reported in the case we need not determine here. In the instant case, the employer knew that Morrison used his own car on this and other occasions, and additionally it was being used not solely to transport the vehicle for his use, but for the transportation of Morrison pursuant to the order of the defendant to return to duty in Miles City.

The case of Khoury v. Edison Elec. I. Co., 265 Mass. 236,164 N.E. 77, 60 A.L.R. 1159, and others following it, are also relied upon by defendant company. The Khoury Case represents the minority view. It has been expressly repudiated in California (Cook v. Sanger, 110 Cal. App. 90, 293 P. 794), and in effect disapproved in Iowa (Heintz v. Iowa Packing Co.,222 Iowa, 517, 268 N.W. 607), and Oregon (Wilson v. Steel Tank Pipe Co., 152 Or. 386, 52 P.2d 1120), and we in effect repudiated that view in the Meinecke Case, supra.

In Curcic v. Nelson Display Co., 19 Cal. App. 2d 46,64 P.2d 1153, 1156, the court said: "Appellants contend that there is a general rule that an employee cannot involve an employer in liability for the negligent operation of an automobile by the former in moving from one place to another at the request of his foreman where the auto is the employee's own, registered in his own name, used for his own personal convenience in going from one place of work to another, the expense of upkeep of the car not being borne by the employer, and the employer not having power of control over the route, speed, or method of operation of the car and paying the employee no compensation for the use of the car, and to support this alleged general rule quotes from 87 A.L.R. 789. That this is not the general rule is set forth in Wesolowski v. John Hancock Mut. Life Ins. Co.,308 Pa. 117, 162 A. 166, 87 A.L.R. 787, where it is set forth that the general rule is that if the activity in which the agent was engaged at the time of the tort complained of was within the scope of his employment, the fact that the automobile used by him and which caused the injury, belonged to the agent, will not preclude the person injured in recovering from the employer, if the agent's use of the vehicle was, either expressly or impliedly, authorized by the employer. This is also the rule inCalifornia. [Citing cases.]"

The court properly submitted to the jury the question of defendant company's liability under the doctrine of respondeatsuperior.

The judgment is affirmed.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ERICKSON concur.