Poundstone v. Whitney

STEINERT, C.J., TOLMAN, and BEALS, JJ., dissent. This case presents four separate actions for damages resulting from an automobile collision. The four actions were consolidated for trial and are so treated upon the appeal. Prior to the time of trial, defendant Claude Lynch defaulted. Thereafter, the court, trying the case without a jury, made findings and conclusions, based upon which judgments were rendered for the respective plaintiffs against all the defendants. Later, the judgments were vacated as to the defendant Willard Westmoreland. The defendants Whitney and wife, only, have appealed from each of the judgments so entered.

The crucial question in the case is whether Lynch, who was the driver of the offending car, was, on the occasion of the accident out of which the injuries arose, acting within the scope of his employment.

The facts of the case, as evidenced by the testimony, are as follows: For some years prior to July 4, 1934, appellant V.I. Whitney maintained a place of business in Montesano for the sale of new and secondhand automobiles, principally Pontiacs and Chevrolets. In connection with that business, Whitney also conducted a parts and service department, including a paint shop, repair shop and washrack. In the combined business, he employed a number of salesmen, office assistants, mechanics and ordinary laborers. Among the salesmen were C.L. Knight and Russell Walker, who worked on a commission basis. Defendant Willard Westmoreland was employed as a shop mechanic and worked on a time basis. Defendant Claude Lynch, who had been employed in the business for about a month prior to the accident, was a car washer and helper and, as such, was paid by the hour.

The organization, with Whitney as its directing head, appears to have been complete in every detail. The employees were directed to be on the lookout for prospective buyers and to report any customer leads and information concerning them to the head of the business or to the salesmen. Whenever a prospect was thus reported, the matter was turned over to Whitney or to one of the salesmen, who were the only persons that had authority to make sales.

On July 4, 1934, the Elma Post of the American Legion was sponsoring a celebration at the county fairgrounds, situated about a mile and a half east of the business section of Elma. A few days before that occasion, the committee in charge had asked Knight, one of appellants' salesmen, to furnish several automobiles for the parade which was to take place at the fairgrounds at two o'clock in the afternoon of the fourth. Knight, thinking that it would be a good thing from an advertising standpoint to have the cars in the parade, took the matter up with Whitney. At first, Whitney was not very enthusiastic about the proposal, because he did not think that the display of the automobiles would be of any sales value. However, he finally acceded to the request, provided that there should be no expense to him. He himself did not attend the celebration, but agreed that Knight should have full responsibility and, likewise, full authority in the matter.

With this understanding, arrangements were made by Knight to provide three cars for the parade; two Pontiacs and one Chevrolet. Lynch and Westmoreland were to drive two of the cars, and another driver was to be selected for the third.

On the morning of the fourth, Knight met Lynch and Westmoreland at the garage where the cars were stored. A driver for the third car not then being readily available, Lynch suggested that his wife would be glad to drive it. Knight acceded to this, saying that "he would just as soon they would be all women drivers in the parade."

The three drivers having thus been designated, Knight's instructions to them were that they should drive the cars slowly from Montesano to the fairgrounds, where he would meet them and arrange for participation in the parade; and that, after the parade, the same drivers should take the cars back to the garage in Montesano.

At about ten o'clock in the morning, Mr. and Mrs. Lynch and Westmoreland started with the cars, driving first to Lynch's home, where breakfast was served. At Elma, the entire party stopped at a general merchandise store conducted by J.J. Ladley, a brother-in-law of Lynch. Mrs. Ladley was present at the store and served a lunch to Mr. and Mrs. Lynch. During the stay at the store, Lynch discussed with Mr. Ladley the merits of the Pontiac car. Mr. Ladley was interested in the purchase of a new car, but Mrs. Ladley was not, although she was an experienced driver.

At the suggestion of Mr. Ladley, Lynch endeavored to interest Mrs. Ladley in a Pontiac car and invited her to go with the party to the fairgrounds and either ride or drive in the parade. Mrs. Ladley could not leave the store at the time, but stated that, if Lynch would return for her at one o'clock, she would go with him and ride in the parade.

The three drivers then proceeded with the cars to the fairgrounds. Knight failed to meet them, as he had agreed, on their arrival. It appears that he had gone to the fairgrounds earlier in the forenoon and, while waiting for the cars, was attending a ball game which was in progress, as a part of the celebration, on a distant part of the grounds. The three drivers parked their cars some little distance inside the entrance to the fairgrounds, and the two men drivers then proceeded to dust them off and get them ready for the parade. After completing these preliminaries, Lynch endeavored to find Knight in the fairgrounds, but was unable to locate him.

Mrs. Lynch reminded her husband of his engagement with Mrs. Ladley. Thereupon, Lynch, with Westmoreland accompanying him, took one of the Pontiac cars to go to Elma, a distance of about one and one-half miles. At the entrance gate, Lynch saw Russell Walker, one of appellants' salesmen, who was serving as a committeeman in the celebration. Lynch told Walker that he was going to get Mrs. Ladley and at the same time asked Walker to keep an eye on the other two cars. Walker said that he would. Up to this time, Lynch and Knight had not contacted each other.

On the way to Elma, and at a point nearly a mile from the fairgrounds, the car driven by Lynch collided with an automobile driven by Earl J. Poundstone, who at the time was accompanied by his minor daughter, Beverly Jane Poundstone, and Edward F. Murphie and his minor daughter, Wanda Leigh Murphie. As a result of the collision, Mr. Poundstone and his daughter were killed, and Mr. Murphie and his daughter were injured. The Poundstone car was demolished. It was for these injuries and damages that the four actions were brought.

Prior to the trial, the parties to this appeal entered into a stipulation wherein these appellants admitted that they were the owners of the car driven by Lynch, and that Lynch, at the time of the collision and immediately before, was driving at an excessive rate of speed and on the wrong side of the road; but appellants did not admit liability for the negligence of Lynch. No question is raised herein as to the amounts of the judgments, the only question being, as already stated, whether Lynch was, at the time of the collision, acting in the course of his employment.

For the purpose of this decision, it will be assumed, without so deciding, that the presumption of liability arising by reason of the fact of the appellants' ownership of the car at the time the accident happened was overcome by the testimony in the case, and, as a result, the presumption is no longer a matter for consideration. This, however, does not dispose of the appeal.

[1] There is another question to be considered in determining whether Lynch, at the time the accident occurred, was within the scope of his employment on that particular day. The rules by which courts are guided in determining whether an employer is liable for the result of the employee's negligence are well understood. The difficulty comes in applying these rules to a particular state of facts.

Whether an employee, at the time the act was done for which the employer was sought to be held liable, was within the scope of his employment, depends upon whether the act had been expressly or impliedly authorized by the employer. In addition to this, the employer is liable if the act complained of was incidental to the acts expressly or impliedly authorized or indirectly contributed to the furtherance of the business of the employer. McQueen v. People's Store Co., 97 Wash. 387,166 P. 626; De Leon v. Doyhof Fish Products Co., 104 Wash. 337,176 P. 355; Restatement of the Law of Agency, American Law Institute, A, p. 510; 3 Cooley on Torts (4th ed.), p. 68.

In the case now before us, Lynch and two others were to drive the automobiles to the fairgrounds in accordance with the plan worked out by Knight, the salesman. Lynch drove one of the cars, and it was his duty to report to the salesman or to his employer prospective customers. On the way to the fairgrounds, he discovered such a customer, but Mrs. Ladley, not being able to accompany him at the time, arranged for him to return for her later in the day. It was on this return trip that the accident happened.

The purpose of taking the automobiles to the fairgrounds was for exhibition, demonstration and sale. In returning for Mrs. Ladley, Lynch was doing an act which was merely incidental to the acts he was authorized to perform and which would indirectly contribute to the furtherance of the business. On this day, he was not acting as a car washer.

[2] The fact that Lynch was performing an unauthorized act does not defeat a recovery.

In Loux v. Harris, 226 Mich. 315, 197 N.W. 494, it is said:

"Selling gasoline was a part of defendant's business and, therefore, within the scope of Wagner's employment. Wagner violated instructions in taking the gasoline to the stranded renter of one of defendant's cars. In doing this was he about the business of defendant or was his act a severance in and of itself of his relation to his master's business? Was he driving on his master's business? Certainly he was not driving on his own affairs. Disobedience of how to handle business placed in his charge did not relieve the master. The liability of defendant depends upon whether Wagner, in taking gasoline to the renter of one of defendant's cars, was acting within the scope of his employment. . . .

"Wagner was authorized to sell gasoline at the garage. He made a sale of what he was employed to sell but delivered the article in disobedience of instructions given him by his master, and employed defendant's vehicle in doing so, contrary to the master's instructions. He was, therefore, about his master's business but acting in a forbidden way. Wagner's disobedience in not notifying the defendant and in leaving the garage and using the automobile did not place him outside of the scope of his employment."

In Smith v. Yellow Cab Co., 173 Wis. 33, 180 N.W. 125, it is said:

"If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master the doctrine of respondeat superior would have but scant application, for the master could always instruct his servant to use ordinary care under all circumstances. The servant's negligence would therefore always be contrary to orders and the non-liability of the master would follow. But such is not the law. The servant is within the scope of his employment when he is engaged in the master's service and furthering the master's business though the particular act is contrary to instructions. The purpose of the service rendered by the employee, and not the method of performance, is the test of whether or not the servant is within the scope of his employment. If the purpose is to further the master's business and not that of the servant, the latter is within the scope of his employment though he be negligent or disobeys orders as to the method of its execution. [Citing authorities.]"

In Luckett v. Reighard, 248 Pa. 24, 93 A. 773, Ann. Cas. 1916A, 662, it is said:

"The test of liability is whether the servant at the time of the plaintiff's injury was acting within the scope of his authority in furtherance of his master's business. The master, however, may not be relieved of liability for the tortious act of his servant when acting for him in furthering his business, although he is acting contrary to instructions and the act was done by the servant at a place to which the performance of his duty did not necessarily call him. The master is responsible for the negligent acts or omissions of his servants in the course of their employment, though unauthorized or even forbidden by him, and although outside of their ``line of duty,' and without regard to their motives: 1 Shear. and Red. on Negligence (6th ed.), Sec. 146; Moon v. Matthews, 227 Pa. 488;Marcus v. Gimbel Bros., 231 Pa. 200; Penas v. Chicago,Milwaukee St. Paul Ry. Co., (Minn) 30 L.R.A. (N.S.) 627."

The judgment will be affirmed.

HOLCOMB, MILLARD, BLAKE, and GERAGHTY, JJ., concur.