CROCKETT v. UNITED STATES; CROCKETT v. McELROY et al., 116 F.2d 646

NORTHCOTT, Circuit Judge. In November, 1939, in the District Court of the United States for the Southern District of West Virginia, George H. McElroy instituted a civil action against Central Motor Sales Company, a corporation, J. C. Crockett, Robert Holt, Frank Ellison and Peter A. Hanna, to recover damages for personal injuries sustained by him on February 20, 1939, when an automobile alleged to have been operated by Frank Ellison and Robert Holt as the agents and representatives of Central Motor Sales Company, a corporation, and J. C. Crockett, collided with an automobile being' operated by McElroy.

Said collision was alleged to have resulted in severe injuries to McElroy and the demolition of the car operated by him. McElroy was an employee of the Federal Bureau of Investigation and the car operated by him was owned by the United States of America. The United States also instituted a civil action against the same defendants to recover damages to said automobile. A car operated- by Peter A. Hanna, following the McElroy car, was also involved in the collision and Hanna was alleged to have been injured. J. C.

Crockett filed an answer in both cases, admitting that on the day of the accident he was trading and doing business as Central Motor Sales Company, but denied that said business was incorporated; and further alleged that he was the owner of the automobile which collided with the car being driven -by McElroy, and that said automobile at the time of said accident was being operated by Frank Ellison, but denied that the said Frank Ellison or Robert Holt, another occupant of said car, were his agents or representatives, or engaged in any business for him at the time of said accident, and disclaimed any liability.

Peter A. Hanna filed a written answer denying any negligence on his part, and alleged that the sole cause of the accident was the joint negligence of McElroy and J. C. Crockett, Robert Holt and Frank Ellison.

The answer further alleged that Hanna suffered personal injuries and property damage in said collision, and set up a counter-claim for said damages against McElroy, Crockett, Holt and Ellison. ' On the day of trial, in January, 1940, Herbert Holt, improperly sued as Robert Holt, filed an answer setting forth that his correct name was Herbert Holt; that at the time of said accident he was riding in the Plymouth sedan owned by Crockett, but that he was not driving said car, and that at the time of said accident he was not acting as the agent or representative of J. C.

Crockett, and was not engaged in any business for J. C. Crockett. It was agreed by and between counsel for McElroy, Hanna, the United States of America, Crockett and Holt that said cases might be consolidated and heard together, and this was done by a proper order. After the introduction of evidence on behalf of McElroy and the United States, Hanna, Crockett and Holt moved for directed verdicts, which motions were denied.

Crockett and .Holt then introduced their evidence and Hanna introduced his evidence and adopted the same testimony given on behalf of McElroy and the United States as to Holt being an agent of Crockett.

Motions for directed verdicts were again overruled and after argument, and the charge of the trial judge, the case was submitted to the jury which returned the following verdicts: A verdict in favor of Hanna on McElroy’s claim against Hanna; a verdict in favor of McElroy on Hanna’s counter-claim against McElroy; a verdict in favor of Hanna on Hanna’s counter-claim against Crockett, Holt and Ellison for the sum of $3,116.50; a verdict in favor of McElroy against Crockett, Holt and Ellison for $2,795.33; and a verdict in favor of the United States of America against Crockett, Holt and Ellison for $575.

Thereupon Crockett and Holt moved to set aside the verdicts and grant them a new trial, and to enter judgment in their favor notwithstanding the verdicts, which motions were overruled and judgment was entered in accordance with the verdicts. From this action J. C. Crockett brought this appeal, and is the sole appellant. The accident occurred about four p. m., approximately one mile east of the corporate limits of the town of Princeton, West Virginia. McElroy, an F. B.

I. agent, operating a car owned by the United States, was driving in a westerly direction toward the town of Princeton and Hanna was also driving in the same direction, closely following the car driven by McElroy. The evidence was to the effect that as McElroy ascended a slight hill he observed a truck approaching from the opposite direction and almost instantaneously a car, following close behind the truck, and travelling at a high rate of speed, attempted to pass the truck and collided with the car being driven by McElroy. The car operated by Hanna crashed into the rear of the McElroy car.

Both McElroy and Hanna were injured and their cars damaged. The appellant, Crockett, does not question the fact that the negligence of Ellison, the driver of the Crockett-owned car, was the proximate cause of the accident. Crockett was at that time engaged in the business of selling new and used cars at Princeton, under the name of Central Motor Sales. Ellison was not an employee of the appellant, Crockett.

Other occupants of the Crockett-owned car, at the time of the accident, were Robert Weikel, who was riding on the front seat next to Ellison, Vergie ICeatley, who was sitting on the front seat next to the right door and Herbert Holt who was lying in the rear seat. All of the occupants of the automobile were intoxicated, and Holt was either asleep or unconscious. Holt had been in Crockett’s service as automobile salesman for approximately one year prior to the accident, and was still in his service at the time of the trial.

Holt did not have regular working days or hours and was not paid a salary but worked on a commission basis. He had the right to use appellant’s automobiles for business purposes but did not have the right to use them for his own personal pleasure and convenience; when he had a prospect for a sale he would talk the matter over with Crockett and get his, Crockett’s, permission to take the car out to demonstrate it; he had authority when demonstrating cars to prospective purchasers to allow them to drive the cars. Prior to the day of the accident, Holt had a prospect for the sale of a car at Hiawatha, West Virginia.

About nine o’clock on the morning of the accident, Holt inquired of Crockett whether he should take the car and go to see the prospect, and Crockett said he thought this would be a good idea. Holt then secured the keys to the car and drove it out of appellant’s garage, intending to go to Hiawatha but did not go there, instead he drove the car down the main street of Princeton and met Frank Ellison, whom he had known for several years. Ellison got in the car and Holt asked him, Ellison, about one of Holt’s prospects, for the purchase of a car, in Monroe County.

They had talked about fifteen or twenty minutes when Robert Weikel came up and joined them. Ellison and Weikel were old friends but Holt had not met Weikel. Ellison testified that Holt tried to interest Weikel in a new De Soto car, but Weikel did not appear to be interested. Weikel then produced a bottle with liquor in it and Ellison, Plolt and Weikel began to drink the liquor. After they consumed the liquor they had, they proceeded to the liquor store in Princeton and Ellison went in and purchased more liquor with money furnished by Weikel.

During the course of the drinking, there was more talk between Plolt and Weikel about Holt selling Weikel a car. They again went to the liquor store to secure another supply of whiskey and Holt testified that this was the last he remembered until he regained consciousness after the accident.

There is contradiction in the evidence as to whether Holt asked Ellison to drive the car after he, Plolt, began to become intoxicated; Ellison testifying that about noon Holt asked him, Ellison, to drive but that he replied that he did not have an operator’s license and that he, Ellison, said let Bob (Weikel) drive, and Bob started driving. Weikel drove the car to a sandwich shop, where beer was sold, located on the Princeton-Beckley highway, where they were joined by a woman, Vergie Keatlcy, who was also intoxicated.

None of the occupants of the car remembered where they went after leaving the sandwich shop until the time of the accident. There is little or no dispute as to the facts, and the proximate cause of the accident was clearly shown to be the negligence of the drunken occupants of the Crockett-owned car. Appellant, Crockett, did not testify at the trial. The sole question involved is whether, under the circumstances, the appellant, Crockett, is liable for the damages caused by the accident. The liability of the appellant depends upon the law of West Virginia. Hudson et al. v.

Moonier, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422. An examination of the West Virginia decisions shows some conflict. In Shahan v. Jones et al., 115 W.Va. 749, 177 S.E. 774, the syllabus (which in that state is the law of the case) reads as follows: “In an action against the owner of an automobile for damages resulting from its negligent operation by another, the issue of whether the driver was, at the time of the injury, the agent of the owner, may be submitted to the jury upon the denial of the driver and owner and substantial countervailing evidence or circumstances.” In Cochran v.

Michaels, 110 W.Va. 127, 157 S.E. 173, 175, there is an able discussion of this question. In the opinion the Court says: “It is apparent that at the time of the accident the driver was not engaged directly in defendant’s, business, in a narrow and restricted sense; but, as we have seen from Mechem, the rule of respondeat superior is not limited by such a restriction. See, also, Cooley on Torts (3d Ed.) § 1027 (*632). It may be conceded that the driver did not even intend to further the master’s business by the course he was pursuing at that time; but his mental attitude alone is not controlling. Riley v.

Oil Company, 231 N.Y. 301, 132 S.E. 97, 22 A.L.R. 1382; 39 C.J., supra, § 1475. The real test is ‘in the relation which the act done bears to the employment.’ Mechem, supra, § 1880. Much of the driver’s information as to prospective purchasers necessarily came through his friends and acquaintances. One purpose of his ‘roving commission’ was evidently to allow him to visit at will among his friends and acquaintances in search of this information. It is reasonable that the defendant had this in mind in giving the driver permission to pick up friends.

A friend picked up became an eager informant as well as a partisan of the driver, and the interest of the defendant was thus promoted. Authority to pick up friends impliedly included permission for the driver to put aside momentarily the direct search for purchasers in order to serve the friends. It is a common trait of servants to usurp authority, in the absence of the master. Knowledge of this trait is chargeable to the defendant, as an employer of labor. Mere abuse of authority by the servant does not sever the relation of master and servant. Labatt, supra, § 2277; 39 C.J., supra, § 1476.

It is not necessary that the defendant should have anticipated the exact circumstances surrounding this accident. It is sufficient if it was probable that the driver would at times exceed his express authority and carry a friend (a greater or less distance) solely as an accommodation to the friend. Me-chem, supra, § 1884. We are of opinion that such

an act of accommodation was a natural consequence of the broad powers conferred on the driver, and that the defendant should have anticipated that at some time some place the driver would do just that thing. If so, the act which occasioned the plaintiff’s injury was within the scope of the driver’s employment, and the defendant is responsible for that act.” The first syllabus in this case is as follows: “Whether

an act by a servant is within the scope of his employment is determined by the relation which the act bears to the employment.” One of the latest decisions of the Supreme Court of Appeals of West Virginia on this question, which we have been able to find, is Miller v. Douglas et al., 5 S.E.2d 799, where' the court held that whether an employee of a garage owner had authority to grant permission for the use of an automobile, so as to render the garage owner liable', was a question of fact for the jury under the evidence. In Tolbert v.

Jackson, 5 Cir., 99 F.2d 513, it was held that when a bailor rents an automobile to a person known by the bailor to be drunken and irresponsible, to be driven on the crowded streets of a city, the bailor is responsible for an injury caused by the negligent driver. This principle applies with greater force to the relationship of principal and agent. The appellant relies chiefly upon the cases of Coates v. Auto Sales Co., 106 W.Va. 380, 145 S.E. 644; Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558; Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368 and Shrimplin v.

Simmons Auto Co., Inc., W.Va., 9 S.E.2d 49. An examination of these cases shows that they are not “on all fours” with the instant case as to the facts. In the Meyn v. Dulaney-Miller case [118 W.Va. 545, 191 S.E. 563], the agent used the owner’s car solely for his own pleasure, in attending a picnic at night, and the court held the owner not liable because the agent was on a “frolic of his own”.

The Jenkins case holds the owner not liable while the employee was operating the automobile on his own business or pleasure; and in the Coates case the owner of the automobile was held not liable because at the time of the accident the servant was off duty and in the Shrimplin case the facts are entirely different from those here. It seems to us clear that the great weight of the West Virginia authority is to the effect that where there is any substantial question as to the liability of .the owner for the negligence of the agent, or anyone acting under the agent, the question is one of fact for the jury.

On the question of the sufficiency of the evidence to take the case to the jury, the federal courts are not bound by the decisions of the state courts. As was said by Judge Parker of this court, . in Gorham v. Mutual Benefit Health & Accident Association, 4 Cir., 114 F.2d 97, 99, decided August 22, 1940: “Furthermore, while according great respect to decisions of state courts in the matter of direction of verdicts, we are of opinion that this is a matter which is governed by federal practice, and not one wherein local law or local decisions are binding.

It goes to the very essence of the exercise of the judicial function by the federal courts, and is in no' sense a matter of local law.” Should we reach the conclusion that the evidence was not substantial enough to support a- verdict against the appellant we would not hesitate to set the judgment aside but, as we shall set out, we are satisfied that there was sufficient • evidence to support the verdict.

We have here a case in which an agent was placed in charge of one of ari owner’s cars, invested' not only with the privilege of demonstrating and selling this car to a certain prospective customer, but also invested with the general privilege and discretion to seek out other prospective customers not only for the particular car in question but for other types of cars that the owner then had in stock or thereafter might acquire.

One of the privileges as well as duties of the salesman was to advertise the owner’s business, to seek out prospective customers to whom either immediate or future sales might be made or sought to be made. In the instant case the salesman called on a friend and acquaintance who had previously furnished him information as to prospective customers and who introduced him to such an one.

This prospective customer was invited into the car along with the salesman and his friend for the specific purpose of promoting the owner’s business, and it is unimportant from a legal viewpoint whether the salesman’s efforts were successful or not. Weikel, the prospective customer, was taken into the car in order to advertise and promote the owner’s business and this business was repeatedly discussed between the parties for sometime.

The testimony as to how frequently the business was mentioned was given by witnesses antagonistic to appellees in this case, as was also the testimony regarding what else occurred between the time that Weikel was invited into the car and the time the accident occurred.

Certain admitted facts, however, stand out in bold outline: The invitation extended to Weikel was within the scope of Holt’s authority; Holt continued from time to Lime, so long as he remained conscious, his efforts as salesman; the beginning of the drinking bout which ultimately resulted in the accident was the indulgence in a practice well known and all too frequent as a means of promoting fellowship and sales; Holt had general authority to invite others to drive Crockett’s cars for the purposes of demonstration and in the way of advertising sales generally; both Ellison and Weikel had been requested by Holt to drive the car involved in the accident and Weikel had driven the car prior to the accident, and while Ellison who was driving the car when the accident occurred had at first declined to do so because of his not having a driver’s license, it is clear that his subsequent change of mind was, or would have been, in harmony with Holt’s wishes and within the privilege previously extended; the evidence shows that whether he lost consciousness, as contended by himself and his companions or not, Holt the effective agent of Crockett remained in the car throitghout the day with the right to direct its movements, and with the right to put it in charge of either Weikel or Ellison, and that it was driven at the time of the accident with his implied authority and consent; during the whole day Holt’s agency demanded of him the custody of the car with its eventual return to the owner, and in the interval the return of his assistant in advertising and his prospective customer to where he originally contacted them.

It was the duty of Crockett in the selection of Holt as his agent to use reasonable care to ascertain his competency to drive a car and the existence of habits which would make it unsafe to place so dangerous an agency in his charge. The owner owed a duty to the public to know something about the character and habits of an employee in whose charge he placed an automobile. A rapid moving and heavy vehicle becomes highly dangerous when negligently operated.

It is evident from the readiness with which Holt engaged in the drunken carousal so early in the morning that he must have been a man of inebriate habits and that Crockett in whose employ he had been for a year or more before the accident either knew or was charged with the duty of knowing this fact, which is further emphasized both by the continued employment of Holt after the accident for approximately a year and up to the time of the trial (whether longer or not we are not advised), and by the further fact that Crockett refused to take the stand, thereby entitling the jury to indulge in all reasonable presumptions against him.

Holt’s agency was not one limited by certain specific instructions, it was an agency coupled with wide discretion, and it is especially true that if Crockett knew, as he should have known, and as the jury had every right to assume that he knew, of Holt’s habits, he is certainly to be charged with a result which might reasonably have been anticipated at the hands of a drunken employee. Under the facts of this case Holt throughout was acting within the scope, or apparent scope, of an agency charging his employer with liability.

Our newspapers are filled with daily accounts of automobile wrecks re-suiting in serious injuries and deaths at the hands of drunken drivers, some as owners and others as employees. Surely the courts are not called upon to encourage or license this deadly menace because forsooth the owner of a motor vehicle may relieve himself of liability in the employment of an agent of inebriate habits of which he has failed to make inquiry; or upon the claim of lack of responsibility .for

an act of such agent. The question arises when and where did Holt’s agency cease? •And when did his duties cease? Were they either discharged or ended by his beginning to drink to excess, or by his “passing out” as the result of such indulgence, thereupon rendering his possession of the car committed to him by the owner more dangerous? It would be a queer doctrine to assert that by rendering himself more effective in doing damage to an innocent public an agent may discharge his duty to the rpaster, and relieve the master of liability at the very point of becoming most dangerous.

The accident occurred during the usual working hours of the day, while Holt was still in possession of the car and sometime before the hour at which cars turned over to selling agents are customarily expected to be returned to the master’s place of business.

In the decided cases there is a clear line of distinction between those in which the agent goes on an independent carousal or enterprise of his own during business hours in which his possession is lawful, and in other cases in which the car is used for a pleasure trip entirely unconnected with the master’s business . from beginning to end, and those in which after the master’s business has been completed and the agency terminated, the employee uses the car for his own pleasure.

The question of agency is one of fact and the conflict, or apparent conflict, of decisions by the courts of last resort may generally be traced to an effort to accord ■ proper weight to the controlling facts of each case. We are in accord with the view that stricter legislation governing cases of this type might well be enacted. We are satisfied, however, that the general principles of law now prevailing are sufficient to support our view of the instant case. Certainly we are not disposed to extend the protection of the law to offenders in cases of this sort beyond what past authoritative decisions require.

The charge of the trial judge, to which there was no objection, was more than fair to the appellant, and he repeatedly instructed the jury to the effect that they must believe from the evidence that at the time of the accident the car was being operated on the business of the appellant, or had some proper connection with appellant’s business, before they could find a verdict against the appellant.

We have repeatedly held that courts are loath to invade the province of the jury when, as in the instant case, there is substantial evidence to support the finding of the jury on a question of fact, we can only affirm that finding and the judgment based thereon. There was no error in the trial harmful to the appellant, and there was substantial evidence to sustain the verdict of the jury. Affirmed.