Travelers Ins. Co. v. Freeman Co. , 104 Ohio App. 226 ( 1957 )

These cases are in this court on appeals from judgments rendered by the Cincinnati Municipal Court in favor of appellees and against the appellant Louis G. Freeman Company.

On July 13, 1954, at about 7:45 a. m., Roger Boyd, an employee of the Freeman company, was returning one of the company's cars to its place of business, and, as a result of the admitted negligence of Boyd, the automobile ran into a building at 12th Street and Central Avenue in Cincinnati, Ohio, causing certain damage.

The appellee Travelers Fire Insurance Company paid to the owner of the building $627.30 for his damage, and the appellee Buckeye Union Casualty Company paid $194.96 on the plate-glass insurance, all because of the negligence of Boyd. The insurance companies, under their separate policies, then accepted subrogation of these claims and instituted the present actions against the Freeman company. By agreement the cases were tried together.

The sole question for determination by the court is whether, under the facts in these cases, there was sufficient evidence to warrant the court in finding that Boyd was the agent of the Freeman company, and that at the time of the accident he was acting within the scope of the authority conferred upon him by such company.

As to the following evidence there is no dispute.

Freeman company used four automobiles in the transaction of its Cincinnati business. It had established a custom of having its employees take its cars home with them rather than store them in garages. It had no storage room at the plant situated on Hulbert Street in the west end of Cincinnati, and the cars otherwise would be parked on the street overnight in an admittedly undesirable location in front of Freeman company's office. This is exactly the fact with reference to the car involved in the accident which was under the care of the employee, Boyd. Freeman company furnished the gasoline for all its cars, including the one being used by Boyd. This arrangement for the care of the automobiles, including the one involved in the accident, was, by express direction and custom, established by such company, all for its benefit. The company saved the expense of providing garage and storage space for its cars, that responsibility being given to each employee who took charge of a car for the night.

Let us look at the record. Louis Freeman, vice-president and treasurer of Freeman company, was called by the plaintiffs to establish agency. His testimony was as follows:

"Q. Was it your ordinary usage for some one of your employees to take that particular car home every evening? A. Ordinarily, yes.

"Q. What was the reason for that, Mr. Freeman? A. Well, wa have quite a few company cars and rather than store them in garages, why, they take them home at night. One drives the car.

"Q. And he then stores the car for the night; is that correct? A. That's right; if he has storage room.

"Q. Now, do you have storage room at your company for all of your company automobiles? A. No, we don't.

"* * *

"Q. Had he ever taken the car home before? A. I think he had taken it home the day before, Monday, I recall * * *.

"* * *

"Q. What facilities do you have at your company for the storage of these company cars? A. Well, when we leave them at the office they usually park them on the street overnight.

"Q. There is no inside parking facility for these cars? A. No.

"Q. There is no lot for these cars; is that right? A. There is no what?

"Q. There is no lot? A. No.

"Q. Well, if Mr. Boyd had not taken the car home where would it have been parked over the night of July 12th and 13th, 1954? A. Probably on Hulbert Street, right next to the building.

"* * *

"Q. Who put the gasoline in the car? A. The company."

Applying this evidence to the definition of an agent, what do we have, an agency or a bailment as determined by the majority?

As I understand the legal meaning of the word, agent, it is a person who is acting within the scope of his authority in the business entrusted to him by his principal. Under this definition, let us examine the facts in this case.

Boyd was to take the car home, take care of it for the night by leaving it in his garage, on his driveway, on the public highway, or in a public garage, and then bring it back to his employer's place of business in the morning. Boyd was permitted the use of the automobile for his own purpose during the night after he had taken the car home. If the accident had happened while he was engaged in a frolic of his own, I would unhesitatingly agree with the majority. However, he had other instructions from his employer in addition to the permission to use the machine for his own purposes. The use of the car by the employee for his own purposes was incidental. The primary function of the employee was taking care of the car for the employer and bringing it back in the morning. We must look to these instructions to determine the extent of his authority. The employer had no garage within which to store the four automobiles which it used in its business; the cars would have to be stored in a public garage, left out for the night on the public highway in an admittedly undesirable neighborhood, or each car could be left in the custody of an employee, usually the employee who used the car in the daytime on the employer's business. It was a benefit to the employer to have the employee take charge of the car and safely keep it during the night. This practice, according to the undisputed evidence, was a well established custom of the employer. To execute this function, the employee had to take the machine home, and he had to bring it back in the morning. As previously stated, we are not concerned with what happened during the night. In the morning, pursuant to the express instructions, in carrying out the business entrusted to him by his employer, the employee was bringing the automobile in question back to the employer's plant to be used in its business, when the accident happened. Why is this not substantial evidence of the relation of master and servant? There is no dispute about this evidence. The trial court, which was the trier of the facts, could well have concluded that, at the time of the accident, the driver of the automobile was acting within the scope of his employer's business. The majority substitutes its judgment for that of the trier of the facts. The law is undisputed that, where there is substantial evidence to warrant the judgment, the appellate court has no choice except to sustian the judgment.

Suppose we view these cases upon the theory of the apparent authority of the agent.

In 2 Ohio Jurisprudence (2d), 99, Agency, Section 58, it is stated:

"In determining the apparent authority of an agent it is the conduct of the principal, rather than that of the agent, that is to be considered. The principal is only liable for that appearance of authority caused by himself. Apparent authority on the part of an agent cannot be established solely by the acts and conduct of the agent, but must be traced to some act or conduct of the principal."

Even on the theory of apparent authority, it is my judgment that these cases were properly decided by the Common Pleas Court.

Again, what are the facts in relation to this doctrine of apparent authority? Here is a company engaged in a substantial business, using four automobiles in the prosecution of that business. It not only permits but gives express authority to its employees to undertake custody and take care of its automobiles by taking them home and bringing them back to the plant in the morning. Is this not apparent authority under the established custom and conduct of the master?

As decided by this court in the case of E. S. Gahagen Co. v.Smith, 48 Ohio App. 290, 194 N.E. 26, "in an action for damages for personal injuries received when plaintiff was struck by an automobile owned by defendant automobile sales agency and driven by one of its employees, it is not error to refuse to direct a verdict for defendant when the evidence shows that the driver of the automobile was employed by defendant as a salesman on a commission basis, and was allowed to drive a car belonging to defendant to and from his home for lunch, and the injury occurred on return trip to the salesroom to secure a demonstrator car to immediately go to a customer."

That case is almost on all fours with the cases at bar. Here, Boyd, an employee, was permitted to take the automobile home with him, with special instructions to look after the car for the night and bring it back in the morning. On the way back in the morning to put the car in service, he had the accident. Boyd was performing the duty enjoined upon him by the master.

Judge Ross, in his opinion in the Gahagen case, supra, said:

"Where an employee under instructions from the master had taken fellow employees to their homes after work, liability was sustained against the employer for injuries negligently inflicted by the employee while on his way home with the vehicle after the performance of such duty." He cited, as authority for this pronouncement, Silent Automatic Sales Corp. v. Stayton,45 F.2d 471.

In my opinion, there is substantial evidence in the cases at bar indicating that, at the time of the accident in question, the driver Boyd was acting upon instructions of his master and within the scope of his employment.

For the above reasons, it is my opinion that the judgments of the trial court should be affirmed.