Wells v. Hecht Bros. Co.

Adkiks, J., delivered the opinion of the Court. Gertrude Wells, appellant, while riding as a passenger with one Caleb Griffin in bis automobile, was injured by tbe alleged negligence of William E. Miller, an employee of Heobt Bros. & Company, appellee, who' was driving a truck belonging to appellee. Sbe sued appellee and there was a directed verdict in favor of tbe defendant, on wbicb judgment was entered. This appeal is from that judgment.

This appeal is not concerned with tbe particulars of the accident or the extent of the injury, tbe only exception being to tbe granting of defendant’s prayer withdrawing the case ⁶²⁰ from the jury, and the only question involved being whether Miller, the driver of the truck, was acting as the agent of the defendant at the time when the accident occurred. On the night of the accident Miller, with other employees of the radio department of the defendant, attended a farewell party given by William H. Heepier, one of the employees of said department, to Powell, the manager of the department, who was about to sever his connection with defendant. Hone of the officials were invited or knew anything about the party until after the accident. Miller testified that on the morning of the day of the party Mr. Powell and a few others were talking about going out there that night, and witness said he did not know how he would get out there, and Powell said, “Take the truck.” Witness was in the habit of using the truck when he was out installing or repairing radio sets and would some times keep it at his home over night.

The last work he did that day was in Hamilton. “He went home to Lansdowne and washed, dressed and cleaned up-, and came in on Park Avenue and met Mr. Happholdt, with whom he had made arrangements, before he left that morning, that he was to meet him there, as he knew Mr. Happholdt intended going to Mr. Heepier’s. That he met him about 8.80, having gone there in the Chevrolet truck 'belonging to Hecht’s. He got into the truck and he went to Mr. Heepier’s home at Oatonsville. Here they stayed until 12 o’clock.

Then Mr. Torchin, Happholdt and himself got into the truck and took Torchin home”; that he was then proceeding to take Happholdt home when the accident at Fayette and Monroe Streets happened. Witness further testified that he was not on business for Hecht’s, and denied that he had told Police Officer Johnson that he was, hut admitted that he had talked with him after the accident and told him it was Hecht’s truck. This witness and three other employees who attended the party, Torchin, Happholdt, and Heepier, all testified that it was a friendly gathering of the employees of the department as a farewell to Powell, and no officers of defendant were there or had anything to do with the party, and that no work was done or ⁶²¹ business transacted for defendant. Powell did not testify.

It appears, however, from the testimony of several witnesses that his whereabouts was unknown to defendant at the time of the trial. Hugent, the general manager of defendant, testified that he reprimanded both Powell and Miller when he learned after the accident that Powell and Miller had permitted Miller to use the truck for other than business purposes. Much is attempted to be made by appellant out of the following testimony of Toreliin: That he was invited, to the party by Heepier, one of the service men; Powell had resigned and was to leave the store for out of town within the next two weeks and therefore Heepier had this party in his honor. Heepier was not in any position of authority.

Witness was told that the affair to be held there was to be a social gathering of the radio department and everybody connected with the radio department, even the stenographer, was asked to be there. Q. Was anything discussed therein, any matter of business discussed at all? A. In a certain way, yes. Q. What was discussed in the nature of business ?

A. How business is going on now, and what kinds of sets we are selling and what kind we ought to sell, and so forth and so on, and what other concerns are doing. Q. Miller was right there when that discussion took place? A. Yes. Q. You say there was a discussion as to the radio business and what kind of service you had been giving and what you expected to give ?

A. Yes. Q. How long did this discussion of service at Ilecht’s and so forth, how long did that continue ? A. I did not say exactly we discussed the service at Hecht Brothers. Q. What did you mean.

A. I am talking about radio business in general, not only at Hecht Bros., but in general, and it had nothing to do with business, it was the same as people talk over at parties, eating and so forth and so on. Q. There was no discussion about the kind of service you fellows had been giving? A. Hot exactly, no. Q. Did you talk about the betterment of the service?

A. Hot