HAROLD BEHRENS v. HAWKEYE OIL COMPANY

Minnesota Supreme Court1922-03-31No. No. 22,670

151 Minn. 478

Summary · law.co

Holding. The trial court's judgment was affirmed. The evidence was sufficient to permit a jury to infer the truck driver was in the course of employment despite his statement about going home to dinner, and the question of the plaintiff's contributory negligence was properly a jury question.

A motorcyclist was injured in a collision with a truck owned by an oil and gasoline distribution company. The truck's driver, an employee, negligently crowded toward the left curb while making a left turn onto an intersecting street, striking the plaintiff. The defendant challenged whether the driver was acting within the scope of employment at the time of the accident.

The court found sufficient evidence from which a jury could infer the driver was in the course of employment. The truck bore the company's name, was regularly used in the defendant's business, was driven by the company's customary driver, was loaded with gasoline as it typically was during business operations, and was on a highway where such deliveries customarily occurred. The driver's testimony that he was going home to dinner did not conclusively establish he was using the heavily loaded truck for purely personal purposes, making it implausible that he would use a four-ton vehicle as a private vehicle.

The defendant also raised a contributory negligence defense, claiming the motorcyclist should have avoided the collision. The court determined this was a factual question properly submitted to the jury, and the plaintiff's testimony established he had no opportunity to dodge the truck once the driver suddenly crowded him toward the curb.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a truck driver was in the scope of employment based on the vehicle's regular use, loading, and the driver's usual duties
Whether an employee's statement about personal travel necessarily negates work-related duties when using a company vehicle
Whether contributory negligence was properly submitted to the jury as a factual question

Procedural posture

The defendant appealed from a jury verdict in favor of the plaintiff in a negligence action arising from a motor vehicle collision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hallam, J.

Plaintiff, while riding a motor cycle on a street in Rochester, came into collision with defendant’s track and was injured. He sued for damages and recovered a verdict. Defendant appeals.

Defendant’s truck was driven by an employe, William Klinkel. He desired to turn on an intersecting street to the left, and, in doing so, crowded close to the left curb. Plaintiff was passing on the- left and was injured by the act of the truck driver crowding to the left of the street. The negligence of the truck driver in crowding to the left side of the street is unquestioned.

Defendant contends that the evidence conclusively shows that the truck driver was not in the course of defendant’s employment at the time the accident happened. Defendant was in the business of selling and distributing oil and gasolene. The truck was a transport ton and one-half truck carrying a 400-gallon gasolene tank. On the truck was the name of defendant and it was used in defendant’s business. Klinkel was the regular driver of the truck and drove it about distributing gasolene. At the time of the accident the truck was loaded and Klinkel was driving it. These facts clearly warrant an inference that Klinkel was in fact in the course of his employment. Where a defendant owns and customarily uses a truck in his business and the customary driver is found driving the truck on highways where it is customarily driven, loaded as it is customarily loaded in defendant’s business, an inference is permissible that the driver is in the course of his employment. On more meagre facts this court held the evidence sufficient in Fransen v. Kellogg Toasted Corn Flake Co. 150 Minn. 54, 184 N. W. 364.

The only evidence tending to rebut this inference was that the driver testified that he was at the time “going home to dinner.” There are numerous cases dealing with the liability off a vehicle owner where an employe is using, the vehicle to drive to and from meals. We need not analyze or discuss them at length. It is sufficient to say that the mere statement of the driver that he was going home to dinner did not necessarily mean that he was using this heavilv-loaded truck for his own private purposes. Possibly he was, but it would seem improbable that he would use a truck loaded to near four ton as a mere runabout. Save as above stated the facts and circumstances are not in evidence. We must determine the case on the evidence given and wehold that the evidence is not conclusive against the plaintiff.

Defendant on argument complained that the court did not submit to the jury the question whether the driver was acting in the course of his employment at the time of the accident. No exception was taken to the charge in the trial court. Objections to the charge raised for the first time on argument before this court clearly come too late.

Defendant contends that plaintiff was guilty of contributory negligence. Plaintiff testified that when he ran alongside of the truck it was about in the center of the street; that when he was beside the truck the driver without warning crowded him right up to the curb; that after the truck driver started to turn plaintiff tried to dodge him and get out of the why, but had no opportunity to do so. Clearly the question of contributory negligence was one of fact for the jury

Order affirmed.