
    Jane Ethel Alcock, formerly Jane Ethel Williams, Appellant, v. Hubert Kearney et al., Appellees.
    No. 44965.
    
      December 12, 1939.
    Rehearing Denied April 5, 1940.
    Kepford, Heath & Kepford and Swisher, Swisher & Cohrt, for appellant.
    Reed & Beers, for appellees.
   Sager, J.

This case has been before us on another occasion. See Williams v. Kearney, 224 Iowa 1006, 278 N. W. 180. Difference in the names of plaintiff is accounted for by the fact that plaintiff has been married since this action was instituted. The outline of facts in that opinion, and the nature of the action as there stated, makes it unnecessary that we do more than to review such evidence as bears on the question before us: Does the record present a jury question, or was the non-consent of the defendant to the use of its truck so conclusively shown as to make it a question of law for the court?

We take from appellee’s argument as an accurate statement of that part of the record it assumes to cover, the following:

“George Davis was an employee of the Melrose Company and had been for several years. The Melrose Company was a company engaged in manufacturing and distributing ice cream and distributing beverages witb some ten or twelve trucks. Davis was a truck driver salesman on a beverage route. He worked six days a week driving bis beverage truck over a fixed route. He did not work Sundays. This accident happened on Sunday. Davis did not deliver ice cream. On this particular Sunday Kearney, who had a barber shop next door to the Mel-rose Company Garage and whom Davis knew, asked Davis if he would help him get his ear, which was broken down on Logan Avenue a mile or so from the Melrose plant.”

The record does not disclose what took Davis (a brother-in-law of Sorenson) to the defendant’s plant on this Sunday; but, having been in its employ for four or five years, it is not surprising that he should have been there in his “off-time”. Davis was employed by Sorenson, vice president and general manager, and from him took orders as to what to do and when. He had a key to the company’s garage but did not have it with him on the day he took the truck. Being solicited by Kearney to help move a stalled automobile, Davis said he would if he could. His testimony continues in effect:

“I got permission to use the truck from E. F. White. He said I could use the truck. I didn’t tell him where I was going. The truck I took was not the one I used on my beer route. I have no written contract of employment, nor written instructions as to what my duties were. White was in charge of defendant’s business when Sorenson was away. It was he who gave me permission to take that truck. My work, as a truck driver salesman, brought me in contact with regular customers, and I took orders only from those upon whom I regularly called. I was the only driver who delivered beer in the city but had nothing to do with the delivery of ice cream.”

White, as a witness for the defendant, testified that he was employed by Sorenson and was in the office all the time looking after supplies and ordering things as needed. He made no initial orders but would make repeats. Sorenson made the original orders and directed generally the business of the defendant. White had nothing to do with trucks except that, if a special order came in and he could not find the driver on the route from which the order came, he would make the delivery himself. White remembered Davis’ call that Sunday morning on November 8tb and Ms request for permission to take tbe truck. White testified:

“I was in tbe office tbat morning, it must have been to get an order. * * * I am quite sure it was to get ice cream. * * * Davis come in tbe back door and be said, ‘I am going across tbe river witb Kearney, I am going to take a truck.' Tbat was as much bis business as mine. I said, ‘Be very careful, it is slippery.’

“Q. He took tbe truck? A. Yes.

‘ ‘ Q. Had you ever given bim permission to take tbe truck before? A. No.

“We did not use company trucks for personal business. I bad never been given authority to permit tbe men to use tbe trucks for their personal affairs. I am tbe bead man in tbe office since December 16th, 1936; Sorenson was on November 8th, 1936, and at tbat time gave all orders. Since then I have given orders on certain things in tbe office such as ordering beer and tbe collection of accounts. Sorenson is away at times. This was true in 1936. He was out of tbe city for extended periods and it was bis custom to go fishing and bunting every year one or more times. When be is away I am in charge to tbe extent of seeing that tbe orders are filled and tbat tbe plant is opened and closed. If anything comes up in tbe conduct of business when'Sorenson was away, I would handle it. When be was not there, I was not entirely in charge. In case there would be some major question come up, I am in constant touch witb bim wherever be is. As to any matter tbat came up, I would either use my judgment or contact Sorenson to find out. Sorenson was not about tbe plant on tbe morning of November 8th. I bad no authority to allow a truck to go out for any other business than an order or something in connection witb tbe business. ’ ’

Sorenson, vice president of tbe company, said in effect tbat be was general manager of tbe company since 1932, having control of the hiring and discharging of men, tbe fixing of wages, setting prices, and was tbe directing and managing officer of tbe defendant. He said tbat White was office manager in charge of tbe office, ordering different materials used, but always under bis supervision. White had nothing to do witb tbe trucks. Of these Sorenson bad exclusive control, and tbe direction of tbe men wbo were to nse them. Sorenson testified that be bad at no time authorized White or anyone else to permit the men to use company trucks for personal use and bad no knowledge of anyone having done so without first having asked him (Soren-son). When he was away, no one in particular was in charge. Everyone had established routes. Sorenson was away every year for some periods of time.

On such a record was the trial court right in directing a verdict for the defendant?

Plaintiff’s petition alleges that the defendant’s truck was “driven by the said George Davis as an employee and in the course of his employment for the Melrose Company and/or Mel-rose Ice Cream Company, defendants herein, and his employer. ’ ’ Defendant’s answer was a general denial. Notwithstanding the issue as thus made up, appellee states the question before us in the following language:

“ * * * the only question involved in this appeal is whether the defendant George Davis did or did not have the consent of the Melrose Company to drive its truck at the time of the accident * * ”

Both parties cite these cases, drawing therefrom opposite conclusions: Landry v. Oversen, 187 Iowa 284, 174 N. W. 255; Lange v. Bedell, 203 Iowa 1194, 212 N. W. 354; Wolfson v. Jewett Lumber Co., 210 Iowa 244, 227 N. W. 608, 230 N. W. 336; Robinson v. Shell Petroleum Co., 217 Iowa 1252, 251 N. W. 613; Hunter v. Irwin, 220 Iowa 693, 263 N. W. 34; Curry v. Bickley, 196 Iowa 827, 195 N. W. 617; and Heavilin v. Wendell, 214 Iowa 844, 241 N. W. 654, 83 A. L. R. 872.

It would serve no useful purpose to analyze these authorities. Each case must be decided upon its own facts in the light of thé principles heretofore announced. Appellee aptly says that our cases on this subject fall generally into three categories: First, the so-called family car cases; second, where no authority was given; and third, those wherein authority was given, but the limits of consent were exceeded.

We are not concerned here with cases of the first class; nor of the third, because,- if consent be found on the record, there was no limit to the use to which it was to be put. Plaintiff’s case is bottomed, as appears from the quotation from his petition noted above, on the charge that defendant’s truck was being driven by Davis “in the course of his employment for the Melrose Company * * * his employer.” As we read the record we fail to find any evidence to support this kind of a case and the fact that appellee assumed or conceded that it was a case under section 5026, 1935 Code, does not alter the nature of the case.

We have heretofore held that a cause of action based on the master and servant relation is entirely different from the cause of action predicated on the Code section just quoted. See Page v. Koss Construction Co., 219 Iowa 1017, 257 N. W. 426. The court was compelled to try the ease as the issues were made up, and plaintiff having failed to show that Davis was in fact acting in the scope of his employment, the court could do nothing but sustain the motion to direct as to the Melrose Company. We have examined not only the eases cited above but others called to our attention by the briefs and we find none which requires a different conclusion.

It follows that the court was right in directing a verdict for the defendant. The case is accordingly affirmed. — Affirmed.

HAMILTON, Hale, Miller, and Bliss, JJ., concur.

Oliver, C. J., and Mitohell and Richards, JJ., dissent.  