Bobby Breeding and Hugh Breeding, Inc. v. Ben Massey and Mrs. Ben Massey

378 F.2d 171
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 29, 1967
Docket18475_1
StatusPublished
Cited by47 cases

This text of 378 F.2d 171 (Bobby Breeding and Hugh Breeding, Inc. v. Ben Massey and Mrs. Ben Massey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobby Breeding and Hugh Breeding, Inc. v. Ben Massey and Mrs. Ben Massey, 378 F.2d 171 (8th Cir. 1967).

Opinions

VAN OOSTERHOUT, Circuit Judge.

This action by Ben Massey and Mrs. Ben Massey is for the recovery of damages sustained arising as a result of a collision occurring about 10:45 p. m. on May 17, 1963, on Highway 67 at its intersection with State Highway 36, near Searcy, Arkansas, between a tractor-trailer unit operated by Ben Massey traveling south on Highway 67 and a tractor owned by the defendant Hugh Breeding, Inc., and operated by the defendant Bobby Breeding which was proceeding in a northerly direction and was turning left off Highway 67 onto Highway 36.

Liability of the driver Bobby Breeding is predicated upon his negligent operation of the tractor and liability of Hugh Breeding, Inc., is based upon such negligent operation within the scope of employment and upon the additional basis of negligent entrustment of the vehicle to an incompetent driver. Punitive damages are claimed only on the negligent entrustment claim and only as against Hugh Breeding, Inc.

It is .undisputed that Ben Massey suffered severe personal injuries as a result of the collision. No claim is made upon this appeal that the damages awarded are excessive and evidence as to extent and nature of the injuries does not appear in the record. Mrs. Massey’s claim is based on loss of consortium.

This action was commenced in the state court and removed to the federal court. Jurisdiction, based upon diversity of citizenship and the requisite amount is established.

The case was tried to a jury and submitted upon interrogatories which, together with the jury’s answers thereto, read:

“1. Do you find from a preponderance of the evidence that defendant Bobby Breeding was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?
Answer: Yes.
(Yes or No)
“2. Do you find from a preponderance of the evidence that plaintiff Ben [174]*174Massey was guilty of negligence in one or more of the particulars alleged and that such negligence on his part was a proximate cause of the collision?
Answer: No.
(Yes or No)
“3. (This interrogatory related to the percentage of negligence of the respective parties and was to be answered only if plaintiffs were guilty of contributory negligence. The interrogatory was not answered.)
“4. Do you find from a preponderance of the evidence that Bobby Breeding was acting in the course and scope of his employment by Hugh Breeding, Inc., at the time of the collision?
Answer: Yes.
(Yes or No)
“5. Do you find from a preponderance of the evidence that Hugh Breeding, Inc., had negligently entrusted the vehicle involved to Bobby Breeding at the time of the collision and that such negligent entrustment was a proximate cause of the collision?
Answer: Yes.
(Yes or No)
“6. What do you find from a preponderance of the evidence to be the actual or compensatory damages suffered as a proximate result of the collision by the respective plaintiffs?
Answer: Ben Massey . . $115,000 Mrs. Ben Massey $ 25,000
“7. Do you find from a preponderance of the evidence that Hugh Breeding, Inc. was guilty of wilful and wanton misconduct in entrusting the vehicle involved to Bobby Breeding ?
Answer: Yes.
(Yes or No)
“8. If your answer to Interrogatory No. 7 was ‘Yes’, do you award punitive damages to the plaintiffs against defendant Hugh Breeding, Inc.?
Answer: Yes.
(Yes or No)
If your ahswer is ‘Yes’, in what amount?
Answer:
Ben Massey.....$25,000.00
Mrs. Ben Massey . . $10,000.00”

The answer to each interrogatory was signed by the jury foreman.

Pursuant to the interrogatory answers, judgment was ehtered against both defendants for actiial damages in favor of Ben Massey for $115,000 and Mrs. Ben Massey for $25,000, and in addition punitive damages weré awarded against Hugh Breeding, Inc., in favor of Ben Massey for $25,000 and Mrs. Ben Massey for $10,000. Motions for judgment n. o. v. and new trial weie made and overruled. This timely appeal followed.

The points relied upon for a reversal are thus stated by appellants (appellants will in this opinión usually be referred to as defendants):

“I. The motión of Hugh Breeding, Inc., for a directed verdict should have been granted.
“II. The jury should have been instructed as a matter of law that Bobby Breeding was not in the course and scope of his employment by Hugh Breeding, Inc., at the time of the occurrence complained of.
“III. The Couirt should have instructed the jury ás a matter of law that Hugh Breeding, Inc., did not negligently entrust the vehicle to Bobby Breeding at the time of the occurrence complained of.
“IV. The Court etred in submitting to the jury the issue of punitive damages and in permitting testimony as to the net worth of Hugh Breeding, Inc.
“V. The Court erred in permitting the introduction of testimony concerning arrests, convictions and pleas of guilty of Bobby Breeding on occasions prior to May 17, 1963.”

Hugh Breeding, Inc., made timely motions for directed verdict, for judgment n. o. v. and to withdraw issues II and III hereinabove stated from the jury, and the defendants have preserved for [175]*175review the errors hereinabove stated upon which they rely for reversal.

Before reaching the legal issues, we will summarize the material facts. Bobby Breeding is the grandson of Hugh Breeding, president and principal shareholder of the Company, and the nephew of Cecil and Lyle Breeding, vice-presidents of the Company. When first hired by the Company, at age eighteen, in 1949 or 1950, he worked during summer vacations greasing and washing, and changing tires. He subsequently spent eight years in the Army and Navy. On July 20, 1960, after his discharge, he was rehired by the Company. Initially, he worked part-time after school on jobs similar to those he had done during summer vacations in 1949-1950; however, after about four months, he quit school and asked to drive a truck for the Company. He was hired by the Company as a driver after he had undergone a month’s training as a student driver, during which he made several .trips with experienced drivers without pay.

The Company never required Bobby Breeding to submit the personal history form usually required of driver applicants. He continued as a Company driver until the accident, May 17, 1963. He had no accidents or arrests while driving Company vehicles during this period.

Bobby Breeding was in three accidents with his own automobile which involved drinking and driving between 1955 and the date of his reemployment.

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Bluebook (online)
378 F.2d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobby-breeding-and-hugh-breeding-inc-v-ben-massey-and-mrs-ben-massey-ca8-1967.