HEALY, Circuit Judge.
This appeal is from a judgment awarding damages for the wrongful death of one Avenell Newby, who was the wife of appellee George H. Newby and the mother of the two minor children of the couple.
The death of Mrs. Newby followed injuries received when a small panel truck, in which she was riding as a gratuitous passenger, overturned on ihe highway between Soda Springs and Montpelier, Idaho. The truck was driven by Rulon D. Hair, a traveling salesman in the employ of appellant Reynolds Tobacco Company. Hair was a party defendant below but he did not appeal from the judgment. Appellant Donnelly was district supervisor for the Tobacco Company and Hair’s immediate superior.
The amended complaint in the suit alleged that at the time of the accident the truck was being driven by Hair in the pursuit of his employment. It alleged, in the alternative, that Hair was permitted to operate the truck on the public highways, notwithstanding it was known to the Company and to Donnelly that he “was a careless, reckless and incompetent driver of an automobile and was in the habit of hauling guests contrary to instructions.” To bring the situation within the terms of the local guest statute the death of Mrs. Newby was alleged to be the result of Hair’s recklessness in driving. These allegations were denied by the answer. Around the evidence concerning them revolves the controversy which has brought the case to this court.
We have concluded that the judgment must be reversed because of error in the reception of proof concerning Hair’s previous record as a driver and because of the submission of that issue to the jury. We state, preliminarily, our views on the remaining seriously controversial matters for the guidance of court and counsel in the event another trial is had. What follows is, of course, predicated on the assumption that the showing on a second trial will not differ materially from that made on the first.
1. There was evidence to warrant a finding that at the time of the upset Hair was acting in the course of his employment. The motor car involved admittedly belonged to the Tobacco Company. It was loaded with Company merchandise intended for sale or distribution by the driver. The accident happened during business hours in a locality in which Hair customarily worked as a salesman. In two written reports of the incident made to his employer Hair stated that he was on Company business at the time. At the trial his testimony was to the contrary. He then described the journey as being purely a jaunt of his own in which Mrs. Newby was a participant. But in light of the contradictory statements mentioned the question was for the jury. Manion v. Waybright, 59 Idaho 643, 656, 86 P.2d 181.
The presumption of agency arising from the facts recited is, of course, a rebuttable presumption, Manion v. Way-bright, supra, and the jury should have been so instructed in the manner requested by appellants’ proposed instruction number seven.
2. It was shown by the defense that Hair, in common with other salesmen, was under instructions not to use the truck for any purpose other than in the furtherance of his work and not to permit anyone to ride with him except fellow employees. We think there was substantial evidence of the waiver or abrogation of the rule in Hair’s case.
[770]*770At an earlier time he had Jiad an accident while returning from a visit to a .night club in a company truck. On that occasion he had a male guest with him. The accident resulted in the killing of a pedestrian and in Hair’s arrest on a criminal charge. The employer was fully advised of the facts of that incident, but Hair’s known violation of the rule did not eventuate in his dismissal. His services were retained at Donnelly’s suggestion, apparently because he was thought to be a good salesman.
There is evidence that on numerous later occasions women passengers were seen in the car with Hair. From the circumstances in evidence the jury might well believe that his practice in this respect was known to his employer. Donnelly, the district supervisor, was frequently over the territory. Following the accident in which Mrs. Newby was killed Donnelly is reported as having said to Hair, in the presence of witnesses, “Good God, did you have a woman with you again?” Thus it was inferable that Hair’s violation of the rule was sufficiently common and notorious to spell a virtual abrogation of it. Manion v. Waybright, supra, 59 Idaho page 646, 86 P.2d 181.
3. The case is governed by the Idaho guest statute, § 48-901, Idaho Code, 1932, as amended by Laws Idaho 1939, c. 160. The amended statute provides that no person transported in a motor vehicle as a gratuitous passenger shall have a cause for damages against the owner or operator growing out of accident, “unless such accident shall have been intentional on the part of the said owner or operator or caused by his * * * intoxication or his reckless disregard of the rights of others.”
The court quoted this statute to the jury and properly instructed them that it governed the case in all its aspects. The term “reckless disregard,” as employed in the statute, was defined by the court as meaning “an act destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong, rash; without thought or care for consequences.” This definition is substantially in harmony with that approved by the Idaho court. Dawson v. Salt Lake Hdw. Co., Idaho 1943, 136 P.2d 733, 735.
The accident occurred on a straight stretch of oiled highway under circumstances indicative of headlong rashness on the, part of the driver. Physical conditions or marks on the highway, as described by a member of the state highway patrol, fairly show this. Hair testified that he was crowded off the road by a large truck and that one of his tires blew out upon striking a stone. However, there was disinterested testimony to the effect that no other vehicle save that of Hair was in the immediate vicinity at the time. In addition, Hair’s testimony discloses that he knew from previous experience that the car he was driving was difficult to control unless carefully driven. The evidence was sufficient to satisfy the requirements of the statute. Manion v. Waybright, supra; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167.
4. Appellants, in general terms, pleaded contributory negligence on the part of Mrs. Newby. They requested an instruction on that issue which the court declined to give. The issue was not submitted to the jury in any form.
Prior to the adoption of the guest statute, when proof of simple negligence on the part of the driver was enough, it was the rule in Idaho that contributory negligence of a guest, or his failure to register a protest, bars recovery. Dale v. Jaeger, 44 Idaho 576, 258 P. 1081. It is not clear whether, in cases arising under the statute, ordinary contributory negligence of the guest has the same consequence as before. The opinion- of the court in Dawson v. Salt Lake Hdw. Co., supra, is said to intimate the contrary.
In the present state of the record we think it unnecessary to resolve the question. We are not able to find evidence warranting the submission of the issue to the jury. It is true that Mrs.
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HEALY, Circuit Judge.
This appeal is from a judgment awarding damages for the wrongful death of one Avenell Newby, who was the wife of appellee George H. Newby and the mother of the two minor children of the couple.
The death of Mrs. Newby followed injuries received when a small panel truck, in which she was riding as a gratuitous passenger, overturned on ihe highway between Soda Springs and Montpelier, Idaho. The truck was driven by Rulon D. Hair, a traveling salesman in the employ of appellant Reynolds Tobacco Company. Hair was a party defendant below but he did not appeal from the judgment. Appellant Donnelly was district supervisor for the Tobacco Company and Hair’s immediate superior.
The amended complaint in the suit alleged that at the time of the accident the truck was being driven by Hair in the pursuit of his employment. It alleged, in the alternative, that Hair was permitted to operate the truck on the public highways, notwithstanding it was known to the Company and to Donnelly that he “was a careless, reckless and incompetent driver of an automobile and was in the habit of hauling guests contrary to instructions.” To bring the situation within the terms of the local guest statute the death of Mrs. Newby was alleged to be the result of Hair’s recklessness in driving. These allegations were denied by the answer. Around the evidence concerning them revolves the controversy which has brought the case to this court.
We have concluded that the judgment must be reversed because of error in the reception of proof concerning Hair’s previous record as a driver and because of the submission of that issue to the jury. We state, preliminarily, our views on the remaining seriously controversial matters for the guidance of court and counsel in the event another trial is had. What follows is, of course, predicated on the assumption that the showing on a second trial will not differ materially from that made on the first.
1. There was evidence to warrant a finding that at the time of the upset Hair was acting in the course of his employment. The motor car involved admittedly belonged to the Tobacco Company. It was loaded with Company merchandise intended for sale or distribution by the driver. The accident happened during business hours in a locality in which Hair customarily worked as a salesman. In two written reports of the incident made to his employer Hair stated that he was on Company business at the time. At the trial his testimony was to the contrary. He then described the journey as being purely a jaunt of his own in which Mrs. Newby was a participant. But in light of the contradictory statements mentioned the question was for the jury. Manion v. Waybright, 59 Idaho 643, 656, 86 P.2d 181.
The presumption of agency arising from the facts recited is, of course, a rebuttable presumption, Manion v. Way-bright, supra, and the jury should have been so instructed in the manner requested by appellants’ proposed instruction number seven.
2. It was shown by the defense that Hair, in common with other salesmen, was under instructions not to use the truck for any purpose other than in the furtherance of his work and not to permit anyone to ride with him except fellow employees. We think there was substantial evidence of the waiver or abrogation of the rule in Hair’s case.
[770]*770At an earlier time he had Jiad an accident while returning from a visit to a .night club in a company truck. On that occasion he had a male guest with him. The accident resulted in the killing of a pedestrian and in Hair’s arrest on a criminal charge. The employer was fully advised of the facts of that incident, but Hair’s known violation of the rule did not eventuate in his dismissal. His services were retained at Donnelly’s suggestion, apparently because he was thought to be a good salesman.
There is evidence that on numerous later occasions women passengers were seen in the car with Hair. From the circumstances in evidence the jury might well believe that his practice in this respect was known to his employer. Donnelly, the district supervisor, was frequently over the territory. Following the accident in which Mrs. Newby was killed Donnelly is reported as having said to Hair, in the presence of witnesses, “Good God, did you have a woman with you again?” Thus it was inferable that Hair’s violation of the rule was sufficiently common and notorious to spell a virtual abrogation of it. Manion v. Waybright, supra, 59 Idaho page 646, 86 P.2d 181.
3. The case is governed by the Idaho guest statute, § 48-901, Idaho Code, 1932, as amended by Laws Idaho 1939, c. 160. The amended statute provides that no person transported in a motor vehicle as a gratuitous passenger shall have a cause for damages against the owner or operator growing out of accident, “unless such accident shall have been intentional on the part of the said owner or operator or caused by his * * * intoxication or his reckless disregard of the rights of others.”
The court quoted this statute to the jury and properly instructed them that it governed the case in all its aspects. The term “reckless disregard,” as employed in the statute, was defined by the court as meaning “an act destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong, rash; without thought or care for consequences.” This definition is substantially in harmony with that approved by the Idaho court. Dawson v. Salt Lake Hdw. Co., Idaho 1943, 136 P.2d 733, 735.
The accident occurred on a straight stretch of oiled highway under circumstances indicative of headlong rashness on the, part of the driver. Physical conditions or marks on the highway, as described by a member of the state highway patrol, fairly show this. Hair testified that he was crowded off the road by a large truck and that one of his tires blew out upon striking a stone. However, there was disinterested testimony to the effect that no other vehicle save that of Hair was in the immediate vicinity at the time. In addition, Hair’s testimony discloses that he knew from previous experience that the car he was driving was difficult to control unless carefully driven. The evidence was sufficient to satisfy the requirements of the statute. Manion v. Waybright, supra; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167.
4. Appellants, in general terms, pleaded contributory negligence on the part of Mrs. Newby. They requested an instruction on that issue which the court declined to give. The issue was not submitted to the jury in any form.
Prior to the adoption of the guest statute, when proof of simple negligence on the part of the driver was enough, it was the rule in Idaho that contributory negligence of a guest, or his failure to register a protest, bars recovery. Dale v. Jaeger, 44 Idaho 576, 258 P. 1081. It is not clear whether, in cases arising under the statute, ordinary contributory negligence of the guest has the same consequence as before. The opinion- of the court in Dawson v. Salt Lake Hdw. Co., supra, is said to intimate the contrary.
In the present state of the record we think it unnecessary to resolve the question. We are not able to find evidence warranting the submission of the issue to the jury. It is true that Mrs. Newby was shown to have taken two drinks during the evening prior to the accident and one drink at noon of the day of its occurrence. But •there was no proof that she was under the influence of liquor at 4:30 in the afternoon, when the accident happened, or at any other time for that matter.
The only evidence concerning the conduct of Mrs. Newby was that related by Hair. There is in his testimony no intimation that the conduct of the passenger was a moving cause of the accident, or that anything the woman did or failed to do in any way contributed to it. As already observed, his story was that his car upset after an oncoming truck crowded him to the [771]*771shoulder of the road, at which time, according to his testimony, he was driving at a speed of not more than 40 miles an hour. His remaining testimony on the point appears to preclude the claim of assumption of risk. He explained that the rear end of the panel truck was very heavily loaded and that this condition made the car unusually difficult to control, more so than other cars. The witness had had, he said, previous experience with this characteristic of the vehicle. The existence of this latent and serious hazard, familiar to the operator and stressed as a prime cause of the overturn, was, so far as appears, wholly unknown to the passenger.
5. We turn now to the errors referred to at the outset of the opinion. It was the theory of the complainants that if Hair were shown to have a history of recklessness and incompetence as a driver, and that his employer knew it, recovery against the latter would be permissible even though Hair were found to have been acting beyond the scope of his employment at the time of the accident. This theory the trial court adopted and outlined specifically in its instructions to the jury. We have not considered and think it unnecessary to decide whether, on a proper state of facts, this theory is a valid one.
It was partly in an effort to establish such a history that evidence was offered of the incident already related, in which Hair was involved in the killing of a pedestrian. This incident occurred at Pocatello in April of 1939, more than three years prior to the accident in which Mrs. Newby was fatally hurt. No other instance of negligent driving on Hair’s part was substantially brought home to the Company. Nor was any effort made to prove that he bore a reputation for negligence.
Evidence was admitted that in July, 1939, Plair was arrested in Clark County, Idaho, on a charge of reckless driving, and that upon his plea of guilty he was adjudged to pay a fine of $50. An exemplified copy of the judgment in that case was received in evidence, over objection of the defendants. In the record of this judgment the man’s name was given as “B. R. Hair.” There was no showing that either the employer or Hair’s immediate superior, Donnelly, knew of this incident; and knowledge of it on their part was flatly denied. The court admitted the record on the ground that it was one “that did or could give notice” to the employer.
This, we think, was error. Even though it be supposed that the record of the Clark County conviction imparted constructive notice for all purposes, still the name appearing on the face of the record was not that of the employee. In any event the question is not one of constructive notice, but of actual knowledge. Absence of proof on the subject was not supplied by any presumption of knowledge. Nor does due diligence in the supervision of an employee require that an employer maintain a continuous search of the public records in the territory in which the agent operates.
If this item of evidence had been excluded, the showing as regards the employee’s prior known record would consist of a single incident, and the significance even of that is seriously in dispute. On the side of the employer it was claimed that the Pocatello accident was the result of the negligence of the pedestrian rather than of its driver; but even if the contrary be assumed it can hardly be thought that one instance of negligence is sufficient to brand a driver as careless or incompetent to the degree that his retention in service is thenceforward at the employer’s risk. The frailty of this species of proof is notorious. Cf. Olsen v. North Pac. Lbr. Co., C.C., 106 F. 298; Guedon v. Rooney, 160 Or. 621, 87 P.2d 209, 218, 120 A.L.R. 1298; Pittsburgh Rys. Co. v. Thomas, 3 Cir., 174 F. 591. It was error, therefore, to submit to the jury the issue concerning Hair’s previous record.
The judgment is reversed and the case remanded with directions to grant a new trial.