Opinion
June 5, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bruno & Bruno, H. D. Reed, Denver, for plaintiffs-appellants.
White & Steele, P.C., Walter A. Steele, Denver, for defendant-appellee.
ENOCH, Judge.
Robert E. Horst and his family, plaintiffs-appellants, initiated this action against Roy Smith, defendant-appellee, and against Maurice J. Meehan, to recover damages resulting from a two-car collision. Plaintiffs were the occupants of the car which was struck from behind by a car driven by Meehan and owned by Smith, the latter doing business as Mountain View Conoco Service. At trial, plaintiffs obtained jury verdicts against Meehan, and judgments on those verdicts are not at issue on this appeal nor is Meehan a party to the appeal. The only issue before us is whether the trial court erred in granting Smith's motion for a directed verdict at the close of plaintiffs' evidence, thereby removing from the jury the question of whether Meehan was, at the time of the accident, acting within the scope of his employment. We find no error and affirm the judgment.
The only evidence as to Smith's liability comes from plaintiffs' cross-examination of Meehan who was called as an adverse witness. There is neither dispute nor conflict concerning this testimonial evidence. Smith owned and operated a service station and a small used car lot in Thornton, Colorado. Smith employed Meehan primarily to repair used cars which Smith acquired for resale. Meehan lived in Wheatridge approximately fifteen miles from his job, and he drove his own car to and from work until November 1969 when his car broke down. Smith then gave Meehan permission to use the station service truck or, if it were not available, one of the cars from the used car lot to drive directly home in the evening and back to work the following morning. Thereafter Meehan did use one of Smith's vehicles to commute between his home and job, though occasionally Meehan used his wife's car.
On Sunday, March 22, 1970, the day of the accident, Meehan had the day off. He met with friends and consumed a considerable quantity of beer between 11:00 a.m. and 2:30 p.m. About 3:00 p.m. his wife took him in her car to the service station so that he could pick up a vehicle to drive home in order to have transportation to work Monday morning. Since the service truck was not available, Meehan drove home in a car selected from Smith's used car lot. He parked the car near his home, locked it, and went to his apartment. Anticipating a long work day on Monday, he took four of his wife's sleeping tablets at about 4:00 p.m., laid down on his bed, and went to sleep. At approximately 5:15 p.m., while driving the used car, Meehan rearended Horst's car on Interstate 70 near the intersection of Lowell Boulevard in Denver. Meehan had no recollection of any events that took place between the time he went to sleep at home that Sunday afternoon and the time when he regained consciousness in a hospital.
Plaintiffs contend that on the basis of the preceding facts a presumption then arose that Meehan was acting within the scope of his employment and that a prima facie case of liability was established against Smith. Plaintiffs further contend that the burden of proof shifted to Smith to prove that, at the time of the accident, Meehan was not in the course of his employment. Plaintiffs' own evidence negates these contentions and rebuts the alleged presumption. Meehan was not working Sunday, and he had completed his trip from the job site to his home before the accident occurred. There was no further authorized use of the automobile that could have been considered to be within the scope of his particular employment until Monday morning when Meehan would drive from home to work.
Most of the cases cited by plaintiffs are not in point in that they involve situations where the accident occurred while the employee was driving to or from work or situations in which there was a conflict in the evidence. Plaintiffs also rely upon this court's decision in Firestone Tire and Rubber Co. v. Clossen, Colo.App., 472 P.2d 732 (a case not officially published). However, that case merely stands for the proposition that, when conflicting evidence is presented, the scope of employment issue becomes one for resolution by the jury. Here, the record supports the trial court's action since there was No evidence that Meehan was acting within the scope of his employment. See Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43.
Plaintiffs proved that Smith was Meehan's employer as well as the owner of the car Meehan was driving. Plaintiffs' own evidence, however, as previously indicated, rebutted any presumption that might have arisen that Meehan was acting within the scope of his employment, and plaintiffs failed in their burden of proof to show that Meehan was so engaged at the time of the accident.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.