APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Division of St. Croix (D.C. No. 91-cv-00231)
Before: STAPLETON, LEWIS and WEIS, Circuit Judges
In this Virgin Islands automobile accident case, evidence that an employee was driving a company car for his own convenience, together with a presumption of vicarious liability on the part of the employer, raised a question for the jury to resolve. Because the trial court granted a partial judgment as a matter of law against the employer on the respondeat superior issue, we will reverse and remand for a new trial.
For guidance on the retrial, we note that an unsupported opinion by an actuarial expert on the plaintiff's future earnings should not be received into evidence. We also conclude that the failure of defense counsel to advise the plaintiff's lawyer of an interview with an attending physician is not an adequate ground to exclude that doctor's testimony.
Plaintiff Antonio Williams was injured on St. Croix, Virgin Islands on December 12, 1990 when his pickup truck collided with an automobile owned by defendant Esso and operated by Joseph Rene, one of its employees. Williams sued both Esso and Rene in the District Court of the Virgin Islands. At the conclusion of the evidence at the trial, on the plaintiff's motion, the court dismissed Rene from the case. The jury then awarded plaintiff a verdict of $4.5 million against Esso. The district court denied Esso's post-trial motions. Williams v. Rene, 886 F. Supp. 1214 (D.V.I. 1995).
Esso had assigned the automobile in question to the position held by one of its employees, Helen Sia. In carrying out her duties as a sales representative, Sia traveled frequently to visit various customers in the Virgin Islands. Esso permitted her to take the company car home after work and to use it for personal matters.
Sia's office was located about a quarter of a mile from the St. Croix Airport Terminal and was separated from it by the "Esso Yard." On some occasions, she would drive from her home to the airport terminal to meet with customers. At other times, she would travel directly from her residence to her office. If it became necessary during the work day to go to the airport terminal, Sia would either walk, drive the company car, or be "shuttled" by another Esso employee who might be available.
On the evening of December 11, 1990, the day before the accident, Sia drove the company car to her home with a passenger, her co-employee Rene, whose own vehicle had broken down. When they arrived at Sia's residence, she turned the car over to Rene, who then drove it to his home, some distance away. The understanding was that Rene would return the automobile to Sia at her home the following morning. She would then drive to the airport for a business appointment there, dropping Rene off at his job site.
Rene was a crew leader in the Esso group that refueled planes at the St. Croix Airport. He was not Sia's supervisor nor did she supervise him. No supervisory person authorized Rene to drive the car on this occasion.
The accident occurred not long after Rene left his home, between 6:45 a.m. and 7:00 a.m., and while he was en route to Sia's home. The record does not disclose when Sia and Rene were to report to work, but it may be assumed that the starting times were after the hour at which the accident occurred.
At the close of the evidence, the trial court granted the plaintiff's motion for a partial judgment as a matter of law, holding Esso responsible under respondeat superior principles. Plaintiff also moved to dismiss Rene as a defendant "conditioned on the granting of the motion for respondeat superior and . . . seek its damages solely from Esso as a result of its employee in the course and scope of his employment." That motion was also granted and the case went to the jury with Esso as the sole defendant.
Defendant appealed, asserting that the district court erred in granting judgment as a matter of law on the agency issue and in failing to grant a remittitur or order a new trial because of the excessiveness of the verdict.
The plaintiff's theory of liability against Esso is based on respondeat superior, that is, that an employer is responsible for the negligence of its employees that occurs within the course and scope of their employment. The employer's liability is vicarious and secondary to that of the employee, which is primary. The relationship was explained in Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951): "[T]he person primarily liable is the employee or agent who committed the tort, and the employer or principal may recover indemnity from him for the damages which he [the employer] has been obliged to pay." Accord Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d Cir. 1982); Tromza v. Tecumseh Prods. Co., 378 F.2d 601, 605 (3d Cir. 1967). The Restatement (Second) of Agency is in agreement. Section 401 comment (d) reads, "a servant who, while acting within the scope of employment, ...