Gorton v. Doty

Agency arises when one person manifests consent that another act on her behalf and subject to her control, and the other person consents to do so. A formal contract, a promise to act, or compensation is not necessary to create that relationship.

Doty knew the football team needed transportation, volunteered her car for that purpose, and specifically selected Garst as the driver by making his driving a condition of its use. Garst accepted that condition and drove the car. Those facts permitted the jury to find mutual consent to an agency relationship.

Although Doty initially described the arrangement as a loan, her fuller account of the conversation did not state that Garst asked to borrow the car or that she agreed to lend it to him. The court treated her actual words—"you might use mine if you drove it"—as sufficient evidence that the arrangement was more than an unrestricted loan.

Gorton estimated that Garst was traveling about fifty-five miles per hour. The accident occurred after dark on an abrupt, sharp ten-percent curve, even though the road was dry, smooth, and free of traffic and the nearly new car was in good condition.

There was no evidence of a mechanical failure or a deliberate departure from the roadway. The car continued off the paved surface, along the shoulder and bank, and down a slope into a gulch. Those circumstances, together with the evidence of speed, reasonably supported an inference that excessive speed on the sharp curve caused the crash.

Because reasonable minds could differ about whether Garst exercised reasonable care, the question was properly left to the jury rather than resolved as a matter of law.

A passenger who recognizes an apparent danger, or who reasonably should recognize it, may be contributorily negligent if he has an opportunity to protest and instead acquiesces. But Gorton testified that he was not conscious of danger before the car began leaving the road and that the first indication of danger came too late to object effectively.

Gorton was also not a gratuitous guest in the ordinary voluntary-host-guest sense. He was a member of the football team under Garst’s authority as coach, and Garst directed the players to ride in the vehicle. Team discipline required the boys to comply.

The evidence did not show that Garst’s negligence was so obvious before the crash that Gorton’s silence barred recovery as a matter of law. The question of Gorton’s contributory negligence was therefore for the jury.

Gorton’s counsel told the jury that prudent automobile owners commonly protect themselves against contingencies like this accident. The trial judge instructed the jury to disregard the statement.

The court concluded that the remark responded to defense counsel’s repeated assertion that Gorton was trying to "mulct" Doty in damages—that is, unfairly punish or impose a financial penalty on her for volunteering her car. That defense argument was itself outside the evidence.

Because the challenged statement was provoked by improper opposing argument and the jury was instructed to disregard it, Doty had no just basis for claiming reversible prejudice.

The trial court instructed that agency results when one person consents that another act on her behalf and subject to her control, and the other consents to do so. That definition correctly described the special principal-agent relationship at issue.

The court also correctly instructed that, if Garst was Doty’s agent at the time of the accident, Doty was chargeable with his acts as if she had driven the car herself. The agency finding was limited to the very trip and conduct involved in the accident; the case did not turn on a general employment relationship.

Doty’s requested instructions incorrectly assumed that agency can exist only when there is a master-servant relationship, a contract, or work that otherwise would have been performed by the principal. A person may be an agent without being a servant or employee, and an agency may arise without compensation or contract.

Doty sought instructions treating Gorton as a gratuitous guest, which would have required proof of gross negligence or reckless disregard under the guest statute. The court concluded that Gorton was not a guest in the statute’s ordinary sense because he was traveling as a football player under the direction and discipline of his coach.

Since Gorton’s presence in the car was tied to the team’s organized trip rather than a voluntary social ride with a host, the court held that the requested guest instructions did not fit the facts.

Gorton sustained a complete fracture of the femur, spent twelve weeks in the hospital, and required surgery involving a steel plate because splints and other external measures could not keep the bone aligned. He also experienced serious pain, delirium, and nervous effects following the crash.

At trial, Gorton still suffered swelling and pain, could walk only five or six blocks before his leg hurt, and had not fully recovered from the accident’s nervous effects. The jury was entitled to compensate both past and anticipated pain and impairment.

Damages for personal injury cannot be calculated with precision. In the absence of evidence that the jury acted from bias or prejudice, the court would not disturb an award supported by the record.