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Harris v. Keys (11/14/97), 948 P 2d 460
<![CDATA[
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SETH HARRIS and WALTER MOORE, )
) Supreme Court No. S-7105/7126
Appellants and )
Cross-Appellees, ) Superior Court No.
) 3KN-93-654 CI
v. )
)
ROBERT KEYS and BARBARA ) O P I N I O N
MEYERS, d/b/a HOMER CABINS, )
and BOBBIE SATTERWHITE, ) [No. 4903 - November 14, 1997]
)
Appellees and )
Cross-Appellants. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Appellants/Cross-Appellees. Frank S.
Koziol, Law Office of Frank S. Koziol, Anchorage, for
Appellees/Cross-Appellants Robert Keys and Barbara Meyers, d/b/a
Homer Cabins. No appearance by Appellee Bobbie Satterwhite.
Before: Compton, Chief Justice, Matthews,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]
COMPTON, Chief Justice.
I. INTRODUCTION
Seth Harris and Walter Moore appeal from a judgment of
the superior court, entered on a jury verdict, dismissing their
suit against Robert Keys for injuries which Harris sustained in the
winter of 1992. Keys cross-appeals. We affirm.
II. FACTS AND PROCEEDINGS
In August 1992, Robert Keys and Barbara Meyers, d/b/a
Homer Cabins (Keys), contracted to remove discarded wood from a
site they leased near Ninilchik, Alaska. After a log splitter was
stolen from the site, Keys parked at the site a motor home he
owned, and asked Bobbie Satterwhite to stay there to discourage
further theft. [Fn. 1] Satterwhite agreed to live in the motor
home, and moved in with his friend Elizabeth. The parties dispute
whether Satterwhite had any duties beyond living in the motor home
at the site, [Fn. 2] as well as Satterwhite's compensation for such
duties. [Fn. 3] The motor home had a built-in furnace and two
portable heaters. All three were missing or destroyed by December,
although Keys testified that he was never told the furnace was
inoperable. Satterwhite heated the motor home with a propane
stove, which vented carbon monoxide into the motor home.
In November, Satterwhite left the site and did not return
for a month. Keys believed that Satterwhite had abandoned the
site, thereby terminating the arrangement. Satterwhite returned to
the site in mid-December, accompanied by Elizabeth and Seth Harris.
[Fn. 4] When Keys discovered them at the site on December 16, Keys
allegedly told them to leave. They did not do so. Satterwhite
denies he was told to leave.
Keys visited the site several times from December 16 to
December 24. The parties dispute exactly what happened during that
period, and which days Keys visited the site. However, it is clear
that Keys found Harris and Satterwhite at the site during several
visits, and believed that they were or had been drinking. On one
occasion, Keys had to help Satterwhite dress himself. [Fn. 5] Keys
also observed that the motor home was disorderly, and that the
propane stove was being used without ventilation. Nevertheless,
Satterwhite told Keys that everything was "going pretty good."
Keys did not believe that Harris and Satterwhite were in any
danger, because they had ample fuel and food and the motor home was
warm.
Keys visited Harris's grandfather, Walter Moore,
following several of his trips to the site, and informed Moore of
his observations. On December 24, Moore asked Keys to drive him to
the site, or to lend him the key to a gate which barred access to
the site. Keys refused to do so. [Fn. 6]
On December 25, Harris and Satterwhite visited a nearby
bar. Harris displayed signs of frostbite. Later that day, Keys
received a call stating that Elizabeth was dead or seriously ill.
Keys and Moore accompanied paramedics and police to the motor home.
At the site, they found Elizabeth dead from an infection, and
Harris frost-bitten and incoherent. Tests revealed high levels of
carbon monoxide in Harris, but negligible levels in Elizabeth.
Harris lost both feet to frostbite and suffered neural damage from
shock.
Harris and Moore brought suit against Keys. Prior to
trial, Harris and Moore attempted to shift the burden of proof
regarding Satterwhite's negligence as a cause of injury, on the
ground that Keys had cleaned the motor home and destroyed evidence
relevant to that issue. The superior court denied this motion. In
addition, the court refused to admit Elizabeth's diaries, which
contained records of Satterwhite's work. The court also refused to
allow late addition of several witnesses, or to admit their hearsay
testimony.
Following trial, the jury found that Satterwhite was
negligent, and that his negligence was a cause of harm to Harris.
The jury found that Keys was not negligent, and that Satterwhite
was not his agent. The court denied a motion for judgment
notwithstanding the verdict. Harris and Moore appeal; Keys cross-
appeals.
III. DISCUSSION
A. The Superior Court Properly Refused to Disturb the Jury's
Resolution of the Agency Issue.
Harris and Moore first challenge the jury's conclusion
that Satterwhite was not an agent of Keys. "This court's role in
reviewing a grant of a motion for a directed verdict or JNOV is not
to weigh conflicting evidence or judge the credibility of
witnesses, but rather to determine whether [the] evidence, when
viewed in [the] light most favorable to the non-moving party, is
such that reasonable persons could not differ in their judgment
. . . . [I]f there is room for diversity of opinion among
reasonable people, the question is one for the jury." Korean Air
Lines Co. v. State, 779 P.2d 333, 338 (Alaska 1989) (citations and
quotations omitted). Since the evidence does not compel the
conclusion that an agency relation existed, we must affirm the
decision of the superior court.
Under Alaska law, "'an agency relation exists only if
there has been a manifestation of the principal to the agent that
the agent may act on his account and consent by the agent so to
act.'" Bruton v. Automatic Welding & Supply Corp., 513 P.2d 1122,
1126 (Alaska 1973) (citation omitted) (quoting Restatement (Second)
of Agency  15). If the arrangement required Satterwhite to "act
on Keys's account, subject to Keys's control,"an agency relation
existed, and Harris's and Moore's claims regarding the nature,
scope, and duration of that relation would merit consideration.
Restatement (Second) of Agency  1. However, if the arrangement
were characterized as an agreement in which Satterwhite would live
in the motor home on site in exchange for such benefits as might
accrue to Keys from occupancy by Satterwhite, Keys and Satterwhite
would have been landlord and tenant, or bailor and bailee (given
the personal property nature of the motor home [Fn. 7]) and not
principal and agent. [Fn. 8] See id. (holding that loan of tractor
was a bailment, and did not create agency relation).
Alaska case law does not delineate precisely between an
agency relationship and a landlord-tenant relationship or a bailor-
bailee relationship. Every non-gratuitous tenancy or bailment
results in the tenant/bailee serving the purposes of the
landlord/bailor, which arguably could be "acting on the account"of
the owner. Indeed, it is clear that, when Satterwhite began
occupying the motor home, he served Keys's purposes by living at
the site. [Fn. 9] However, Harris and Moore cite no authority, and
we are aware of none, which indicates that every tenancy or
bailment which serves the owner's purposes renders the
tenant/bailee an agent of the owner. Indeed, other jurisdictions
recognize "bailments for hire"or "bailments for mutual benefit,"
but do not characterize such relationships as agency relationships.
See, e.g., Waggoner v. General Motors Corp., 771 P.2d 1195 (Wyoming
1989) (recognizing bailment for mutual benefit); see also Bannister
v. Hertz Corp., 450 S.E.2d 629, 630 (S.C. App. 1994) (holding that
bailment, whether gratuitous or for hire, does not render bailor
responsible for negligent uses of property where bailor has
relinquished control of that property). Similarly, "[i]t is
accepted law that the relationship of lessor and lessee is not that
of principal and agent." DeArmon v. B. Mears Corp., 325 S.E.2d
223, 227 (N.C. 1985) (quoting Brown v. Ward, 20 S.E.2d 324, 326
(N.C. 1942)); see also Coe v. Esau, 377 P.2d 815, 818 (Okla. 1963)
("[T]enancy alone will not render the landlord liable for the torts
of his tenant."). Mere occupancy of the motor home by Satterwhite
and performing the duties that one would ordinarily expect of a
tenant or bailee occupant would not entail sufficient acting on the
account of Keys to create an agency relationship.
Further, the Restatement's requirement that an agent act
"on the principal's account"should be interpreted as requiring
action under the principal's control, rather than merely action
which serves the principal's purposes. See Nava v. Truly Nolen
Exterminating, 683 P.2d 296, 299 (Ariz. App. 1984) (holding that
crucial distinction between agency and bailment is "the bailee's
freedom from control by the bailor"). Hence, if the jury could
have concluded that the services to be performed by Satterwhite for
Keys did not go beyond those inherent in a normal landlord-tenant
or bailor-bailee relationship, or if the jury could have concluded
that Satterwhite was not subject to control by Keys, its conclusion
that no agency relationship existed had sufficient support to
withstand review.
There was evidence that the agreement concerning the use
of the motor home was that Satterwhite could live in it. His only
duty was to keep it clean and not permit any smoking in it. From
this evidence the jury could have concluded that there was no
agreement for services beyond that inherent in a normal landlord-
tenant or bailor-bailee relationship and therefore no agency
relationship was created.
Concerning the issue of control, Satterwhite failed to
keep the motor home clean, despite the fact that Keys permitted him
to live there only on the condition that he keep the motor home
clean. In addition, Satterwhite abandoned the site for several
weeks without informing Keys, and then returned without Keys's
knowledge or consent. Moreover, Satterwhite allowed Harris to stay
at the site even though Keys had ordered Harris to leave. On this
evidence, a jury could conclude that Keys did not in fact exercise
control of Satterwhite's conduct at the site. It is less clear
whether Keys had the right to control Satterwhite, but declined to
exercise that right, or whether Keys lacked the right entirely.
However, Keys's failure to exercise control, despite the fact that
Satterwhite had nearly destroyed his motor home, suggests that the
ability to control was absent. Based on this evidence, a jury
could conclude that Keys retained no right to control Satterwhite
beyond the right to terminate the bailment or tenancy and expel
Satterwhite from the motor home. From this conclusion, it would
also follow that Keys and Satterwhite were not principal and agent.
Since a jury could reasonably conclude that Keys and
Satterwhite were not principal and agent, [Fn. 10] the jury's
conclusion that no agency relationship existed must be upheld. [Fn.
11]
B. The Jury Instructions Do Not Constitute Reversible Error.
"In evaluating whether there has been prejudicial error,
the reviewing court must put itself in the position of the jurors
and determine whether the error probably affected their judgment."
Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847, 851
(Alaska 1993). This court reviews the question de novo. Conam
Alaska v. Bell Lavalin Inc., 842 P.2d 148, 153 n.9 (Alaska 1992).
While the instructions were not a paradigm of clarity, they do not
constitute grounds for reversal.
The instructions required the jury to consider whether
Satterwhite was an agent of Keys before considering whether he was
a servant of Keys. Under the Restatement (Second) of Agency, a
master and servant relationship is a specialized form of agency
relationship. Restatement (Second) of Agency  2 (1958), cmt. a
("A master is a species of principal and a servant is a species of
agent."); see also id.  25 ("The rules applicable generally to
principal and agent as to the creation of the relation . . . apply
to master and servant."). Accordingly, absent a finding that an
agency relationship existed, the jury had no basis for concluding
that a master and servant relationship existed. The jury
instructions were unclear in that the jury was not instructed that
a servant or employee is a subspecies of agent. [Fn. 12] However,
we find it unlikely that this error affected the jury's judgment.
In final argument, both counsel treated the issues of agency and
master and servant as essentially the same question, disregarding
any distinction between an agent and a servant. In the absence of
any indication that the jury might have been led to believe that
the definition of an agency relationship would not include a master
and servant relationship, we are unable to say that the instruction
or the Special Verdict Form had any likely effect on the verdict.
C. The Superior Court Did Not Err by Excluding Elizabeth's
Diaries.
Harris and Moore contend that the superior court wrongly
excluded Elizabeth's diaries, which supported Satterwhite's claim
that he worked for Keys. "This court reviews the superior court's
decisions on the admissibility of evidence for an abuse of
discretion." Estate of Arrowwood v. State, 894 P.2d 642, 646 n.13.
(Alaska 1995). An abuse of discretion exists only if the reviewing
court is "left with a definite and firm conviction, after reviewing
the whole record, that the trial court erred in its ruling." Colt
Ind. Operating Corp. v. Frank W. Murphy Mfr., 822 P.2d 925, 932
(Alaska 1991). The diaries are hearsay, [Fn. 13] and the hearsay
exceptions which Harris and Moore cite do not apply. This claim
therefore fails.
Harris and Moore base their first argument for admission
of the diaries on Alaska Rule of Evidence 803(6), the "business
records"exception to the hearsay rule. This exception allows
admission of a record made "from information transmitted by[] a
person with knowledge acquired of a regularly conducted business
activity . . . if it was the regular practice of that business
activity to make and keep the memorandum . . . unless the source of
information or the method or circumstances of preparation indicate
lack of trustworthiness." The accuracy of the diaries, the
significance of the entries, and whether the entries were made
routinely were subject to much dispute and conflicting evidence.
In light of the evidence that the diaries were inaccurate and were
not regularly kept and the dispute concerning the significance of
those entries that were made, we conclude that the superior court
did not abuse its discretion in excluding them.
Harris and Moore also cite Alaska Rule of Evidence
803(5), which allows admission of a "record concerning a matter
about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter
was fresh in the witness' memory and to reflect that knowledge
correctly."[Fn. 14] While Keys questioned the accuracy of
Satterwhite's memory, Satterwhite never expressed any difficulty
recalling whether he cut wood at the site. The entries therefore
do not concern "a matter about which a witness once had knowledge
but now has insufficient recollection"to discuss accurately.
Alaska R. Evid. 803(5). As a result, the superior court's refusal
to apply this exception was not an abuse of discretion.
D. The Superior Court's Refusal to Permit the Untimely
Addition of Witnesses Did Not Constitute Error.
Harris and Moore also challenge the superior court's
refusal to allow them to add witnesses to the trial list, or to
admit the hearsay statements of those witnesses. The superior
court's decision concerning the addition of the witnesses is
reviewed for an abuse of discretion. Alaska Airlines, Inc. v.
Sweat, 568 P.2d 916, 933 (Alaska 1977) (holding that trial court's
refusal to permit testimony of witnesses not on witness list was
not abuse of discretion). The court's exclusion of the statements
of those witnesses is also reviewed for an abuse of discretion.
Arrowwood, 894 P.2d at 646 n.13.
Harris and Moore contend that they were unable to present
the added witnesses in a timely fashion, because Keys's false claim
that he had no employees delayed discovery of those witnesses.
This contention was not raised below, and therefore will not be
considered on appeal. Wettanen v. Cowper, 749 P.2d 362, 364
(Alaska 1988) (holding that arguments not raised below are
considered waived on appeal absent plain error). Harris and Moore
did discover this evidence following the permitted late addition of
another witness. However, no authority indicates that once a trial
court permits late addition of a witness, it also must permit
addition of any witnesses revealed by information that witness
provides. Moreover, the testimony of the added witnesses would
have been cumulative, since they were called to show that Keys paid
other employees with barter, and another of Keys's employees
testified to that effect. Since the superior court had great
discretion regarding late addition of witnesses, this claim fails.
Harris and Moore also challenge the superior court's
refusal to admit the hearsay testimony of these employees under the
exception for admission of a party opponent or the agents thereof.
Alaska R. Evid. 801(d)(2)(D). "[T]he existence of an agency
relation cannot be proved by the alleged agent's extra-judicial
statements." Ellis v. Kneifl, 834 F.2d 128, 131 (8th Cir. 1987)
(holding that law clerk was not agent of judge); see also United
States v. Portsmouth Paving Corp., 694 F.2d 312, 321 n.12 (4th Cir.
1982) ("[T]o avoid bootstrapping, agency must be demonstrated
without the help of the statement sought to be admitted."). [Fn.
15] The statements which the superior court excluded were offered
to establish that the declarants were agents of Keys. Under Ellis,
the court's refusal to allow the alleged agent's extra-judicial
statements to be used to demonstrate an agency relationship was
correct. The fact that another witness testified that he met these
witnesses on a charter he booked through Keys might indicate that
an agency relationship existed. See Portsmouth Paving, 694 F.2d at
322 (holding that agency relationship was demonstrated by the fact
that alleged agent answered the phone at employer's business).
Nevertheless, since this fact did not establish that the witnesses
at the charter were employees of Keys, as opposed to independent
contractors, the superior court did not abuse its discretion by
refusing to admit the statements.
E. The Superior Court's Refusal to Shift the Burden of Proof
Due to the Spoliation of Evidence Was Not Reversible Error.
Harris and Moore contend that Keys's cleaning of the
motor home hindered their efforts to show that Satterwhite's
negligence caused Harris's injuries, and that the superior court
erroneously refused to shift the burden of proof on that issue.
However, the jury found for Harris and Moore on this point. Since
Harris and Moore prevailed on the issue which they claim the
destroyed evidence would impact, they were not prejudiced by the
alleged error. This claim therefore lacks merit.
F. Keys Is Not Liable for Failing to Allow Moore to Rescue
Harris.
Harris and Moore argue that Keys negligently failed to
permit Moore to rescue Harris, by refusing to give Moore a key to
a gate which barred the road to the motor home. The jury
considered this claim and did not find Keys negligent. Since this
claim presents a question of fact, the jury's decision must be
upheld unless "reasonable persons could not differ in their
judgment"to the contrary. Korean Air Lines, 779 P.2d at 338.
Under Section 327 of the Restatement (Second) of Torts
(1965), if Keys knew or had reason to know that a third party was
prepared to give aid which was necessary to prevent harm to Harris,
and Keys negligently prevented that person from doing so, Keys
would be liable for any harm which Harris could have avoided absent
Keys's negligence. Keys knew that Moore was prepared to aid
Harris, but failed to give Moore the key to the gate. However,
Moore's driver testified that he could have driven around the gate
if the need arose. As a result, the jury could conclude that
Keys's failure to give Moore the key did not prevent Moore from
aiding Harris. Moreover, a jury could find that Keys had a
reasonable basis to believe that Satterwhite and Harris were not in
danger, as indicated by Satterwhite's own statement to Keys. This
conclusion could support a finding that Keys was not negligent,
either in failing to permit Moore to rescue Harris, or in failing
to rescue Harris himself. Since the jury's conclusion has ample
support, we will not disturb that conclusion.
G. Harris and Moore Have Waived Any Objection to the Lack of
a Judgment against Satterwhite.
On appeal, Harris and Moore challenge the superior
court's failure to enter a judgment against Satterwhite. [Fn. 16]
Harris and Moore may have submitted a Proposed Special Verdict
form, which permitted judgment against Satterwhite alone. [Fn. 17]
However, the superior court used a different form which did not
allow for such a finding. Harris and Moore submitted detailed
objections to that form, but made no objection based on the failure
of that form to allow for a judgment against Satterwhite. [Fn. 18]
Harris and Moore did not object to the court's failure to enter a
judgment against Satterwhite until the court began to prepare the
final judgment form. [Fn. 19] At that point, the jury had been
excused, but had not considered either Harris's comparative
negligence or the amount of damages which Harris might recover
against Satterwhite. This post-verdict objection was therefore
untimely; it was not properly presented to the court below.
"Arguments not raised in the trial court are waived and will not be
considered on appeal, except to the extent that plain error has
been committed." Wettanen, 749 P.2d at 364. This claim therefore
fails.
IV. CONCLUSION
Since a reasonable mind could accept the jury's
conclusion that Keys is not liable for Satterwhite's conduct, that
conclusion will not be disturbed on appeal. The challenges to the
jury instructions and various evidentiary rulings all lack merit.
Accordingly, the decision below is AFFIRMED.
FOOTNOTES
Footnote 1:
Satterwhite had worked for Keys at other sites, in exchange
for bartered items and small amounts of cash.
Footnote 2:
Keys claims that Satterwhite did no other work for him, but
was allowed to cut wood for his own benefit. Satterwhite contends
that he also cut wood for Keys.
Footnote 3:
Keys claims that Satterwhite received only the right to live
in the motor home and cut wood for his own benefit. Satterwhite
contends that Keys compensated him with groceries, cigarettes, and
beer, plus a finishing bonus of $500. Keys did carry worker's
compensation insurance for work done at the site, and set up a
joint checking account with Satterwhite.
Footnote 4:
After Satterwhite returned to the site, Harris began to haul
wood from the site. The parties dispute whether Harris did so with
Keys's permission, although Keys admits paying Harris for
transporting several loads of wood without first obtaining Keys's
permission.
Footnote 5:
On this visit, Keys also found the motor home door fused shut
with frozen urine, and Harris asleep on the floor amidst piles of
refuse.
Footnote 6:
Keys claims that under the terms of his lease, he was
forbidden to give the key to the site to anyone else.
Footnote 7:
"A relationship of bailor-bailee arises when the owner, while
retaining general title, delivers personal property to another for
some particular purpose upon an express or implied contract to
redeliver the goods when the purpose has been fulfilled." Bruton,
513 P.2d at 1126 (citation and quotations omitted).
Footnote 8:
"[A] bailee has, as such, no power to subject the bailor to
liability in contract or tort." Bruton, 513 P.2d at 1126
(citations and quotations omitted). However, a bailee may also
qualify as an agent if the bailor retains control of the
transaction. Nava v. Truly Nolen Exterminating, 683 P.2d 296, 299
(Ariz. App. 1984).
Footnote 9:
It is undisputed that Keys initially permitted Satterwhite to
live in the motor home in exchange for services, although the
parties dispute whether those services included work beyond theft
deterrence and whether Satterwhite continued to serve Keys's
purposes after leaving the motor home for several weeks in
November.
Footnote 10:
Harris and Moore also attempt to hold Keys liable on the
theory that Satterwhite was an independent contractor, whom Keys
negligently failed to oversee. The jury considered this claim and
found that Keys was not negligent. Harris and Moore state no basis
for disturbing this verdict on appeal.
Footnote 11:
Since a master and servant relationship is a specialized type
of agency relationship, see Restatement (Second) of Agency  2
(1958), cmt. a ("A master is a species of principal and a servant
is a species of agent."), the jury's conclusion that no agency
relationship existed obviates the need to consider the existence
and scope of any master and servant relationship between
Satterwhite and Keys.
Footnote 12:
Alaska Civil Pattern Jury Instruction 23.03 provides a less
complex manner of presenting the issues of agency and respondeat
superior to a jury. That instruction squarely addresses the issue
of respondeat superior without first considering whether any form
of agency relationship existed. Harris and Moore requested that
the pattern instruction be given. In our view, the trial court
abused its discretion in failing to grant that request. However,
this error was harmless.
Footnote 13:
"Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Alaska R. Evid. 801 (c).
Footnote 14:
Keys contends that the exception does not apply because
Satterwhite himself did not make the entries. However, Satterwhite
claimed to have verified the entries when they were made. This
claim could support a ruling that Satterwhite adopted the
statements when made. This contention therefore fails.
Footnote 15:
While the noted cases involve the federal rules of evidence,
the Alaskan rule in question follows the federal model. Fed. R.
Evid. 801(d)(2)(D).
Footnote 16:
Alaska Civil Rule 14 permits a plaintiff to obtain a judgment
against a third party defendant. Alaska R. Civ. P. 14(c). Benner
v. Wichman, 874 P.2d 949 (Alaska 1994) suggests that such a
judgment was permissible prior to the enactment of Civil Rule 14.
Id. at 958 (holding that jury may apportion fault to third party
defendants).
Footnote 17:
A factual dispute exists as to whether Harris and Moore
actually submitted this form to the court. Harris and Moore argue
that this item should have been included in the record. We
remanded this issue to the superior court, which found that this
form was not part of the record, and that Harris and Moore mis-
remembered the discussion of the form at trial. Moreover, even if
this form had been made part of the record, it would not alter our
resolution of this issue. This "working draft"dealt primarily
with Keys's responsibility for Satterwhite's conduct. The mere
fact that this form also would have permitted judgment against
Satterwhite would not be sufficient, in and of itself, to support
the claims of Harris and Moore that the issue of a separate
judgment against Satterwhite was properly raised and argued to the
court below.
Footnote 18:
Harris and Moore claim to have objected at this point.
However, the record does not support their claim. Moreover, the
trial judge has no recollection of any objection based on the
absence of a provision permitting judgment against Satterwhite, but
instead remembers Harris's and Moore's objections as relating to
the vicarious liability issues.
Footnote 19:
Harris and Moore asked the court to instruct the jury to
consider damages after finding that Satterwhite was not an agent of
Keys. However, this request was premised on their claim that
Satterwhite could be a servant but not an agent, and had no bearing
on a possible judgment against Satterwhite alone.
 In the Supreme Court of the State of Alaska
Seth Harris and Walter Moore, )
) Supreme Court No. S-07105/7126
Appellants/Cross-Appellees, )
v. ) Order
) Petition for Rehearing
Robert Keys and Barbara Meyers, )
d/b/a Homer Cabins and Bobbie Satterwhite )
Appellees/Cross-Appellants. ) Date of Order:
11/14/97
)
Trial Court Case # 3KN-93-00654CI
Before: Compton, Chief Justice, Matthews, Fabe, and Bryner, Justices, and
[Eastaugh, Justice, not participating].
On consideration of the Petition for Rehearing, filed on September 23, 1997,
It is Ordered:
1. The Petition for Rehearing is Granted for the limited purpose of correcting the
original opinion with clarifying language listed below. In all other respects, the petition for rehearing
is DENIED.
2. Opinion No. 4883, issued on September 12, 1997, is Withdrawn.
3. Opinion No. 4903 is issued in its place today. The language on page 10, lines 15
through 17 has been modified.
Entered by direction of the court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Supreme Court Justices
Judge Link
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
Michael W. Flanigan
Frank S. Koziol, Jr.
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