60 Pa. Super. 56 | Pa. Super. Ct. | 1915
Opinion by
The plaintiff seeks to recover damages for the death of his son and for injuries to two of his other children, all minors, caused by an automobile. The chauffeur, who was driving the car that caused the injury, was regularly employed by the defendant. On the day of the accident, after executing various orders given, he was returning at six o’clock from Columbia avenue to the garage, where the car was kept located between twenty-seventh and twenty-eighth streets, north of Girard avenue. When turning on to Girard avenue from seventeenth street he stopped his car to repair a punctured tire, and while he was working it was raining. What followed, important to the case, may be stated in the language of the chauffeur: “Then I started to go back to the garage. My clothes were all wet from changing the tire in the rain, and I hadn’t had no dinner, and I knew if I went into the garage then I would have to be there for an hour or an hour and a half or two hours to straighten my tires up, so I thought I would go out home and put dry clothes on and get supper before I done that work.” In going to his home in West Philadelphia he passed within two or three squares of the garage and con
Was the servant engaged in his master’s business or was the trip to his home, for the purpose as stated, within the scope of his employment; or was it for his own personal convenience and comfort? If the trip was within the scope of his employment, the return was likewise. It is essential to a recovery in this case that it be made to appear that the accident, in which the plaintiff’s sons were injured, occurred while the person in charge of the automobile was using it in the course of his employment and on his master’s business: Lotz v. Hanlon, 217 Pa. 339; Curran v. Lorch, 243 Pa. 247. The test of all cases like the present one is the scope of the servant’s employment. If the accident occurred within the general scope of this authority, the presence or absence of direct authority does not affect the master’s liability to the injured parties: Marcus v. Gimbel, 231 Pa. 200. Or if the act be done within the apparent scope of the authority of the servant yet is done in violation of the master’s instructions, this would not relieve the master from liability: Moon v. Matthews, 227 Pa. 488; McClung v. Dearborne, 134 Pa. 396.
The servant was in continuous employment from seven o’clock in the morning until he finished his work at the garage after supper. His duties were general and included not only obedience to his master’s directions but the supervision of the car, to keep the car, as such, in running order. This may be taken from the chauffeur’s description of what he was doing during the day and what he was required to do in the evening after supper. But while the chauffeur or servant was on duty from seven o’clock in the morning until ten or eleven o’clock in the evening, and was, during all of that time,
. In determining the scope of employment, each case must, to a great extent, stand upon its individual facts and where the evidence is such that an inference of employment may be drawn from it, the.case is for the jury. “For all acts done by the servant in obedience to the express orders or directions of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering , the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible: Stone v. Hills, 45 Connecticut, 44:” Ritchie v. Waller 63 Connecticut, 155.
The servant stated that it was necessary for him. to go back to the garage to repair the car so, as we may reasonably infer, that it might be ready for the master’s use the next day. It was seven o’clock in the evening when, he had finished repairing his second puncture during the day. His clothing became wet from the rain while engaged in his master’s business. To enable the. chauffeur to properly attend to the duties of his master he must be in fit physical condition to perform his services. This condition of the servant is of as much .concern' to the master and is as much related to the business of his employment as is the repair of the car. If, in the service of the master, the servant, from the happening of an unexpected event caused by the opera
We need not dwell upon the slight deviation which was made on the return' trip to get the cigars. This, under the authority of Witte v. Motor Co., 244 Pa. 172, would not relieve the master. The trip past the garage to the house in West Philadelphia, if there were no other circumstances involved, could be scarcely minimized into a deviation. It would be an entire departure and an independent journey. "Not every deviation of the servant from the strict execution of his duty, nor every disregard of particular instructions, will be such an interruption of the course of the master’s business .... so that the servant may be said to be ‘on a frolic of his own,’ the master is no longer answerable for his servant’s conduct: Pol. Torts, page 76. In cases of deviation the authorities are clearly. to the effect that a mere deviation by the servant from the strict course of his duty, even for a purpose of his own, will not be such a deviation from.the master’s business as to relieve him from responsibility:” Ritchie v. Waller, 63 Conn. 155.
The assignment of error is overruled and the judgment affirmed at the cost of the appellant.