192 Mich. 624 | Mich. | 1916
This action was brought to recover damages for an injury to plaintiff’s property, caused by the running of an automobile against the front of his store. The automobile was owned by defendant, and was being driven at the time by one Mclvoy, who was employed by defendant generally as a chauffeur. In the absence of any statute enlarging the responsibility of the owner, defendant’s liability depends upon whether the chauffeur, when the accident occurred, was acting as his servant and within the scope of his employment. The trial judge held that he was not, and directed a verdict against plaintiff.
Defendant lived on Edison avenue in the city of Detroit, and on April 17, 1915, had been driven by the chauffeur at about 8 o’clock that evening, to a
The action of the trial judge in directing a verdict for defendant was warranted by the facts of the case. An automobile is not a “dangerous instrumentality,” in the sense in which that term is used in the law; and the relation between the owner of a car and his chauffeur is determined, in the absence of a statute, by the general rules of law relative to master and servant. Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81). Counsel for appellant cites us to many cases where the owner of the car has^ been
To make the owner liable, under the law of master and servant, the chauffeur must be acting within the scope of his employment. Hartley v. Miller, supra; Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Reilly v. Connable, 214 N. Y. 586 (108 N. E. 853, L. R. A. 1916A, 954, Am. & Eng. Ann. Cas. 1916A, 656); Steffen v. McNaughton, 142 Wis. 49 (124 N. W. 1016, 26 L. R. A. [N. S.] 382, 19 Am. & Eng. Ann. Cas. 1227); Hartnett v. Gryzmish, 218 Mass. 258 (105 N. E. 988); Provo v. Conrad, 130 Minn. 412 (153 N. W. 753); Danforth v. Fisher, 75 N. H. 111 (71 Atl. 535, 21 L. R. A. [N. S.] 93, 139 Am. St. Rep. 670). And “the prase ‘in the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.” Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834). If a chauffeur, or any other servant, commits an injury while doing something relating to his own affairs exclusively, and in no wise connected with
In the instant case the trip of 2% or 3 miles, made by the chauffeur to the home of his father-in-law, had' no relation whatever to defendant’s business. It was, as the chauffeur himself testifies, solely for his own pleasure. And the defendant is no more responsible for what happened than he would have been if the chauffeur had borrowed some other car for the trip.
The chauffeur testified that he had used the car several times to visit his relatives, and, when asked where he kept the car when not in use, he replied, “On the street, out there at either one of my relatives’ places, or in the Cole garage.” What his answer plainly meant was that he left the car standing in the street whenever he used it to call upon his relatives, and not that the street was used as a place for the storage for the car. And the number of times he had so used it is not shown. There certainly was no proof of any express consent by defendant that the chauffeur might use the car to visit his father-in-law, nor do the proofs tend fairly to show any implied consent. But if the testimony had shown an express consent by defendant, it would have amounted but to a loan of the car, and would not have made the trip any part of defendant’s business. This court has held that, when his responsibility is not affected by some statute:
“The owner of a motor vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner’s business.” Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81).
And see, also, Doran v. Thomsen, 74 N. J. Law, 445 (66 Atl. 897).
“The permission of defendant to the chauffeur to use the automobile for purposes personal to the chauffeur, and in which the defendant had no interest, did not make him liable to the plaintiff.”
It is suggested by counsel that the chauffeur, in returning from his father-in-law’s place, must have been acting within the scope of his employment, even if he was not so acting when going out there. And the reason given for the suggestion is that he was returning for the very purpose of keeping his engagement with defendant. But, in fact, no part of the trip, either going or returning, was connected with defendant’s business. It was as much the chauffeur’s affair to get back from Dix avenue as it was to go out there. In both Hartnett v. Gryzmish, supra, and Danforth v. Fisher, supra, the chauffeur had been using the car for his own purposes, and was returning, when the accident occurred, for the express purpose of performing some duty assigned to him by the owner, yet this was not supposed to affect the owner’s liability.
The judgment is affirmed.