Howard v. Marshall Motor Co., 22,643 (Kan. 5-8-1920)

106 Kan. 775 | Kan. | 1920

Lead Opinion

The opinion of the court was delivered by Lemuel Miller, a porter in the employ of two motor companies at their garage and salesroom, was driving an automobile along the street at a speed estimated at from thirty-five to fifty miles an hour, when he ran into another car on a cross street with such violence as to drive it upon the sidewalk, injuring Fannie Howard, who was standing there. She brought action against the companies and obtained a judgment against them, from which they appeal.

1. They contend that the evidence did not warrant a finding that at the time of the injury Miller was engaged in the services of his employers, but on the other hand showed conclusively that he was driving for his own pleasure. Miller as a witness for the plaintiff gave evidence tending to show these facts:

He was called the head porter. His duties included washing and cleaning cars, delivering them, and demonstrating cars — doing the driving. When the general manager of the companies wanted a man for work around the garage Miller would bring one to him. On the day of the accident Miller backed a car out of the garage to let another one through, and while he was still in the car (which belonged to a customer) the manager told him to go and find a suitable porter and put him to work washing a car which was then on the rack. Without getting out of the car he drove several blocks to a barber shop where he thought he could find two men that he had in view for the purpose.

He was not asked whether he found either of the men for whom he was looking, and his testimony did not specifically cover that point. It might be inferred, however, that they were not there, for he testified that after going to the barber shop he started back to the garage and was on the way there when the collision took place.

Much of this evidence was contradicted, but that of course is not now material. If the jury credited it, and that must be assumed, the conclusion was justified that Miller at the time of the accident was driving the car while upon an errand for his employers — while returning to the garage after having made the trip upon which he had gone in their behalf. In that situation there can be no doubt of the liability of the defendants for the consequences of his negligent driving.

The defendants introduced evidence, which the jury by their special findings showed that they believed, that as Miller turned his car near the barber shop he saw a friend who, at his invitation to go on a spin with him, got into the car and accompanied him on the remainder of the trip, the accident occurring on a direct route to the defendant's place of business.

In returning with the car to the garage Miller was as much in his employers' service as while he was on the outbound part of the journey. (Thompson v. Machinery Co., 96 Kan. 259, 150 P. 640.) And the fact that he took a friend on board to enjoy with him the pleasure of a run in violation of the speed limit does not affect the legal aspect of the matter. He was of course disregarding his duty to his employer in the way he managed the car, but his misconduct was in doing in a wrongful manner what he was employed to do properly — he was acting within the scope of his employment. The case is well within the rule illustrated by Robertsv. Kinley, 89 Kan. 885, 132 P. 1180, and the facts are obviously quite different from those on which the decision was based in Toadvine v.Sinnett, 104 Kan. 111, 178 P. 401. If there had been a deviation from the direct line of travel on a return to the garage, the defendants' liability might have been affected according to the particular circumstances (Note, 17 N. C.C.A. 659; 4 N. C.C.A. 27), but under the evidence and the findings there was none. Miller's asking and allowing a friend to ride with him, such conduct not having been forbidden and not having been the cause of the accident, could obviously not affect the liability of the defendants. Even where an agent sent in an automobile on an errand for his principal takes in a guest for whose accommodation he deviates from the direct route, it has been held that his employer may be liable for the results of his negligent driving. (Note, 17 N. C.C.A. 663-665.)

2. The plaintiff's attorney was permitted over objection to ask a juror on his voir dire whether he was a stockholder in any corporation and whether he was a policyholder in any mutual insurance company which had for its purpose the insuring of persons against actions for damages arising by virtue of accidents. The defendants complain of this on the ground that the questions were not asked for the purpose of developing any information concerning the juror that might tend to suggest a bias on his part, but solely to lead the jury to infer that if a judgment were rendered for the plaintiff the loss would ultimately fall, not upon the defendants, but upon some insurance company. The trial court must be deemed to have decided that the questions were asked in good faith, and as its opportunity for forming a judgment on that matter was better than ours, its determination must control, there being nothing in the record that compels a contrary conclusion. (Swift v. Platte, 68 Kan. 10, 74 P. 635.)

The judgment is affirmed.

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Concurrence Opinion

While I agree with the foregoing, I am unable to see why the courts, in respect to a defendant's indemnity, should ever feel called upon to "walk softly like the gods whose feet are shod with wool," or why any impenetrable obscuration should envelop so simple and so common a situation.

Why should not the jury know who the real party in interest is, the same as they may know who is putting up the security for costs or who is paying the expenses of a witness?

To invest the fact of the defendants' insurance with the sanctimonious camouflage of a manufactured reverence is to my mind the superlative quintessence of judicial ineptitude.