60 Pa. Super. 73 | Pa. Super. Ct. | 1915
Lead Opinion
Opinion by
On the day of the accident the defendant and the chauffeur were out for a ride and on their return to the defendant’s home, when the car was about to be taken back to the garage, the chauffeur, not regularly employed as such, requested the defendant to lend him the car to go for his family, some four miles away. The permission having been granted, on the return trip with his family he struck and injured the plaintiff. Not noticing the accident at the time, as it was very dark, he continued his journey to his home and when he was about to put the car in the garage, which was on his premises, his attention was directed to the condition of one of the headlights, from which he judged he had collided with some obstacle on his journey. He spoke to
As indicated in Blaker et al. v. Electric Co., ante, p. 56, the test, in cases where the servant uses a car, is the scope of his employment. In that case we said that the chauffeur was not acting within the scope of his employment when he was using the machine for his own pleasure or business, and therefore the owner was not liable for the injury caused by the chauffeur’s negligent operation of the machine. In the case at bar the journey was taken by the chauffeur, with the permission of the master, on an errand solely for the benefit of the chauffeur. The fact that permission was given would not alter the rule as to .the master’s liability. The ownership of the car would not make the master liable: Lotz v. Hanlon, 217 Pa. 339. Where the master lends his servant to another to be engaged in the business of other persons, subject to their directions and control, the servant becomes a servant of the new master though he is paid by the old master: Rourke v. White Moss Colliery Co., L. R. 2 C. P. Div. 205. As an aid in determining whether, in doing a particular act, he is the servant of the master, the general inquiry is: “Was the act done in business of which the master is in control as a proprietor, so that he can at any time. stop or continue it, and determine the way in which it
The lending of the car to the chauffeur is a species of bailment without compensation. It is similar to the hiring and lending of horses and carriages. When a servant procures the loan of an animal from the master, the relationship of master and servant is for the time being dissolved, and if the servant appropriates the animal during the period of this dissolution he would be prosecuted criminally as a bailee. The analogy between the two classes of facts is very close. While the driver of an automobile must be skilled and licensed, this should not'interfere with the application of the principles which control in the hiring of a vehicle. It needs no citation of authorities to sustain the proposition that, where one hires a carriage and through his negligent driving injury results, he and not the owner is responsible. In the case of hiring the owner receives a compensation for its use and is to some extent benefited by the contract of hiring. In borrowing or lending the owner receives no compensation for its use and is not benefited by the lending of the machine. When the chauffeur asked for permission to take the car for his family, the owner parted with the complete control of the car. The lending was unrestricted by instructions of any sort and unlimited as to time. The services of the chauffeur for the day for which he was' temporarily employed had been completed when the accident happened. He was wholly at liberty from his master’s engagement, pursuing his own business exclusively. The injury was inflicted before the journey upon which he went was completed, as he had not yet arrived at his home. He was in the act of bringing his family home. The lending of the car was not associated
Referring again to the close analogy as to the use of a carriage, attention is called to Bard v. Yahn, 26 Pa. 482. The son was in the employ of his father for wages. A fair was being held near their residence, and the son, for hire, paid to himself, drove certain persons to the fair with a team belonging to his father. The father did not forbid him to take the team or express any disapprobation thereafter. Speaking of it the Supreme Court say: “Elijah was not in his father’s employ when the act complained of was committed. He was neither acting for his father’s benefit, nor by his direction. There was no direct evidence that he took the horses to go to Reading, with his father’s consent. But the consent of the father, even if expressly given, would not have rendered him liable for injuries occasioned by his son’s negligence. If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in nowise responsible for the negligent manner in which the horse may be used. That Elijah was in his father’s employ generally, did not create the relation of master and servant, so that he could not act for himself and be solely responsible for his own negligence. From all the evidence in the case, we are clearly of the opinion that David Wenrich was not liable for his son’s negligence in leaving the horses in the street to the plaintiff’s injury.” In Herlihy v. Smith, supra, the master was not held liable for negligent driving where he had loaned his team to his servant for a short time to do an errand for the servant’s mother.
We do not consider that the act of the master was
All the statements of the chauffeur made at the time the defendant came to the house with him immediately after the accident are statements that could be used without subjecting the defendant to liability. It has been decided that the facts of ownership and that the driver was the owner’s chauffeur do not fix liability: Lotz v. Hanlon, supra. Plaintiff must prove “that the relation of master and servant existed between the defendant and the person in charge of the car at the time of the accident, that the servant was engaged in his master’s business:and was acting within the scope of • his employment at the. time the tortious act was committed, resulting in the injury to the plaintiff. The -servant must not . only be engaged in and about his master’s business,. but must be acting. within the scope of his employment in operating the machine, to impose liability upon the master:” Luckett v. Reighard, 248 Pa. 24. In that case the reason for the chauffeurs. deviation from the direct route did not
The assignment of error is overruled and the judgment •affirmed at the cost of the appellant.
Dissenting Opinion
dissenting:
The plaintiff’s witnesses testified to declarations made by the defendant and by Yolz in his presence; immédi
Granting, however, that the words of the defendant were permissive, rather than directory, it does not necessarily follow that binding directions should have been given for the defendant. When the chauffeur left the defendant at his home, the former would still have been