191 Mo. App. 105 | Mo. Ct. App. | 1915
Plaintiff’s action is for personal injury received in a collision between a hearse on which he was riding and defendant’s automobile. The judgment in the trial court was for plaintiff.
It appears that defendant had a chauffeur in his employ who drove the machine for him. That on Sunday morning the chauffeur drove him and his wife to church near Tenth and Harrison streets, Kansas City, Missouri, arriving there at eleven o ’clock. Before
There was ample evidence to take the case to the jury bn the question of negligence on the part of the driver of defendant’s machine in colliding with the hearse, unless it be that the driver, at the time of the collision was Sweeny and that defendant would not. be liable for his conduct, a phase of the case we will refer to again. We will therefore pass to the important question whether the chauffeur was engaged in the line of his employment in defendant’s service at the time the injury was inflicted upon plaintiff. First, we have testimony in defendant’s behalf that the chauffeur had orders from him to run the machine carefully and not to allow anyone else to operate it. We will assume this to be a fact; but state the law that mere orders to the servant will not absolve the master from liability for the servant’s acts. If it did, it would be a simple process for employers to rid themselves of all responsibility for the conduct of their agents. The question is not what orders did the master give as to his conduct, but whether the servant was engaged in per
There is this apt statement in an English case quoted with approval in Garetzen v. Duenckel, 50 Mo. l. c. 108: “When a servant quits sight of the object for which he is employed, and, without having in view his' master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him.” [Italics ours.] If we insert the word “business” in place of “malice,” we connect the statement directly with the present question. Now in this case, the chauffeur had not “quit sight” of defendant’s business and “without having in view,” his orders, gone off on business of his own. He bad defendant’s directions in mind all the while and was executing them; only going a round-about way to do so. Certainly, when he was on his return, on his way to the Commerce Building, as he was at the time of the collision, he bad his orders in view and was performing them. He was in the very act of going after defendant’s son. If he was not in defendant’s service then, it has not been suggested how close he should have gotten to the Commerce Building before he would have been considered in such service.
But it is insisted, that at the time of the collision, Sweeny was running the machine, the chauffeur, as we have seen, having permitted him to take charge of the steering wheel, he sitting beside him. At the trial the parties seemed to consider it was necessary to show that at the time of the collision, the chauffeur was driving. In view of the evidence we think that is a matter of no consequence or importance. When the chauffeur let Sweeny take the wheel, he remaining on the seat beside him, Sweeny’s acts, practically speaking, were his, and his act in turning the wheel over to Sweeny was the act of defendant, for it was done in the defendant’s service and while carrying out the chauffeur’s
In James v. Muehlebach, 34 Mo. App. 512, 518, we said that, “If a servant in charge of his master’s carriage should take a stranger with him into the driver’s seat, hand him the reins and tell him to drive at a run and an injury happen in consequence of the speed, the master must answer for the damage, for the negligence was that of his servant.
‘ ‘ But not so if the servant had quit the carriage and substituted the stranger in charge, generally, in his stead, without the knowledge of the master. For if an injury happen it is not the act of the servant for whom only is the master liable. In Booth v. Mister, 7 Carr. & P. 66, a servant in charge of his master’s cart gave over the reins to one in the cart with him, an injury happening- in consequence of the negligent driving, the master was made to respond.
“Lord Abinger said, ‘As the defendant’s servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself.’ ” That statement of the law is supported by Hollidge v. Duncan, 199 Mass. 121; Thyssen v. Ice Co., 134 Iowa, 749; Campbell v. Trimble, 75 Tex. 270, 272; Wellman v. Miner, 44 N. Y. Supp. 417; Bamberg v. International Ry., 103 N. Y. Supp. 297; Kilroy v. D. & H. C. Co., 121 N. Y. 22; Bk. of Cal. v. W. U. Tel Co., 52 Cal. 280, 290.
What we have said disposes of the question as to the propriety of the court’s actions on the instructions refused for defendant. We think there was no error in the instance of the court’s ruling on objections to the evidence; nor was there any error on the part of the court in remarks objected to as being a comment on the evidence. Nor do we think, in view of the evidence, that the verdict for $2500' was excessive.