236 P. 1082 | Mont. | 1925
Ownership of an automobile and the owner's consent to its use by another do not impose liability upon such owner for injuries caused by its operation (Clawson v. Schroeder,
2. As to who is responsible for negligence of chauffeur operating a leased or demonstrating car, see notes in Ann. Cas.
1916A, 673; 40 L.R.A. (n.s.) 457; 44 L.R.A. (n.s.) 113; 51L.R.A. (n.s.) 1164. As to who is responsible for injury by car during demonstration or instruction by dealer, see note in 20 A.L.R.
194. *356
it be assumed that his original possession and use of the car was with the knowledge of appellants and for their business ends, this clear departure therefrom exonerates appellants from any liability for his negligent actions. (Fleischner v. Durgin,
The master is liable for any acts of negligence of which a servant may be guilty in managing or operating an automobile or other vehicle, after the personal affairs which constituted the object of his deviation have been disposed of, and he has begun to return to his master's premises, or to the point where he took his departure from the prescribed route, or has returned to the business of his master, or has again entered upon the discharge of his duties. (Donohue v. Vorenberg,
The defendant Gleason filed an answer in which he denied the allegations of paragraph 3 above quoted, and likewise denied all the charges of negligence made against him in the complaint. The defendants Delovage filed a separate answer, in which they admitted their ownership of the Cadillac automobile, but denied that Gleason was acting as either their agent or servant or under any authority from either of them at the time of the collision of the two automobiles, and alleged that Gleason was driving the Cadillac automobile without their knowledge, authority, or consent, but that he was so driving the same solely and only as a trespasser, and without any right or authority so to do from any person or persons whomsoever.
The case was tried before a jury. At the close of all of the testimony the defendants Delovage made a motion for a directed verdict, which was denied. The jury returned a verdict in favor of the plaintiff and against all the defendants, upon which a judgment was duly rendered and entered. The defendants Delovage made a motion for a new trial, which was overruled, and they have appealed from the judgment. Defendant Gleason did not move for a new trial, and has not appealed.
The respondent has made a motion to dismiss the appeal. This motion has been considered and found to be without merit, and is overruled. *359
In their brief filed in this court appellants concede that defendant Gleason in driving the automobile at the time of the collision was negligent, as alleged in the complaint.
"It is well settled that, even though the driver of a car is a[1] servant of the owner of the car, the owner is not liable, unless, at the time of the accident, the driver was acting within the scope of his authority and in regard to his master's business." (Stumpf v. Montgomery,
Accepting the statements of Susser and Binder as being true, they merely show that Gleason was made the agent of the appellants for a particular act or transaction; namely, to take the automobile to Dr. McCarthy's for a demonstration and then take it to the Broadway Garage. This constituted him a special agent. (Sec. 7930, Rev. Codes 1921.) He was not in the general employment of the appellants, and his connection with their business, if any, was only to the extent indicated by the above statements. *360
There are three assignments of error, but in our view it is[3] only necessary to consider one of them, namely, whether the court erred in denying appellants' motion for a directed verdict, and this raises the question of the sufficiency of the evidence to sustain the verdict and judgment against the appellants.
The basis of appellants' motion for a directed verdict was that the evidence wholly failed to show that at the time of the occurrence of the accident made the basis of the suit the defendant Gleason was driving the automobile of the appellants in furtherance of any business of them or either of them.
There was a sharp conflict in the evidence as to the manner in which defendant Gleason came into possession of appellants' automobile on the evening of the accident, but, accepting the plaintiff's version as being correct, it placed him in its possession, at about 6:30 P.M., starting to drive west on Park Street, but it did not show where he went or what he was doing from that time until about 9 o'clock P.M., or two and one-half hours later. The law would not indulge in the presumption that during that period of time he was furthering the business of the appellants. This fact would have to be established by evidence.
Even though Gleason were following the instructions alleged to have been given to him by the appellant Abe Delovage during the first hour of this period, and was then in fact demonstrating the automobile to Dr. McCarthy, when he had concluded his task in that connection it was his duty forthwith to deliver the possession of the automobile to the appellants by returning it to the Broadway Garage, where, according to the evidence, they kept it. That was his final duty to appellants. This duty he did not perform. On the contrary, the undisputed evidence introduced on the part of the appellants showed that at 7:30 or 7:40 o'clock P.M. Gleason was in the automobile driving to Three Mile, making a round trip of six miles for his own purposes; that returning from Three Mile, soon after 8 *361 o'clock, he had the automobile at 444 West Broadway, where he took in two friends, and at about 8:10 or 8:15 o'clock started for Nissler, distant five and one-half miles, making a round trip of eleven miles which trip was likewise for his own purposes, and not in any way connected with the business of the appellants; that he returned from this trip to 444 West Broadway shortly before 9 o'clock, from which point he proceeded to take the automobile back to the garage, and had driven east to a point distant about one city block from it when the collision occurred.
Keeping in mind the fact that Gleason was not in the general employment of the appellants, but was only their agent or servant for a particular act or transaction, when he took the automobile on his joy ride to Three Miles and Nissler, a trip of more than seventeen miles, he wholly abandoned the business of appellants, the relation of master and servant ceased to exist between them, and the doctrine of respondeat superior had no further application. From the time Gleason started on his trip to Three Miles his possession of the car was wrongful, as much so as though he had in fact returned it to appellants at the Broadway Garage and then taken it out again without their knowledge or consent.
This case does not present the situation of a mere disobedience of the master's instruction, or one where there has been a slight deviation from the master's business for the personal purposes of the servant, and the rules governing such situations have no application here.
It is true Gleason testified that, when the collision occurred, he was returning the automobile to the Broadway Garage, and on this statement counsel for respondent predicate their argument that he was then engaged in the business of the appellants. But this is not the fact. At least an hour before starting to return the automobile to the garage he had wholly abandoned the appellants' business for purposes of his own, and during that time was wrongfully in its possession. His possession *362 during that time was not that of a servant of appellants, but as a wrongdoer. He had no more right to its possession during that time than as though he had originally stolen it.
In the case of Cannon v. Goodyear Tire Rubber Co.,
Since the evidence wholly failed to sustain the plaintiff's contention that at the time of the collision the defendant Gleason was engaged in the performance of any business for the appellants as their servant, agent or employee their motion for a directed verdict should have been sustained. *363
Upon the undisputed facts disclosed in the evidence the plaintiff is not entitled to recover anything from the appellants, for which reason a new trial of the action is not necessary.
The judgment is reversed as to the appellants and the cause remanded to the district court, with direction to dismiss the complaint as to them.
Reversed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY, GALEN and MATTHEWS concur.
Rehearing denied June 10, 1925.