177 Mo. App. 130 | Mo. Ct. App. | 1914
Plaintiff’s action is for personal injury received in a collision with, defendant’s automobile which was being driven by his chauffeur. The judgment in the trial court was for the plaintiff.
It appears that defendant was. the owner of an automobile car, and that he had a man named Hettenbaugh in charge of it as chauffeur and repairer, and that he kept it in a garage at his residence in Kansas City. Hettenbaugh did not live with defendant, but had a home of his own more than a mile away. On the
It appears that after taking’ these friends as ordered, he did not proceed directly home to the garage. He was shown to be at various places until at about 7:30 p. m. he ran over the plaintiff at Nineteenth and Grand avenue; and finally had a head end collision with a machine on the southern outskirts of the city. It is insisted by defendant that as a matter of law the chauffeur was not acting in the scope of his employment when he ran over plaintiff. We think this insistence is not sustained by law or fact and that this case was properly left to the jury. This is the substance of the testimony of the chauffeur as to his whereabouts: After stating that he left one of defendant’s friends by the way, he left the other at the Baltimore Hotel and then drove over to the office building in which was the Pioneer Trust Company and of which defendant was an officer and waited for his pay check until 3:30. He then went two or more blocks to a laundry office for his collars. He then drove by a saloon on his way to Thirty-fourth and Broadway (a distance between twenty-five and thirty blocks) to the public garage kept by the agentsi for his make of machine, for the purpose of getting advice from Rogers, an expert, concerning the overhauling of the machine, as had been directed by defendant. Rogers got in and they drove around to determine what the machine needed. He returned Rogers to the garage and, his
Rogers’s testimony tended to show that Hettenbaugh and he got a drink of liquor at Westport when on their first drive and at fifteenth street and Grand avenue when he was being taken home. Whether Hettenbaugh had liquor with him at this time is not clear, but it is certain, that after he left Rogers, and started home to put up the machine he became so- far under the influence of liquor as to be drunk. It was at this time, which must have been about seven o’clock, when he was getting near defendant’s home, that he missed his keys and couldn’t think “whether he left them at one place or another;” and he “went back to the garage” and looked for them. Manifestly, he went back to the garage at Thirty-fourth and Broadway where he had been to consult Rogers and where he had gotten out of the machine.
We have had two purposes in this recitation of matters which the evidence tended to prove. One, to meet defendant’s point that Hettenbaugh, as a matter of law, was not engaged in the course of his employment in thus going; about after he left defendant at
On the first proposition, Hettenbaugh’s: employment was to take the machine back from the station to defendant’s home and put it away, and to consult as to repairs with Rogers at the garage. If he had gone directly home and on the way had carelessly run over a pedestrian, no serious question could have been raised as to the course of his employment. But because there was delay in his reaching home, and because he went to other places and stopped on the way and took drinks of liquor, it is said, in effect, his course of employment ceased. That is little short of a statement that so long as an employee keeps within the orders of his employer he is in line of his employment, but so soon as he violates an order he is out of it. That would come néar meaning that no liability would be incurred by an employer for the wrong of his servant unless he ordered him to commit the wrong. It was a part of the chauffeur’s service to take the machine home and that he was slow about it, or went in indirect ways does not alter the matter so long as he was in pursuit of that object. So it was a part of his service to take the advice of Rogers as to repairs and the same remark will apply to going to see him. As we have said, there was evidence tending to prove (and since the verdict we must look alone to
There was evidence tending to show that bottles of liquor were found in the machine and that other persons, women and men, were seen in it; and this leads defendant to say that his chauffeur was bent on his own pleasure in what has grown to be known as “joy riding.” Maybe he was disregarding his duty to defendant, certainly he was in running over plaintiff, but that is no defense, so long as he was prosecuting defendant’s business in getting the car home. If an employer puts an engineer in the cab' of a steam •engine, or a driver at the wheel of an automobile and starts him out with either of these agencies, he is responsible for what that servant does in the way of negligence in running it for the purpose directed. It is no excuse for the employer to say he became intoxicated and I ordered him to keep sober, or that he drove fast when I directed him to go slowly, or that he went an indirect way when I required that he go directly; provided, of course, he is engaged in accomplishing the service he set out to perform. .
We recognize it as law that the owner of a machine would not be liable for the chauffeur’s conduct if the latter took the machine without the owner’s knowledge and went “on a frolic of his own,” alone or with others. Nor are we unmindful'that a servant may start in a matter as the servant of an employer and then abandon his service. Thus he may conceive the notion of stealing the owner’s machine and in his effort to escape with it, he may injure another. In that case there would not be liability. Or while in the scope of his employment, he may injure a' person and then, as in this case, speed away to escape arrest or
But there was evidence tending to show that there was no abandonment of service by Hettenbaugh in this case, until after plaintiff’s injury. His double effort to consult with Rogers and to get the car. home was continuous, so far as is shown, unless it be when he was taking Rogers home. And allowing that it ceased then it was undoubtedly resumed so far as. getting the car home was concerned, when he left Rogers. [Varneman v. Laundry Co., 166 Mo. App. 685, 692.]
Defendant has -cited us to McCarthy v. Timmons, 178 Mass. 378; Lotz v. Hanlon, 217 Pa. 389; Steffen v. McNaughton, 112 Wis. 49; Danforth v. Fischer, 75 N. H. 111, and Colwell v. Aetna Bottle Co., 33 R. I. 531. Except the first, neither of these is in point. In Lotz v. Hanlon the owner of the automobile was absent from the country and the chauffeur, without leave, took a specially invited party of friends, for a pleasure ride, when he ran a man down in the street. He had in mind to stop at a store to get some machine supplies, but these were merely incidental and for his own convenience, and he had never been allowed to go there in the machine. That case, of course, is nothing like this. Steffen v. McNaughton was where the chauffeur lived apart from the owner and his employment did not include the time he went to his meals. He walked to his meals except a few times he took the machine without the owner’s knowledge. At one of these times he ran over a woman in the street and it was held that, not being then in the owner’s service or working in the course of his employment, the owner was not liable. That case has no facts in common with this. In Danforth v. Fisher, the chauffeur was awaiting the owner at his store. The owner directed him to go to his boarding house for his supper and
But we concede that in the first of these cases the Supreme ■ Court of Massachusetts supports defendant’s view. There the defendant’s carriage team ran away and collided with the plaintiff’s wagon. One Scott was plaintiff’s driver and his. business was to stand with the team near the corner of a street in Boston and solicit passengers. About six o’clock on the afternoon of the accident, he was directed by the superintendent to take the team to the owner’s stable, distant about a mile and a half. Scott started but did not go by the most direct route and on his way went into a saloon to get a drink of whiskey, leaving his team unhitched. He was gone about three minutes, but in that time his horses became frightened and ran away, colliding with a wagon and injuring the occupant. It was held the master was not liable. In view of the fact that Scott was taking the team to the stable in obedience to orders and was on his way, we cannot reconcile that case with our conception of the law.
Afterwards a case very much like McCarthy v. Timmons came before that court (Hays v. Wilkins, 194 Mass. 223) in which it seems to us. that an entirely opposing view was taken. There the driver after having completed his day’s work was on his way with his
There seems abundant authority to support the views we have expressed in favor of plaintiff’s case. The following rule is stated in Richie v. Waller, 63 Conn. 155: “In cases of deviation the authorities are clearly to the effect that a mere departure by the servant from the strict course of his duty, even for a purpose of his own, will not in and of itself be such a departure from the master’s business as to relieve him of responsibility.” And “if the servant in going extra viarn is really engaged in the execution of the master’s business within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own. Thus in Patten v. Rea, 2 Com. Bench (N. S.), 605, the servant started out on business of the master, and also to see a doctor on his. own account. While on his way to see the doctor he negligently drove against a horse and killed it, and the master was held responsible.”
The facts in that case were that a farmer had twice a week, for some years, gotten manure for his farm from a brewery in a near by city. He hired a farm laborer and went with him with a team and
Interesting instances arising in other cases are referred to in that case. Thus in Sleath v. Wilson, 9 Car. & Payne, 607, the master was held liable for the negligent act of his servant, who, after having set the master down, drove around to deliver a parcel of his own and did not drive directly where he.had been ordered to go. In Whatman v. Pearson, L. R. 3 Com. Pleas, 422, the servant with the horse and cart of the master, contrary to express orders went a quarter of a mile out of his way purely for a purpose of his own, and the master was held responsible. In Mitchell v. Crassweller, 13 Com. Bench, 237, the master was said to be “liable even though the servant in the performance of his duty is guilty of a deviation, or a failure to perform it in the strictest and most convenient manner. ’ ’
In Quinn v. Power, 87 N. Y. 535, a boatman requested the pilot of a ferry boat to be put aboard of a canal boat out in the stream. The pilot, without compensation, and in mere good nature consented, and in doing so diverged from his usual course in crossing and collided with another boat. The owner of the ferry was held liable. The defense was that the servants on the ferry were not acting within the scope of their employment. Of this the court said: “We do
“When this ferry boat left the dock at Athens it started for its terminus at Hudson. It took freight and passengers to transfer across the river. Servants and boat, as the latter moved out into the river, were doing the master ’& business and acting both in the line of duty and of employment. There was a usual track or route by which the boat crossed. It may even have been selected and dictated by the owner. In deviating from it the servants might disregard the instructions of the master, but they were none the less engaged in the master’s business of transporting passengers from Athens to Hudson because they did not follow the usual route, or pursued another or even a forbidden track. They were still doing their employer’s work, though in a manner contrary to his instructions. If they stopped the boat in the middle of the river they did not cease to be engaged in the master’s business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way and manner to subserve also such purpose. When they took this passenger to the tow, and in so doing deviated from the usual route, and stopped the boat midriver for that reason, they were still engaged in the master’s' business of transporting freight and passengers across the river. They were doing it in a mode and manner perhaps not authorized, and possibly, in some sense, to effect a purpose of their own, but none the less acting within the scope of their employment and engaged in the master’s business.”
In this State the rule that a deviation from the usual manner of service for the individual purpose of the servant will relieve the master, does not obtain. The test here is whether the servant is, at the time of
So after all, as stated in Evans v. Dyke Automobile Co. and Ritchie v. Waller, supra, the question is one of fact. The facts may occasionally appear so clearly as to justify the court in declaring on them as a matter of law; but oftener they are matters of sharp dispute and very difficult of solution.
In thus stating our conclusion we have not passed unnoticed defendant’s suggestions upon the burden of proof, presumptions, etc. Our position on the sufficiency of the evidence to uphold the verdict is based on the whole record giving plaintiff, as we must, the benefit of everything, including reasonable inferences', which tend to support it. The criticism we have of defendant’s position is that it is largely drawn from evidence in his favor. After verdict, so long as any substantial evidence is found in plaintiff’s favor, it is of little concern'what defendant may have shown.
During the trial defendant offered to prove that the chauffeur had stated that afternoon that defendant was out of town and that he was going to use the automobile for his own purposes, pleasure and convenience. This offer was properly refused. The evidence was hearsay and no condition, or situation, existed justifying its admission under any exception to the rule excluding that class of evidence. The chauffeur was a witness' for defendant at the trial. It seems singular that if defendant thought such evidence proper he did not examine him on the subject. It has been ruled from necessity,. in some instances, where a conspiracy, plan or design was in question, that what one said was admissible. Generally, when this is a person other than the party litigant, and his design is under investigation, he is dead or not to be
In State v. Levy, 90 Mo. App. l. c. 646, it is said that: £ £ Our law does, indeed, define some exceptional circumstances which raise hearsay to the rank of admissible evidence. Those exceptions- are vindicated by necessity, or by reasons of public policy. ’ ’
In Truesdail v. Sanderson, 33 Mo. 532, the Supreme Court said: “The court below properly excluded Fields ’ testimony of statements made by Myerson. They were hearsay merely, and nothing is shown to justify their introduction. For anything that appears in the record, Myers on was himself a competent and available witness. It was proper to exclude testimony by another of his statements.”
In the-case of Wood v. Hicks, 36 Mo. 326, the Supreme Court held that the statements made by one who was himself a competent witness were not admissible in evidence.
. In Langsdorf v. Rosenstein, 36 Mo. 440, the Supreme Court held that the statements of one who was a competent witness at the trial were hearsay and not admissible in evidence.
Objections made to exclusions of offer of proof by Rogers of what his object was in getting in the car and going home'are of no importance, since it clearly appeared from the undisputed evidence that he took Rogers home and we have assumed, for the purposes of our decision, that in doing so he was, for that time, not in defendant’s service.
Objection was made to plaintiff’s instruction informing the jury that if they believed- the chauffeur was at the moment of injuring plaintiff in the employ of defendant for the purpose of operating the machine that those facts were sufficient to raise a presumption
As the effect of this instruction was to say to the jury that however deficient the evidence is in which the scope and course of employment has been endeavored to be proven, you may still find for plaintiff on the presumption that such scope included passing the place of the accident at the time it happened.
For error in giving that instruction, the judgment is reversed and the cause remanded.
