Summary
In Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 319, 155 So. 209, this Court used this language: "At the most, viewing it in the most favorable light, this was a mere lending of the truck by nonaction on the part of the master to the two employes in order that they might accomplish purposes of their own, not incident, pertinent, or subordinate to their employment.
Summary of this case from Brown v. BondOpinion
No. 30994.
June 5, 1934. ON SUGGESTION OF ERROR.
1. APPEAL AND ERROR.
On reviewing peremptory instruction, everything which evidence established, either directly or by reasonable inference, must be considered as proven against party in whose favor instruction was granted.
2. AUTOMOBILES.
Where uncontradicted evidence showed that truck which collided with plaintiff's automobile was owned by defendant and that defendant's servant drove truck for defendant, defendant had burden to prove that its servant had abandoned duties of employment and gone about some purpose of his own in which defendant's business was not concerned, and which was not incident to employment.
3. AUTOMOBILES.
Where evidence leaves in doubt question whether automobile owner's servant abandoned duties of employment and went about some purpose of his own at time of collision, question is for jury.
4. AUTOMOBILES.
Evidence that truck involved in collision was owned by defendant and was driven by law defendant's servant created presumption that relation of master and servant existed.
5. AUTOMOBILES.
Truck driver employed to deliver truck owner's goods who drove truck to his home for lunch, and on way back departed from direct route to call for another of truck owner's employees, held not engaged in master's business so as to render truck owner liable for injuries and damage resulting when truck, while on way to such other employee's home, collided with automobile.
6. AUTOMOBILES.
Mere lending of one's automobile to another does not create liability of owner to any one injured by negligent driving thereof, though if owner places automobile in hands of incompetent driver, he may or may not be liable according to the circumstances.
APPEAL from Circuit Court of Hinds County.
W.A. Shipman and S.C. Broom, both of Jackson, for appellant.
The court below erred in holding as a matter of law that the servant of the appellee whose negligence is alleged to have been the proximate cause of appellant's alleged injuries, was not in and about appellee's business nor in and about anything incidental thereto, or in furtherance thereof.
Slaughter v. Holsomback, 147 So. 318.
The rule is declared in the Slaughter case that the doctrine of "respondeat superior" is that he who acts through another is himself the actor.
Richie v. Waller, 63 Conn. 155, 38 A.S.R. 361; Barmore v. A. V.R.R. Co., 85 Miss. 426, 38 So. 210; Loper v. Y. M.V.R. Co., 145 So. 745; 39 C.J. 1282; A.L.I. Restatement, Agency, Tent. Draft No. 5, page 53, section 454.
It is perfectly manifest that the question, was the servant engaged about his master's business, or in doing something incidental thereto, vel non, should have been submitted, under proper instructions, to the jury, as any other fact in issue.
Southern Bell Tel. Tel. Co. v. Quick, 149 So. 107; Barmore v. V.S. P. Ry. Co., 85 Miss. 426, 38 So. 210; Slaughter v. Holsomback, 147 So. 318; Ritchie v. Waller, 63 Conn. 155, 38 Am. St. Rep. 361; Loper v. Y. M.V. Ry., 145 So. 743; 39 C.J. 1282; A.L.I. Restatement, Agency, Tent. Draft No. 5, page 53; Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97; Bryan v. Burns, 203 N YS. 634; Pallocco v. Lehigh Ry. Co., 236 N.Y. 110, 140 N.E. 212; Sundines case, 218 Mass. 1, 105 N.E. 433; Erie R. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; Bush v. Sinclair Rooney Co., 201 N.Y.S. 804; Butler v. Hyperion Theatre, 100 Conn. 551, 124 A. 220; Wagnitz v. Shareteg, 89 Cal.App. 511, 265 P. 318; Behrens v. Hawkeye Oil Co., 151 Minn. 478, 187 N.W. 605; Boehmer v. Short, 184 Ark. 672, 43 S.W.2d 541; Kavale v. Morton Salt Co., 329 Ill. 445, 160 N.E. 752; Crowell v. Duncan, 145 Va. 489, 134 S.E. 576; American Piano Co. v. Dackweller, 94 Misc. 712, 160 N.Y.S. 270; Perry v. Haritos, 100 Conn. 476, 124 A. 44; Barney v. Magenis, 241 Mass. 268, 135 N.E. 142; Dennis v. Miller Auto Co., 73 Cal.App. 293, 238 P. 739; Kruse v. White Bros., 81 Cal.App. 86, 253 P. 178; Edwards v. Ernest, 208 Ala. 539, 94 So. 598; Barz v. Fleischman Yeast Co., 308 Mo. 288, 271 S.W. 361; Peterson v. R.R. Co., 265 Mo. 462, 178 S.W. 182; Drake v. Norfolk Steam Laun. Corp., 135 Va. 354, 116 S.E. 668; Loomis v. Hollister, 75 Conn. 718, 56 A. 561; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016; Nord v. W. Mich. Flooring Co., 238 Mich. 669, 214 N.W. 236; Jordan-Stabler Co. v. Taukersly, 146 Md. 454, 126 A. 65; Gulf Refining Co. v. Texarkana, etc., R. Co., 261 S.W. 169; Fleischman Yeast Co. v. Howe, 213 Ky. 110, 280 S.W. 496; Blaker v. Phil. Elec. Co., 60 Pa. Sup. Ct. 56.
Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against the party asking for the peremptory instructions.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 434, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; N.O., etc., R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; N.O. etc., R. Co. v. Martion, 140 Miss. 410, 105 So. 864; St. L., etc., R. Co. v. Nixon et al., 141 Miss. 677, 105 So. 478; Yates v. Houston, 140 Miss. 881, 106 So. 110; Gulf, etc., R. Co. v. Hales, 140 Miss. 829, 105 So. 458.
A vice principal is the representative of the master, for whose acts and negligence the master is responsible.
So. Ry. Co. v. Cheaves, 36 So. 691, 84 Miss. 565; Barron Motor Co. v. Bass, 150 So. 202; Burkard v. A. Leschen Rope Co., 117 S.W. 35; Smith v. Am. Car. Fdy. Co., 99 S.W. 122; Benak v. Paxton, etc., Iron Works, 124 N.W. 461, 85 Neb. 836; Dean v. Brannon, 104 So. 175, 139 Miss. 312.
Where the master delegates to an employee the performance of any duty devolving upon him, such employee stands in his place and becomes a vice principal, and the master is liable for his negligence.
Stearns-Culver L. Co. v. Fowler, 50 So. 680, 58 Fla. 362; Faren v. Sellers, 3 So. 363; Savant v. Goetz, 107 So. 621, 160 La. 916; 39 C.J., page 1297, sec. 1494, and page 1298, sec. 1495, and page 1305, sec. 1503.
Watkins Eager, of Jackson, for appellee.
Even if the employer gives his permission to the use of his automobile by an employee to go to lunch, such use being in no way connected with the business of the employer, he is not liable for the acts of the employee at such time.
2 Berry on Automobiles (6 Ed.), page 1139, par. 1375.
The use by the chauffeur of the owner's vehicle for the purpose of going to and from his place of employment is a use for the purpose of the chauffeur, and the owner is not liable for an injury occasioned while it is being so used, either without his knowledge or consent or with his permission, as, for example, where he is going to or returning from a meal.
42 C.J. 1108, par. 868.
There is not one scintilla of evidence that the driver was using the appellee's truck for any purpose, even remotely, connected with the business of the master.
There was no relationship of master and servant.
Woods v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. Prince Wilds, 133 Miss. 206, 97 So. 558.
The rule is that the mere lender of an automobile is not liable to one who is injured by the negligence of the driver of such automobile.
2 R.C.L. 1201, par. 35; Sharples v. Watson, 157 Miss. 241, 127 So. 779; Smith v. Dauber, 155 Miss. 694, 125 So. 102.
There is absolutely no evidence in this case that Woodson was a reckless and careless driver, and so known to the appellee, although one count of the declaration so alleged. The proof is to the opposite effect.
McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 188, 146 So. 877.
The evidence conclusively showed that the servant was not engaged in the master's business, but upon a mission of his own, and which mission was not incident to the employment for which the servant was hired.
1 Restatement of the Law of Agency, page 508.
The fact that the act is done at an unauthorized place or time or is actuated by a purpose not to serve the master indicates that the act is not within the scope of the employment.
1 Restatement of the Law of Agency, page 513.
An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.
Isaacs v. Prince Wilds, 133 Miss. 206, 97 So. 558; Smith v. Dauber, 155 Miss. 694, 125 So. 102.
ON SUGGESTION OF ERROR.
After a thorough re-examination of this case on suggestion of error, aided by counsel on both sides, we have decided that the suggestion of error should be sustained, the former opinion, reported in 152 So. 642, withdrawn, and this opinion substituted therefor.
Mrs. Bourgeois sued the Mississippi School Supply Company for personal injuries sustained by her and for damages to her automobile caused by a collision with the appellee's truck, and, at the conclusion of the evidence, the court below sustained a motion to exclude the evidence of the plaintiff, and directed a verdict for the defendant. Mrs. Bourgeois appeals therefrom.
John Woodson, a negro employee of the appellee, the Mississippi School Supply Company, drove its truck for the purpose of delivering merchandise for shipment to customers out in the state, and to customers in Jackson. On the day of the accident and prior thereto, he had not delivered any goods, but had worked in the ware room. At noon he took the truck of the appellee from the place where it was kept and drove to his home in the city about one and one-half miles away for the purpose of getting his noon lunch, which the evidence tended to show he did on other occasions, and that the superior officers, agents of the Mississippi School Supply Company, knew that he so used the truck. On this occasion he had no special permission so to do. On leaving the office on the day in question, he had arranged with one of the shipping clerks named Rankin, who lived in West Jackson, to come by his house and take him back to the office after their lunch. Woodson drove the truck to his home, ate lunch, and was proceeding down Mill street in the direction of his place of employment. On reaching Monument street, he made a turn to the west, and had proceeded a short distance on Monument street, when, at the intersection of Bailey avenue and Monument street, the collision occurred between the truck and Mrs. Bourgeois' car. Woodson's home was in Northeast Jackson, east of the Illinois Central Railroad tracks, and the place of the collision was in West Jackson, a short distance from Mill street, which was the direction of the driver's route back to the place where the truck was usually kept and where the business of the appellee was conducted. He had turned west on Monument street for the purpose of going by Rankin's home and taking him back to the office in the truck, thereby deviating from the direct route to his place of work.
It is not shown, by any evidence, that the master in this case had any interest in, or connection with, the manner of its employees going to and from their lunch, and there was no reason adduced in the evidence for their speedy return to the office. The president of the Mississippi School Supply Company, Boyd Campbell, testified that Cade, a shipping clerk, was immediately in charge of the truck driver, and the president's brother, Jim Campbell, was generally in charge of the whole business. Woodson had so accommodated Rankin on other occasions, and it is not shown that the superior officers or the master knew about this. On that day, Rankin went to his lunch in a street car. It was shown that Cade always gave the shipping orders. Woodson was not the only driver of the truck, another drove it on occasions. Woodson was not shown to be an incompetent driver. Rankin, the shipping clerk, sometimes directed the drivers in the matter of shipping and delivering freight. Woodson thought he was not permitted to use the car for the purpose of going to lunch.
The court below excluded the evidence on the theory that, at the time of the injury, the servant was on an independent mission of his own, and had departed from the course of his employment and was acting without its scope. On this question, a peremptory instruction being given, everything which the evidence establishes, either directly or by reasonable inference, must be considered as proven against the party in whose favor the instruction is granted. Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175.
It is established and uncontradicted in this case that the truck which collided with the appellant's car was owned by the Mississippi School Supply Company, an that Woodson was its servant and intrusted with the duty of driving the truck for the purpose of delivering its goods. That being true, the burden of proof devolved upon the master to prove that its servant had abandoned the duties of his employment and gone about some purpose of his own in which the master's business was not concerned, and which was not incident to the employment for which the servant was hired, and if the testimony leaves this question in doubt, it must be submitted to the jury. Barmore v. Vicksburg, etc., R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594, and Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318.
The appellant did not rest upon this presumption, but introduced the president of the company, Boyd Campbell, and the driver of the truck, Woodson, as witnesses in her behalf. By their evidence, it was established that the truck was owned by the appellee, and that Woodson was its servant employed to drive the truck. This created a presumption that the relation of master and servant existed. But the testimony of Campbell and Woodson excluded the idea that, in using the truck to go to his lunch, Woodson was acting in furtherance of his master's business, and this applies as well to the detour to bring Rankin back to the office. It is not shown by the evidence to have been to the interest of the master that these two employees return speedily to the place of employment. It was solely for their purposes and accommodation.
At the most, viewing it in the most favorable light, this was a mere lending of the truck by nonaction on the part of the master to the two employees in order that they might accomplish purposes of their own, not incident, pertinent, or subordinate to their employment. So far as the record discloses, it was no part of, or incident to, their employment.
In A.L.I., "Agency," Comment "D," sec. 229, p. 512, we find this statement: "Going to and from work. If the master supplies a servant with a vehicle in order that the servant may go to or from work, it is important to ascertain whether the vehicle is supplied primarily for the purpose of assisting the master's work, or for the purpose of assisting the employee to perform what is essentially his own job of getting to or from work. The mere fact that the employer supplies a vehicle does not establish that those who avail themselves of it are within the scope of employment while upon it, especially if the use is merely casual. On the other hand, the fact that the master contracts to supply a vehicle, or that the supplying of a means of access to the work is one of the inducements to the employment indicates that the operation of the vehicle is part of the master's work. If employees are required to use a particular vehicle, and particularly if they are paid while in it, it would ordinarily be found that the driver of the vehicle is acting as the employer's servant." On page 513, we find this apt illustration: "P. employs A., who lives two miles from P.'s office. As A. has difficulty in getting to the office on time, he persuaded P. to allow him to use an old car belonging to P. In driving to the office in this car, A. is not in the scope of employment." Also to the same effect are Berry on Automobiles (6 Ed.), sec. 1475, p. 1139, and Blashfield's Cyclopedia of Automobile Law, vol. 2, p. 1414, and 42 C.J., sec. 868, p. 1108.
In the case at bar, the servant did not, in any manner, join the master's business, and we have reached the conclusion that the jury could not so infer from the facts of the case. The mere lending of one's automobile to another does not create liability of the owner to any one injured by the negligent driving thereof. Sharples v. Watson, 157 Miss. 236, 127 So. 779. Of course, this rule is subject to the modification that if the lender knowingly puts his automobile into the hands of an incompetent driver, he may or may not be liable, according to the circumstances.
We are, therefore, of the opinion that the case of Southern Bell Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107, cannot be invoked to apply to the facts of the case at bar. In that case, Stewart, the employee, was engaged in the master's business and was using his automobile in the furtherance thereof. He had orders to go to lunch and to return to the office, and he used the automobile to go to his lunch. His speedy return and the fact that the automobile had never been brought back to the place of storage by the servant rendered the use thereof, at the moment of the injury, in furtherance of the master's business; and the deviation or detour by the servant, in the use of the automobile, under the circumstances, rendered its use by Stewart, at the time of the injury, a question for the jury as to whether or not Stewart was still engaged in his master's business.
We are of the opinion that the court below correctly apprehended and applied the facts in this case to established principles of law, and correctly excluded the evidence and granted the peremptory instruction requested.
The suggestion of error will be sustained and the cause affirmed.