Loomis v. Hollister , 75 Conn. 718 ( 1903 )

When the accident occurred Beebe had been the servant of the defendant for some two months, and his duties as such included the daily use of his master's horses and cart for the delivery of ice. For this purpose he was directed to take the team each morning from his master's stables, proceed to the route assigned him, deliver the ice as needed, and return to the stables. While thus engaged, from the start in the morning to the return and stabling of the horses, his care and management of the team so intrusted to him would be in the execution of his master's business within the scope of his authority. While returning to the stables on the day in question, he reached the corner of a parallelogram enclosed by four streets. Instead of following the street leading directly to the stables, he drove through the streets bounding the parallelogram on the other three sides. This detour was nearly half a mile longer than his direct course, and was made for the purpose of passing the post-office on his return to the stables, in order to stop there and get a newspaper for himself. When he was first employed, Beebe was instructed as to the specific route he should follow, and his return to the stables by the post-office was in violation of those instructions. Was Beebe, in driving and managing his master's team during the time occupied by this detour, in the execution of the master's business within the scope of his employment? This question the trial court left to the jury as one of fact, to be determined by them from all the evidence concerning the transaction. This action of the court is not complained of. The only contention of the defendant is, that the language used by the court in submitting the question to the jury does not fully and fairly show the relation between the fact to be determined and the law governing the liability of the defendant, and was calculated to confuse and mislead the jury.

A person guilty of negligence which causes injury to another may be liable to pay the injured party damages. He may also be liable if the acts of negligence are not done by himself personally but by another acting under his express direction; such liability for the negligent acts of another is controlled by the general law of agency. But the law goes further than this, and makes a master liable for acts of negligence done by his servant, although such acts are unauthorized, or even contrary to instructions, when the negligent acts are done in the execution of the master's business for which the servant has been employed. This law is based on a rule of public policy, which declares that substantial justice is on the whole best served by making a master responsible for the injuries caused by his servant acting in his service, when set to work by him for his own benefit. Hearns v.Waterbury Hospital, 66 Conn. 98, 123-126. It is this rule of policy that has established, as applicable to that class of cases to which the one before us belongs, the rule of law, namely: the master is liable for his servant's negligence, if the negligent acts are done in the execution of the master's business within the scope of the servant's employment; and this rule of policy must be kept in mind in determining the meaning of the language used to express the rule of law. That meaning would seem sufficiently clear. As applicable to cases like the present, it may be amplified in this way: where a servant's employment includes the daily or occasional driving, use and management of his master's horses and wagon for the purposes of that employment, and the servant, while thus employed, is guilty of negligence in the management of the team, whether by reason of reckless driving or of recklessly leaving the horses unhitched and unattended, that negligence is done in the execution of his master's business within the scope of his employment; and this is true although the master may have forbidden such negligent acts and although the immediate occasion of the negligence is the accomplishment of some purpose purely personal to the servant, as the overtaking of some one he wishes to speak with on his own business, or stopping to enter a house on an errand of his own, or disobedience of orders as to the precise route he shall follow; that is to say: the servant may be engaged in the execution of his master's business within the scope of his employment, although, in conducting that business, he is negligent, disobedient and unfaithful. On the other hand, if the servant takes his master's team without authority and goes off on an errand of his own, he is not engaged in his master's business and the master is not liable for his negligence. Likewise, when the servant has taken his master's team in pursuance of his employment and, abandoning the purpose for which he started, goes off on some business of his own, he may thus take his master's team into his own possession without authority, for the transaction of his own business, and in such case his acts are not in the execution of his master's business and his master is not liable for his negligence. Such amplifications of the brief statement of the rule are illustrations of its meaning, and may be regarded as propositions of law. Stone v. Hills, 45 Conn. 44-51;Whatman v. Pearson, L. R. 3 Com. Pleas, 422, 425; Joel v.Morrison, 6 Car. Payne, 501, 502; Singer Mfg. Co. v. Rahn,132 U.S. 518, 523. But where it is conceded that a servant is using his master's team within the scope of his employment and that he departs from the instructions of his master for some purpose of his own, and the conflicting claims are made, on the one hand that the departure indicated a disobedient or unfaithful conduct of his master's business, and on the other hand that the departure indicated an abandonment of that business and a taking of the team by the servant without authority and solely for the transaction of his own business, and the circumstances supporting these conflicting claims are of such doubtful import that a trier might, not unreasonably, reach either conclusion, a question of fact is presented which should be determined by the jury in view of the instructions of the court as to the true meaning of the rule of law governing the master's liability in such case. It is claimed that the question of fact submitted to the jury in the present case was of this nature: Under all the circumstances established by the evidence, was Beebe, while driving the horses back to the stables by way of the post-office, engaged in the employment upon which he had started in the morning, or was he in the possession of his master's team without authority for the mere purpose of transacting his own business?

In other words, was Beebe engaged in prosecuting his master's business, although conducting it in a negligent and disobedient manner, or had he abandoned his master's business for the prosecution of his own? We think the court, in submitting this question to the jury, gave a sufficiently full and accurate statement of the law. This portion of the charge is substantially in language used by the court inRitchie v. Waller, 63 Conn. 155, 160-166, where we held, upon a state of facts closely analogous to those presented by this record, that the conclusion of the master's liability, whether treated as one of fact or of law, was clearly correct. In that case the master pointed out to the servant the route to be taken in going and returning upon his master's business, and supposed that the same route would subsequently be followed, but did not specifically instruct him so to do. In the present case the master pointed out to the servant the route to be taken in going and returning upon his business, and instructed him to follow that route in subsequent trips. Whether this distinction is really important or not, the court did charge the jury to consider these instructions in connection with all the other circumstances proved, in determining whether the deviation from the prescribed route was such that it could not be considered as a continuance of the journey on the master's business, but constituted in fact a total departure and separate journey on his own business. To illustrate the complete severance from the master's business involved in the change of a journey commenced on the master's account into a separate journey on the servant's account, the court said that the master would not be liable "where there is not merely a deviation but a total departure from the course of the master's business, so that the servant may be said to be on a frolic of his own." This is an illustration occasionally used by the courts for more than thirty years. The defendant claims that the average juryman is so ignorant or uncultured that the use of this illustration would confuse him and mislead him into believing that the court intended to say that no deviation on business of the servant could become a total departure unless that business were of a hilarious nature. We think the defendant is mistaken; at all events we cannot treat the use of an illustration thus sanctioned as a fatal error.

There was no error in neglecting to charge in the language of the defendant's request; all that the defendant was entitled to was sufficiently stated in the charge as given.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.