Anderson v. Nagel , 214 Mo. App. 134 ( 1923 )

This is an action for damages arising from a collision of defendant's automobile with plaintiff's automobile on a public road in St. Charles County, on Sunday, August 21, 1921. The cause was tried to a jury. There was a verdict for the plaintiff in the sum of eight hundred dollars, and judgment was given accordingly. Defendant appeals.

The facts so far as material to the decision of the case here are undisputed. Defendant was the owner of the automobile which collided with the plaintiff's automobile. Defendant's automobile was a heavy, highpowered Buick. Plaintiff's, was a new Gardner. The collision occurred on the public road between Black Walnut and St. Charles. Defendant's automobile was being driven by his son, Frank Nagel, who was eighteen years old. Defendant was a farmer and lived in the neighborhood where the collision occurred. He resided on his farm with his family, of which Frank was a member. The Buick car was used in the defendant's business and for the pleasure of himself and family. Frank was the driver of the car when it was used either for business or pleasure. He was permitted to use the car for his own personal purposes. He worked for defendant on the farm, performing such services as he was directed to do by the defendant. He was not at all times in the service of the defendant, but served defendant under his directions and orders in his farm work and other business, in the way that a minor son would be expected to serve his father while living with him as a member of his family. When his services were not required in his father's business, he was at liberty to pursue his own business or pleasure. On the day that the collision in question occurred, defendant directed Frank to go to the home of a neighbor by the name of Carl Chaule, to see about borrowing Mr. Chaule's hay rake to be used on defendant's farm the next day, and directed him to come right back to dinner. Pursuant to these directions, Frank took the defendant's car and drove to Mr. Chaule's home, about twelve o'clock. There is a private lane leading from defendant's home northwest one mile to the public road. The Chaule home is located at the intersection of the private lane with the public road on the right of the lane going northwest. The public road runs from Black Walnut south, thence southwest, thence west to St. Charles. The point where the road turns west towards St. Charles is called the Sandemeyer corner. This corner or turn in the road is about two hundred yards east of the Sandemeyer home and is southwest of the Chaule home. The road runs southwest past the Chaule home to the Sandemeyer corner. Defendant's son drove through the private lane to the public road and turned northeast into the public road and from the public road into Mr. Chaule's yard. He there saw Mr. Chaule and obtained his permission to borrow the hay rake for use on defendant's farm the next day. He then backed out of the yard into the public road and drove up the public road past the intersection of the lane with the public road and past the Sandemeyer home towards St. Charles to a point about three quarters of a mile west of the Sandemeyer home. He then turned around and drove back east past the Sandemeyer home to the Sandemeyer corner or turn in the road, where the collision occurred. His original purpose in driving from the Chaule home towards St. Charles was to go to the Sandemeyer home to find out who was going to play ball at Orchard Farm. On arriving at the Sandemeyer home, he saw several automobiles at the home, and, concluding that the Sandemeyer had company, decided he would not stop at the Sandemeyer home, and then drove three-quarters of a mile past the Sandemeyer home towards St. Charles, found a good place to turn around, and there turned back and started home, and on arriving at the Sandemeyer corner or turn in the road about two hundred yards east of the Sandemeyer home, he met the plaintiff driving in the opposite direction, and the collision occurred. In going from the Chaule home to the Sandemeyer home and three-quarters of a mile beyond, the defendant's son was traveling upon the public road towards St. Charles and in an opposite direction from the defendant's home. After the collision, he drove from the place of the collision northeast to the intersection of the lane with the public road, thence through the lane to the defendant's home.

Frank Nagel, defendant's son, being produced by the defendant, on his examination in chief, testified: "My father sent me over to Mr. Chaule's and told me to come right back; he told me to borrow a hay rake. I went to Mr. Chaule's. I stayed at Mr. Chaule's house about five minutes, maybe ten. When I left there I took right up the road towards St. Charles, about a mile. I went to Sandemeyer's to see about a ball game and I saw three or four cars in there, and I didn't want to bother them, and I went up about three-quarters of a mile, further on up; then I turned around and come back. When I left Mr. Chaule's to go to Sandemeyer's, that was away from home, toward town, away from my house. After I left Mr. Chaule's place and went past the road that leads to my house, I was going further away from home all the time." On cross-examination he testified further: "When I went to Mr. Chaule's I went direct from my father's house to his house. When I left his place I backed out of his premises to the public road to go to Sandemeyer's When I went to Sandemeyer's I went on my own accord. I made up my mind to go to Sandemeyer's to see who was going to play ball at Orchard Farm. I got out in the road and headed towards St. Charles. When I got to Sandemeyer's I saw three or four cars there, so I drove on. When I seen the cars there I went right past then. I didn't stop at Sandemeyer's; I could see from the road what was in the yard; I saw the yard full of cars. When I saw that I formed a different intention and drove on up the road about three-quarters of a mile, found a good place to turn around, I turned around and came back; I was going home. I was on my way home when Anderson ran into me. I guess it's something like two blocks from Chaule's to Sandemeyer's, two or three blocks, I guess, about a block and one-half."

Plaintiff testifying on his own behalf, identified a plat and stated that it was "a pretty accurate map of the road." The plat was introduced in evidence by plaintiff. The plat shows the public road leading from Black Walnut to St. Charles and the lane leading from the Nagel home to the public road. It also indicates the location of the Nagel, Chaule and Sandemeyer homes. The distance from the intersection of the lane with the public road to the Sandemeyer home is not indicated on the plat. Plaintiff testified, however, that the collision occurred about two hundred yards east of the Sandemeyer home, at the turn in the road. Measurement of the lines of the public road as drawn on the plat shows the distance from the point of collision to the intersection of the lane with the public road to be two and one-half times the distance from the Sandemeyer home to the point of collision.

Plaintiff, on direct examination, testified concerning a conversation he had with defendant at his home the next day after the accident, as follows: "Well, his wife says to me, ``I guess I know what you are coming for,' and Mr. Nagel spoke up and said, ``What's that?' He says, ``I sent that kid over to Chaule's to see if I could borrow a rake to rake hay Monday or for tomorrow.' He says, ``I sent that boy down there to see if he could borrow the hay rake.' He says, ``I sent him down there; told him to go down there, that dinner wasn't quite ready; that he could go down there and come back before dinner would be ready; dinner was going to be a little bit late.'" On cross-examination, plaintiff furthere testified, as follows: "I went to Mr. Nagel's house and when I got there he didn't even know there had been an accident. His wife said to him that I had come to see about the accident that Frank had, and then I told him about the accident. Then Mr. Nagel told me he sent his son Frank down to Chaule's to borrow a hay rake, and told him to come right back to dinner, that dinner would be a little late and that it would be ready by the time he got back."

Carl Chaule, produced by plaintiff, testified as follows: "I remember the occasion when Mr. Anderson's car was in a collision there at the corner; it was at the corner towards St. Charles, going west, going to St. Charles. I went out there to see the car after the accident. I saw young Nagel at my house that day; he came to my house and I had a conversation with him. He came there to my house Sunday and asked for the use of my hay rake for Monday, and I told him ``yes.' This was around twenty minutes or a quarter after twelve o'clock. He then went away. It was about twenty minutes or a quarter of an hour after he had been at my house that I learned of the accident. It wasn't very long afterward. When he left he backed out of my lot and went up the road; I looked out of my window and saw him going up the road."

There was evidence to justify the jury in concluding that the collision occurred by reason of the negligence of defendant's son in operating defendant's car.

Defendant demurred to the evidence in the trial court. The demurrer was overruled, and defendant assigns this ruling of the trial court as error. He insists that the undisputed evidence shows that his son was not acting within the scope of his employment at the time the collision occurred. The general rules involved in the solution of the question raised are well settled. But, while the courts have shown great unanimity in the enunciation of the general rules, they have shown great diversity of opinions in the application of the rules to the facts presented in the numerous cases decided. It is stated generally that the master is never liable for injuries occasioned to a third person by the negligence of his servant, unless the servant at the time of the injury was in the execution of the master's business within the scope of his employment.

In Guthrie v. Holmes, 272 Mo. 215, l.c. 241, 198 S.W. 854, our Supreme Court adopted the rule tersely and comprehensively stated by Judge JOHNSON of the Kansas City Court of Appeals, as follows:

"It is elementary that the master is not liable for injuries occasioned to a third person by the negligence of his servant while the latter is acting beyond the scope of his employment for his own purposes, although he may be using the vehicle furnished him by the master with which to perform the ordinary duties of his employment. Where the servant, in carrying out the master's orders, merely deviates on some errand of his own from the strict course of duty, but while thus going extra viam is really engaged in the execution of some duty of his employment, or where he forsakes duty entirely for a time but returns to its path, the master will be liable for his negligence which injures a third person, under the doctrine of respondeatsuperior."

In Ritchie v. Waller, 63 Conn. 155 l.c. 163, the rule was thus stated:

"If the servant in going extra viam 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."

In Storey v. Ashton, L.R. 4 Q.B. Cases 476, it was said that, if the driver of a vehicle "while acting in the master's business were to make a slight deviation to carry some business of his own into effect," or, "if the driver when going on the master's business took a somewhat longer road," to execute some purpose of his own, than he would have taken in the strict performance of his duty, the driver would not on account of such deviation cease to be in the employment of the master so as to divest the latter of all responsibility.

In Patterson v. Kates, 152 F. 481 l.c. 482, the rule is announced in this language:

"If a servant abandons or departs from the business of his master and engages in some matter suggested solely by his own pleasure or convenience, or pursues some object which relates to an end or purpose which may be said to be the servant's individual and exclusive business, and, while so engaged, commits a tort, the master is not answerable, although he was using his master's property, and although the injury could not have been caused without the facilities afforded to the servant by reason of his relations to his master."

In Morier v. St. Paul, Minneapolis and Manitoba Ry. Co.,31 Minn. 351 l.c. 353, it was said:

"If the servant step aside from his master's business, forhowever short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended."

In the case of Ursch v. Heier, 210 Mo. App. 129, 241 S.W. 439, recently decided by this court, the facts are very similar to the facts in this case. In that case the owner of an automobile directed his chaffeur to deliver a box at a cemetery in the city of St. Louis, and the chauffeur did not return from the cemetery and put up the machine in the garage as his duties to the master required, but, taking relatives with him, started in the opposite direction and had gone beyond the city limits into the county upon a personal errand when an accident occurred, inflicting injuries for which the suit was brought. The court held, as a matter of law, that the chauffeur had departed from the scope of his employment, and hence the rule of respondeat superior did not apply, and in so holding the court, after reciting the fact that the chauffeur had started into the county in the opposite direction from which he would go on the master's business, said:

"It is not quite clear how far he had gone into the county, and that does not become the decisive question. The decisive question becomes: Whose business was being done and whose general purpose was promoted at the time by the chauffeur."

Unquestionably the rule is, that, where it appears from the undisputed facts that a servant in charge of his master's automobile, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, the master is not answerable for such tort under the rule ofrespondeat superior, and the court must so adjudge as a matter of law.

In this case, when the defendant's son departed from the errand he was commissioned to perform and passed the intersection of the public road with the lane leading to his home and went up the public road towards St. Charles in the opposite direction from his home in pursuit of his own purposes, there can be no question that he thereby completely abandoned his employment. There was no duty of his employment to be subserved upon this excursion. There was no business of his master to be promoted by going in the opposite direction from that in which his duty as servant required him to go. He was not making a mere incidental detour or deviation on an errand of his own from the strict course of duty, so that while thus goingextra viam he was serving his master while serving himself, as, where a servant to serve some purpose of his own takes a longer road or more circuitous route to reach the place to which his duty as servant requires him to go, than he would have taken had he conformed strictly and exclusively to the duty of his employment.

It is contended, however, by plaintiff's counsel, that, though the defendant's son had completely abandoned his employment, in his journey towards St. Charles in the opposite direction from his home, nevertheless, when he turned back and started on his homeward journey, he had then returned to his employment and was engaged in the execution of his duty to defendant as his servant. The contention, though plausible, cannot be sustained either upon principle or authority. The defendant's son, when he had turned about and started upon his homeward journey, had not then completed the trip upon which he had embarked for his own purposes. He had not then returned, he was but returning, to his employment. He was upon his own trip until he had returned to the point of departure from the path of duty, or to a point where in the performance of his duty, he was required to be. This view is supported by practically all the authorities, and is not out of accord with the decisions of the courts of this State. [Gousse v. Lowe, 41 Cal. App. 715, l.c. 719; Cannon v. Goodyear Tire Rubber Co., 208 Pac. (Utah) 519, l.c. 521; Hartnett v. Gryzmish, 218 Mass. 258 Solomon v. Commonwealth Trust Co., 256 Pa. St, 55; Mitchell v. Crassweller, 13 Com. B. 237; Danforth v. Fisher,75 N.H. 111; Colwell v. Aetna etc. Co., 33 R.I. 531; Reynolds v. Buck, 127 Iowa 601; Riley v. Roach, 168 Mich. 294; Ludberg v. Barghoorn, 73 Wash. 476; St. Louis Ry. Co. v. Harvey, 144 F. 806; Rose v. Balfe, 223 N.Y. 481; Fleischner v. Durgin,207 Mass. 435; Reilly v. Connable, 214 N.Y. 586.]

The industry of counsel has brought to our attention numerous authorities upon the vexed question here involved. We have read them all with the utmost fidelity, and, after having done so, we are constrained to hold that the learned trial judge erred in refusing defendant's demurrer to the evidence.

The Commissioner, therefore, recommends that the judgment of the circuit court be reversed.