Foote v. Grant , 55 Wash. 2d 797 ( 1960 )

Hill, J.

We are concerned with the applicability of the rule of respondeat superior.

The appellants, Dallas W. Foote and Dora Foote, his wife, and Dallas L. Foote and Mazie W. Foote, his wife, sustained personal injuries when the automobile in which they were riding was hit head-on by an automobile belonging to the respondent, J. F. Grant, which was being driven on its wrong side of the road by Oscar John Wernegreen or his sister. Wernegreen had possession of the car by virtue of an agreement to drive it from Chicago to Seattle.

Each of the marital communities sued Wernegreen and Grant for the damages sustained; the cases were consolidated for trial. Wernegreen defaulted, and his negligence was conceded. From a judgment of dismissal, based on the verdict of the jury in favor of Grant, the Footes prosecute this appeal.

The sole issue is the liability of the owner of the car. Such liability, if any, rests on respondeat superior. The owner, a dealer in used cars in Seattle, had acquired the automobile in question in Chicago, and made arrangements for a driveaway service to procure someone who would drive the car to Seattle. The person secured was the defendant Wernegreen, and there is no contention that he was not a capable driver. He signed, and had a copy in his possession of what is termed a “Motor Vehicle Bailment Agreement” which showed the routes he was to travel in driving from Chicago to Seattle. At his specific request the routes had been altered from the direct and shortest routes (U. S. highways No. 10 and No. 12) to include “16-20-99,” because he wanted to go through Yellowstone Park and Portland, Oregon on the way to Seattle.

Leaving Portland, on .what was to have been the last leg of his journey, he was accompanied by his sister (contrary to his agreement which specifically prohibited his carrying any passengers). After traveling north on highway No. 99 to Kelso, he left that highway and pursued a westerly course on a road along the Columbia river to the coast. He then proceeded northerly along the coast highway through Raymond to Aberdeen. Had he turned east at Aberdeen to return to highway No. 99 at Olympia, as he testified he intended to do, we might, by stretching the imagination, have called his side trip to the ocean an alternate route to Seattle and have held the owner of the car liable for any negligence occurring while traveling that route. However, it is an affront to reasonable minds to ask them to believe Wernegreen’s incredible testimony that, traveling without a map and in complete disregard of all highway signs, he could turn west at Aberdeen, proceed through that city, then through Hoquiam, and thence perhaps ten miles northerly to an ocean beach before he realized that he was not on the way to Seattle. From the time he turned west at Aberdeen to go to Hoquiam and the beaches beyond, there can be no doubt that he was on what the cases term “a frolic of his own,” and that he was in no way furthering the interests of his employer, or acting within the scope of his employment. We will hereafter discuss the significance of the fact that Wernegreen and his sister were returning from the beach north of Hoquiam to resume the journey to Seattle, from which they had deviated at Aberdeen, when the collision occurred at a point two and one-half miles north of Hoquiam.

There is much discussion in the briefs as to the effect of the so-called “bailment agreement,” and as to the effect on Grant’s liability, if Wernegreen’s sister was driving at the time of the collision. This seems to us irrelevant. We would concede, arguendo, the strongest possible case for the appellants, i.e., that Wernegreen was an employee of Grant and that Wernegreen’s negligence (or the negligence of his sister), if that negligence occurred while Wernegreen was acting within the scope of his employment or agency or while doing anything that was furthering the interests of his employer or principal, could be imputed to Grant as the owner of the car.

The determinative fact is that the negligence complained of, whether Wernegreen’s or his sister’s, was not the act of anyone engaged in the furtherance of Grant’s interests, i.e., getting the car to Seattle. The principle of respondeat superior was not applicable at the time and place of collision. A necessary element to a cause of action against Grant is, therefore, lacking. See Van Court v. Lodge Cab Co. (1939), 198 Wash. 530, 89 P. (2d) 206.

The rules applicable in cases of this character were discussed by Judge Steinert with his customary thoroughness in Leuthold v. Goodman (1945), 22 Wn. (2d) 583, 157 P. (2d) 326, and a repetition of that discussion would serve no purpose here. A recent annotation (1957) entitled “Deviation from employment in use of employer’s car during regular hours of work,” will be found in 51 A. L. R. (2d) beginning at page 8. It will be conceded that some courts have held that where there has been a distinct or extensive departure from the scope of employment, as in this case, that the employment has been resumed by starting back, although the employee has not yet returned to his point of departure from the business route or to the immediate area where his duties would have been performed but for his departure. See § 22 of the annotation. The rationale of the Washington cases does not support such a holding; and we approve the reasoning of the cases in § 23 of the annotation, which hold that the personal venture is not terminated and the employment is not resumed until the employee has returned to his point of departure from the business route, or at least to the general area where his business duties might have brought him if he had not deviated. Gray v. Department of Labor & Industries (1953), 43 Wn. (2d) 578, 262 P. (2d) 533; Sears v. Moran (1945), 223 Ind. 179, 59 N. E. (2d) 566; Master Auto Service Corp. v. Bowden (1942), 179 Va. 507, 19 S. E. (2d) 679; Bell v. Martin (1941), 241 Ala. 182, 1 So. (2d) 906; Model Laundry v. Collins (1931), 241 Ky. 191, 43 S. W. (2d) 693; Crady v. Greer (1919), 183 Ky. 675, 210 S. W. 167. In Master Auto Service Corp. v. Bowden, supra, it is said (p. 513),

“The true test of liability is whether the servant was engaged in his master’s business and not whether he proposed to resume it. . . . It was Powell’s own wrong in departing from the zone in which his master had directed him to work that created the duty to return. In so returning, he was but undoing that wrong. He was no more engaged in his master’s business while returning to, than while departing from, his zone of duty.”

In many situations the issue of scope of employment is a jury question, as in Leuthold v. Goodman, supra, but there are many cases where it is clearly a matter of law for the court. In cases such as Nelson v. Broderick & Bascom Rope Co. (1958), 53 Wn. (2d) 239, 332 P. (2d) 460, we have held that the trial court properly sustained a challenge to the sufficiency of the evidence against the employer; in cases such as Ludberg v. Barghoorn (1913), 73 Wash. 476, 131 Pac. 1165, we held the trial court properly directed a verdict for the employer; and in each of the following cases— Barnett v. Inland Motor Freight (1954), 44 Wn. (2d) 619, 269 P. (2d) 592; Roletto v. Department Stores Garage Co. (1948), 30 Wn. (2d) 439, 191 P. (2d) 875; Mitchell v. Nalley’s, Inc. (1931), 163 Wash. 183, 300 Pac. 526; Savage v. Donovan (1922), 118 Wash. 692, 204 Pac. 805—we set aside a verdict for the plaintiff and directed a dismissal of the action against the employer because it was clear that the employee involved was not in the course of his employment.

In Barnett v. Inland Motor Freight, supra, we said (p. 621),

“We have been liberal in sustaining verdicts in the class of cases where the testimonial knowledge of the fact of agency is confined to adverse interested witnesses and where a plaintiff has only a presumption of fact to get his case past a motion for a nonsuit; however, we have required that there be shown some reasonable relationship between what the employee was doing at the time of the happening of the event upon which liability was based and the character of the employment. The latter may be so remote from the former and there be such a clear lack of relationship between the two that the court must hold as a matter of law that the burden of proof has not been sustained, or that the inferences to be drawn favorable to the plaintiff have been so completely met and overcome that the court must hold that reasonable minds cannot differ and conclude the verdict cannot stand.”

And in Savage v. Donovan, supra, we said (p. 696),

“ . . . How much out of the way may one go and how much time may he spend, if any, not in the master’s service, and yet the master be held liable? In cases of this general kind a deviation in the line of travel is often troublesome in the determination of essential and ultimate facts, but never so if it be true, as here, that the deviation is marked and continuous and in no way called for in the execution of the master’s business, but indulged in only for the personal pleasure of the servant.” (Quoted in part and and approved in Nelson v. Broderick & Bascom Rope Co., supra.)

Appellants rely heavily on Wernegreen’s testimony that somebody (he didn’t know who) had told him that the route did not make any difference so long as he did not go over twenty-five hundred miles and arrived in Seattle by August the 30th.

This blanket permission, if given, might be very important in an action on an insurance policy involving the coverage of one driving with the permission of the owner; but permission to use a car for the driver’s own purposes does not establish the liability of the owner.

Our case of Hamm v. Camerota (1955), 48 Wn. (2d) 34, 290 P. (2d) 713, makes the distinction between an employee driving within the scope of his employment, and driving with his employer’s permission very clear. It is stated in Vezolles v. Home Indemnity Co., New York (1941), 38 F. Supp. 455, 458, that the provision in the policy (permissive use) is not to be governed by the law of principal and agent, and that the purpose of the policy provision was to extend the coverage beyond the limitations that would otherwise exist under the law of principal and agent. See, also, Wallin v. Knudtson (1955), 46 Wn. (2d) 80, 278 P. (2d) 344.

The test of respondeat superior is not permission to use, but whether the use was at the direction or for the benefit of the employer or principal.

In summary, we reiterate that if Wernegreen had his own choice of routes to Seattle, despite the specific designation in his agreement, there might have been a justification of his choice of the much longer coast route over the designated highway No. 99; but no one has yet suggested that he was on his way to Seattle when he went to Hoquiam and north to the ocean beaches. To reach Seattle by that route would have involved a trip entirely around the Olympic peninsula. Beyond the possibility of a doubt, Wernegreen was not acting within the scope of his employment or agency, nor was he furthering his employer’s or his principal’s interests in any way when this collision occurred; at best, he was on his way back from a side trip or venture of his own. Respondeat superior has no application here.

These cases should never have been submitted to the jury as against the owner of the car, J. F. Grant. The judgment dismissing both actions as to Grant is affirmed.

Weaver, C. J., Mallery, Donworth, Rosellini, and Ott, JJ., concur.