Frontier Theatre, Inc. v. Whisenant ( 1956 )

McGILL, Justice

(dissenting).

Appellants’ 5th point is that since all of the evidence reflects that James L. Winter, Sr. had departed from the usual course of travel from his home to the theater for the purpose of carrying out a private mission, unauthorized by James L. Winter, Jr., or by Frontier Theatre, Inc., it follows as a matter of law that James L. Winter, Sr. could not have been the agent of Frontier Theatre a.t the time of the accident resulting in the injury' to plaintiff, as all the facts reflect that he acted contrary to the authority granted him in connection with the use of the pickup truck, and that he was clearly on a private mission unconnected with the business of Frontier Theatre, Inc. at the time of the collision. It is true that the evidence shows that James L. Winter, Sr. on the occasion in question was taking the pickup truck from his home to the theater in the city of Crane, and that his usual route of travel from his home to the theater would not have been by way of the intersection of Sue and Sixth Street, where the accident occurred. It also appears that James L. Winter, Sr. had driven through the intersection of Sue & 6th Street for the purpose of taking his grandson to school, and that he did not have authority from Frontier Theatre or anyone else to use the pickup truck for the purpose of transporting his grandson to school.

I think that under the undisputed facts reflected by this record appellants’ contention that at the time of the collision as a matter of law James L. Winter, Sr. was' not acting within the scope of his employment for Frontier Theater must be sustained. Had it not been for his deviation for the purpose of taking his grandson to school he would not have been at the scene of the collision. It was a purpose of his own, and not of the Frontier Theater, that placed him there. Under this state of facts the Frontier Theater is not responsible for the injuries suffered by Michael David Whisenant as a result of the collision with the pickup truck; therefore the judgment of the trial court should be reversed and judgment here rendered that plaintiff take nothing' as ’ against Frontier Theatre, Inc. The judgment against James L. Winter, Sr. should be in all respects affirmed.