Hannis v. Driver ( 1917 )

Opinion by

Kephaet, J.,

We have in this appeal the question of the liability of the owner of an automobile for an injury caused by the negligence of the chauffeur who had general permission to use the car and had been given general instructions to return it to the owner’s garage when through using it. The chauffeur took the car on an errand for the master. After he had completed this erraitd he drove the car, exclusively on his own business, to a number of places some distance apart and in a direction opposite to that where the garage was located. The accident happened while returning the car to the garage. We have held that the owner of the car would not be liable for damages occasioned through the negligence of one who had permission to use the car where the accident occurred while the car was in such use though traveling in the direction of the place where the owner kept it: Scheel v. Shaw, 60 Pa. Superior Ct. 73; 252 Pa. 451. Where the owner of a car lends or hires it to another and it is wholly under the use, direction and control of the borrower or hirer, the relation of bailor and bailee is created and the bailor is not responsible for the negligent use of the ear: Scheel v. Shaw, supra; McColligan v. Penna. R. R. Co., 214 Pa. 229. In such a case the bailment continued during the. time the bailee had the use, control and direction of the car. This covered the return of the car with the chauffeur’s family. In Solomon v. Commonwealth Trust Co. of Pittsburgh, 256 Pa. 55, it was held that where a car had been taken under the owner’s direction to a shop for repairs and to be thereafter returned to the owner’s garage and the chauffeur, without authority, used the car for his own purpose, driving in an opposite direction from the garage, and an accident occurred while returning the car to the garage, the owner was not liable to the person injured. The chauffeur in that case was not acting as servant or bailee, even though he was returning the car to the place where his master kept it, and this return was necessary if the car had been taken direct from the repair shop. His acts as to third persons were those of a temporary owner, though he might be liable to the owner in trespass as for a conversion. In Graham v. Henderson, 254 Pa. 137, the jury found that the servant had been permitted to take the car on an errand of his own and was required to return it at a given hour to a place where the owner was to meet him. On the return he injured the plaintiff. The owner was held liable because the relation of master and servant was resumed when the servant again acted under the specific instructions of the master. The car was then being operated and controlled under the owner’s orders. It was in obedience to this express direction that he was returning to meet him at a designated place. In the case at bar the owner permitted the chauffeur, his brother, to use the car at any time. This permission continued until the owner did something to assert his control over the car. When the car was used by the'chauffeur for his own purpose, the relation of master and' servant, that had existed prior to the initial departure of the servant on his own account, was superseded by the bailment and this latter relation continued until the car was returned to the place provided by the owner for its lodgment, or until the chauffeur was again acting under the master’s specific direction and control. At any moment prior to the time the accident occurred, the servant could have used the car in his own business. His right to use the car for his own purpose had not been suspended by the happening of the accident; he could immediately thereafter have so used it. That incident did not have the effect of changing the status of the owner and borrower. The general instruction to return the car cannot be viewed in any other light than the ordinary obligation incident to every bailment that the chattel must be returned to the owner’s possession. This must be the guiding principle, unless in the contract of bailment it expressly appears to the contrary.

The judgment of the court below is reversed and the record is remitted with direction to enter judgment n. o. v. for the defendant.