Slothower v. Clark

• Decision Date: 01 February 1915
• Docket Number: No. 11410.,11410.
• Citation: 179 S.W. 55,191 Mo. App. 105
• Parties: SLOTHOWER v. CLARK.
• Court: Missouri Court of Appeals

179 S.W. 55

191 Mo. App. 105

SLOTHOWER v. CLARK.

No. 11410.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

Rehearing Denied February 27, 1915.

Writ of Certiorari Denied by Supreme Court May 3, 1915.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Lewis Slothower against Edgar W. Clark. From a judgment for plaintiff, defendant appeals. Affirmed.

Hadley, Cooper & Neel, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received in a collision between a hearse on which he was riding and defendant's automobile. The judgment in the trial court was for plaintiff.

It appears that defendant had a chauffeur in his employ who drove the machine for him. That on Sunday morning the chauffeur drove him and his wife to church near Tenth and Harrison streets, Kansas City, Mo., arriving there at 11 o'clock. Before going into the church defendant directed the chauffeur to go to the "Commerce Building," about nine blocks west from the church, and get his son, then return back by the church and wait to take them home. Instead of performing these services directly, the chauffeur went a distance of six blocks east and five blocks south of the church to collect a debt owing to him by a man named Sweeny. In doing this he was practically going in an opposite direction from the Commerce Building. He collected what was due him, and invited Sweeny in the machine to ride on the seat beside him, and started for the Commerce Building, where he was to get defendant's son. Sweeny asked the chauffeur to let him drive the machine, and the chauffeur did so by exchanging seats and letting him take charge of the steering wheel. On the way the machine collided with a hearse at Fourteenth and Paseo streets, whereby plaintiff was injured.

There was ample evidence to take the case to the jury on the question of negligence on the part of the driver of defendant's machine in colliding with the hearse, unless it be that the driver, at the time of the collision, was Sweeny, and that defendant would not be liable for his conduct, a phase of the case we will refer to again.

We will therefore pass to the important question whether the chauffeur was engaged in the line of his employment in defendant's service at the time the injury was inflicted upon plaintiff. First, we have testimony in defendant's behalf that the chauffeur had orders from him to run the machine carefully, and not to allow any one else to operate it. We will assume this to be a fact, but state the law that mere orders to the servant will not absolve the master from liability for the servant's acts. If it did, it would be a simple process for employers to rid themselves of all responsibility for the conduct of their agents. The question is not what orders did the master give as to his conduct but whether the servant was engaged in performing service for him at the time of the injury, and this is determined, not by his orders for behavior, but by the behavior itself, even though contrary to orders. Whimster v. Holmes, 177 Mo. App. 130, 134, 135, 164 S. W. 236. In that case the chauffeur, by authority of the owner, had taken an automobile to a public garage to be inspected, and was returning home to put up the machine when he discovered he had lost the keys to the machine and his master's private garage, and, thinking he may have left them at the public garage, turned back to go there and search for them. On his way, he injured a pedestrian, and we held he was prosecuting his employment in his master's service. We refer to that case for the reasons and authorities supporting our present conclusion that defendant's chauffeur was in the course of his employment, as defendant's servant, when he collided with plaintiff. His particular service was to go after defendant's son and bring him by the church, there to await defendants coming from the church and then to take them home. In going after the son he went out of his way to perform a service for himself in collecting a debt. In the Whimster Case, at page 138 of 177 Mo. App., at page 239 of 164 S. W.. we quoted the following from Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361:

"`In cases of deviation the authorities are clearly to the effect that a mere departure by the servant from the strict course of his duty, even for a purpose of his own, will not, in and of itself, be such a departure from the master's business as to relieve him of responsibility.' And if the servant in going extra viam is really engaged in the execution of his 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. Thus in Patten v....