Schweinhaut v. Flaherty

• Decision Date: 06 April 1931
• Docket Number: No. 5073.,5073.
• Citation: 49 F.2d 533,60 App. DC 151
• Parties: SCHWEINHAUT v. FLAHERTY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 151, 49 F.2d 533 (1931)

SCHWEINHAUT v. FLAHERTY.

No. 5073.

Court of Appeals of District of Columbia.

Argued March 11, 1931.

Decided April 6, 1931.

C. H. Merillat, of Washington, D. C., for appellant.

Harry T. Whelan and William B. O'Connell, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and GRONER, Associate Justices.

GRONER, Associate Justice.

This action was originally brought in the Supreme Court of the District of Columbia by Delia Flaherty, appellee, whom we shall hereafter call plaintiff, against Wardman Park Taxicab Company, Inc., appellant, whom we shall hereafter call defendant, and was to recover from the defendant damages for personal injuries done to the plaintiff by carelessly and negligently driving a taxicab against her when crossing a street in the city of Washington.

The declaration alleges that the driver of the taxicab was the defendant's servant, and engaged in its business. Defendant moved for a directed verdict on two grounds: First, that the evidence showed that the taxicab was not engaged at the time of the accident on business of the company, but in the personal affairs of the driver in transporting to her home a woman who was not a pay passenger; and, second, that the evidence showed that the accident was due to plaintiff's contributory negligence.

Defendant was the operator of taxicabs in the city of Washington, and had two exclusive concessions or stands, one located at Wardman Park Hotel and the other at Chastleton Apartment Hotel. Its drivers were instructed that, when three of its cabs drew up to the Chastleton stand, the cab at the head of the line should pull off and proceed to the other stand. When a cab was dismissed by a passenger, its duty was to report to the Wardman Park stand for directions, and, while in transit from one point to another, the driver was at liberty and expected to take on a passenger if hailed for that purpose. When not carrying passengers, the driver was expected to be on one or the other stand. There was no regular place fixed for the drivers to get their meals during working hours, but they were warned to use as little mileage as possible for that purpose, and not to go out of their way to eat.

On the evening in question, the driver of the taxicab involved had taken a passenger from the Chastleton Hotel to the Wyoming Apartments, and had then gone back to the Chastleton again. About 9 o'clock, while he was in line at the Chastleton, two other taxis of the defendant came up, and this required him to move. The driver, who had invited a female friend to meet him at the Chastleton that evening, and who had done so, thereupon invited her to get into the cab and go with him while he had his supper, and promised then to drive her home. He paid the company nothing for her transportation. The accident occurred after he had gotten his supper and was driving his woman companion to her home, which was several blocks out of his regular course.

The first question for determination is whether the action of the driver of the taxicab in departing from his line of duty in his employer's business exempted the employer from liability for his negligence. There is, of course, no controversy here as to the rule that the master is liable for the negligence of the servant while the latter is acting in the master's business and within the scope of the employment, and equally is it admittedly true that such liability exists even in those cases in which the servant's negligent act is contrary to the master's instructions. In the latter case — where the servant is disobeying the master's orders and as a result injures a stranger — the question ordinarily is whether the servant was at the time acting within the course of his employment, that is to say, whether at the time of the injury the relation of master and servant obtained. Many cases may be cited to the effect that the servant's disregard of the master's orders, even though the disregard be impelled by some purpose personal to the servant, does not change the ordinary rule, or, in the event of injury to a third person as a result thereof, exempt the master from liability. Quinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040. On the other hand, it is undoubtedly true that it has been frequently held in many of the state courts that, since the liability of the master in such circumstances grows out of the maxim qui facit per alium facit per se, the master is not liable if the tortious act of the servant occurs during a severance of the relationship, notwithstanding he may then be using his master's property.

This rule, as applied to cases of the wrongful use by the servant of his master's automobile, is well expressed in 2 R. C. L. page 1198, as follows: "The owner of an automobile is not liable to one who is injured by the negligence of his chauffeur while operating the machine without his knowledge or permission and for a purpose other than that for which he was employed, as where the driver is on an errand personal to himself, or is making a detour for his own purpose." Following this rule, it has been held that, where the servant steps outside of his employment to do an act for himself not connected with his master's business, no liability attaches. Tyler v. Stephan's Adm'x, 163 Ky. 773, 174 S. W. 790. And so here we are asked to hold in effect that defendant cannot be held liable because the driver of his cab was at the time of the injury to plaintiff using the same in violation of the master's rule, and this too, notwithstanding it is not contested he was then in the master's employ and rightfully in possession of the cab. This we think is not and should not be the law. We cannot shut our eyes to the fact that an automobile, in the crowded conditions of street traffic as it exists today in large cities, is, as was declared by Mr. Justice Sutherland in the recent case of District of Columbia v. Colts, 282 U. S. 63,...