Anderson v. Schust Co.

• Court: Michigan Supreme Court
• Writing for the Court: POTTER
• Citation: Anderson v. Schust Co., 262 Mich. 236, 247 N.W. 167 (Mich. 1933)
• Decision Date: 02 March 1933
• Docket Number: No. 47.,47.
• Parties: ANDERSON v. SCHUST CO.

262 Mich. 236

247 N.W. 167

ANDERSON

v.SCHUST CO.

No. 47.

Supreme Court of Michigan.

March 2, 1933.

Appeal from Circuit Court, Saginaw County; Clarence M. Browne, Judge.

Suit by Irene M. Anderson, administratrix of the estate of H. Firth Anderson, deceased, against the Schust Company, a Michigan corporation. From a judgment for defendant, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.O'Keefe & O'Keefe, of Saginaw, and Victor C. Anderson, of Lansing, for appellant.

Crane & Crane, of Saginaw, L. J. Carey and George J. Cooper, both of Detroit, and Frank A. Rockwith, of Saginaw, for appellee.

POTTER, Justice.

[1] Plaintiff, administratrix of the estate of H. Firth Anderson, deceased, brought suit against the Schust Company to recover damages for the death of plaintiff's decedent. From a judgment for defendant, plaintiff appeals. Judgment having been directed for defendant by the trial court, the testimony introduced must be construed in its light most favorable to plaintiff. The only question involved is whether such testimony was sufficient, in law, to make it encumbent upon the trial court to submit the case to the jury. Plaintiff says it was sufficient. Defendant claims it was insufficient. Defendant's car was being driven by Merle J. Bowman, who worked for defendant in Grand Rapids. Edward J. Rohring of Grand Rapids had charge of the Schust agency there. He had been instructed by defendant to use its cars only in the company's business. Rohring, then branch manager at Grand Rapids, told Bowman he could take the car on the occasion in question and drive to Pinconning. It was on this trip the accident occurred. The court found the clear, undisputed and uncontradicted proof on the part of plaintiff showed the car of defendant was being driven at the time and place of the collision by Mr. Bowman, an employee of defendant, for his own pleasure or business, and not in the business of defendant, nor within the scope of his employment as an employee of defendant. Though he was driving defendant's car with the express consent of Mr. Rohring, defendant's branch manager, it was against the positive orders and instructions of defendant to its branch manager Mr. Rohring, who violated such orders and instructions given him, in permitting Bowman to drive the car for his own pleasure and business; that Rohring as branch manager was not acting in the scope of his authority or in furtherance of the business of defendant in loaning defendant's car to Bowman, and therefore the car was not being driven with the consent of the defendant, either express or implied, and plaintiff could not recover.

It is conceded defendant cannot be held liable unless the motor vehicle driven by Bowman was driven with the express or implied consent or knowledge of defendant. Section 4648, Comp. Laws 1929. There is no claim the motor vehicle was being driven with the express consent or knowledge of defendant. The important question is whether it was being driven with its implied knowledge or consent.

As between the master and servant, the master is liable only when the servant acts within the actual scope of his authority, but as between defendant and third persons injured by the acts of the servant, defendant may be liable when the servant is acting within the...