Bryant v. Bare, 3760

• Decision Date: 07 May 1951
• Docket Number: No. 3760,3760
• Court: Virginia Supreme Court
• Parties: JAMES R. BRYANT v. CARL P. BARE, ADMINISTRATOR, ETC. Record

Page 741

64 S.E.2d 741

192 Va. 238

JAMES R. BRYANT v. CARL P. BARE, ADMINISTRATOR, ETC.

Record No. 3760.

Supreme Court of Appeals of Virginia

May 7, 1951.

Oren R. Lewis, for the plaintiff in error.

Arthur C. Stickley, II, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Carl P. Bare, as administrator of the estate of James C. Bare, obtained a judgment for $7,500 against James R. Bryant for the wrongful death of decedent. To reverse this judgment defendant sought and obtained this writ of error.

Defendant lives in Falls Church where he operates a restaurant. He owns a farm four miles northwest of Centerville, in Fairfax county. Approximately two weeks before the accident he employed Cecil I. Davy and his wife, agreeing to pay them by the month. Davy was employed to do general farm work, such as feeding the stock, milking cows, cutting wood, and other things incidental to the operation of a farm. Mrs. Davy was employed to work in the house and 'help' take care of defendant's mother who was old and lived on the farm with her husband.

At approximately 6:00 p.m. on February 27, 1948, Davy, with his wife riding in the cab with him, was driving a Ford pick-up truck owned by defendant west on Highway No. 211, near Hilltop Inn, in Fairfax county. This is a dual-lane highway with a grass plot 15 feet, 7 inches wide between the east and west-bound traffic lanes, each of which is 22 feet wide. Several witnesses, riding in other motor vehicles, saw the truck zigzag several times from one side of the west traffic lane to the other, and finally veer to the left over on the grass plot where it struck and killed James C. Bare, plaintiff's decedent, and Clay Baldwin, who were walking with their backs to the approaching truck. Davy, without stopping at the scene, turned his truck to the right off of the grass plot onto the hard surface and drove on toward the farm by way of Centerville. Before reaching his destination, he drove the truck off the road into a ditch. From there he and his wife walked to the farm where Davy was arrested a few minutes later.

Defendant concedes that the evidence is ample to convict Davy of negligence, but contends that other testimony and certain physical facts prove decedent guilty of contributory negligence as a matter of law.

Without repeating the testimony upon which defendant bases this contention, we deem it sufficient to say that the jury had a right to believe that at the time of the accident decedent was walking in a path on the grass plot about 15 inches from the curb, which path was customarily used by pedestrians going west; that decedent had no reason to believe that a motor vehicle approaching from behind would leave the paved portion of the highway and strike him. After he was struck his body was found lying on the grass plot at right angles to the paved surface, with his head extending a few inches on the pavement, and blood spots were observed on the grass and the pavement. There were marks on the grass indicating that the wheels of the truck had left the paved surface and gone over on the grass plot and back on the pavement. This view of the evidence renders it unnecessary for this court to further consider the question of contributory negligence.

Defendant's next contention is that Davy was not acting within the scope of his employment at the time of the accident and, therefore, he is not liable under the doctrine of respondeat superior.

There is substantial conflict in the evidence on this issue.

It is conceded that one of the stipulations in the contract of employment was that Davy should have 'every other Friday off to go to the doctor' in Washington for medical treatment.

Defendant testified that on Thursday, February 26, he told Davy that the truck had not been inspected and should not leave the farm, but he could use it the next morning to drive to Centervile, park it there, take a bus to Washington to see the doctor and on his return drive the truck to the farm. He also testified that he did not give Davy permission to drive the truck from Centerville to his restaurant in Falls Church, nor did he request Davy to haul hay from his farm to the restaurant or to haul anything from the restaurant to the farm. The substance of his testimony is that Davy was using the truck at the time of the accident for his sole personal benefit. If this were all the testimony the jury would have been compelled to find that Davy was not acting within the scope of his employment at the time of the accident.

The evidence for plaintiff presents quite a different picture. Mrs. Davy testified: 'It was on Thursday afternoon he (defendant) was there at the place, and my husband asked him about how was he going to get into Washington to the doctor, and Mr. Bryant said, 'Well, I have some things I want you to bring in, some hay to be brought in to my restaurant. You bring the truck in to my restaurant.' And he said, 'Then I will have a saw rig and a can of garbage put on the truck for you to take back to the farm."

Pursuant to defendant's instructions, on the morning of the accident Davy and defendant's father loaded the truck with hay. Davy, with his wife riding in the cab, drove the truck by Centerville and Hilltop Inn to Falls Church, and with the hay thereon, parked it near the back door of defendant's restaurant. About 9:00 a.m. Davy and his wife took a bus to Washington. Davy was under no obligation to complete his mission in Washington or to return to the restaurant or the farm at any specific time that day. He and his wife did return to the restaurant between 12:30 and 2:00 p.m. when defendant requested Mrs. Davy to buy a box of crackers and a bottle of medicine to take to his mother who lived on his farm. She made the purchases, took them to the truck, and saw that the hay had been removed from the truck and the saw rig and can of garbage loaded thereon.

At approximately 2:00 p.m. Davy and his wife got into the truck which was then loaded with the saw rig and can of garbage to be transported to and used on the farm for defendant's benefit. Instead of taking the direct route to the farm, they drove to Tyson's Corner, which is on another highway approximately four miles from Falls Church. There Davy drank beer and his wife ate a hamburger, after which they drove several miles to Vienna, which lies in the direction of defendant's farm, but not on the direct route leading from his restaurant to it. There Mrs. Davy made purchases for herself. On leaving Vienna they drove to a near-by farm, and paid a social call on friends, one of whom gave Davy a dog. About 4:00 p.m. they arrived at Hilltop Inn, which is on the direct route from defendant's restaurant to his farm, and was the same route along which they had driven that morning in going from the farm to Falls Church. They stayed in and around Hilltop Inn for approximately two hours. Mrs. Davy testified that she kept trying to get her husband to go home (meaning defendant's farm), 'and yet he wouldn't. He was going to stay a little while longer. * * * around 6:00 o'clock it was getting dark and raining and foggy and we started home. * * *' She also testified that her husband was 'pretty full. * * * I wouldn't say he was what you would call a drunk,' when he started to go 'straight' to the farm.

Defendant contends that the only conclusion that can be drawn from the foregoing evidence is that at the time of the accident Davy had abandoned defendant's business and was not acting within the scope of his employment. In support of this contention he cites the following cases: Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425; Kidd v. DeWitt, 128 Va. 438, 105 S.E. 124; Bivens v. Manhattan For Hire Car Corp., 156 Va. 483, 159 S.E. 395; Drake v. Norfolk Steam Laundry Corp., 135 Va. 354, 116 S.E. 668; Sydnor & Hundley v. Bonifant, 158 Va. 703, 164 S.E. 403; Master Auto Service Corp. v. Bowden, 179 Va. 507, 19 S.E. (2d) 679; Kavanaugh v. Wheeling, 175 Va. 105, 7 S.E. (2d) 125.

These cases are in accord with the general rule, namely: that where an employee commits a tort during the time that he has temporarily abandoned the business of his employer and while on a mission of his own, the employer is not responsible for a negligent act of the employee. This is true, although the employee was using the master's property and the injury would not have been caused without the facilities afforded the employee by reason of his relation to his employer. If there is no conflict in the evidence and the deviation is slight, or if the deviation is marked and unusual, it is a question of law, but where the evidence presents a case between these two extremes, the question of whether the employee is acting within the scope of his employment becomes a question for the jury.

The law is comparatively simple. The difficulty arises in its application. The true test is not whether a particular act of an employee was done during the existence of his employment, but whether it was done in the course of his employment, or outside of it.

The evidence for plaintiff conclusively shows that on the day in question Davy was permitted to use the truck on the highway for the benefit of both himself and defendant. 'An act may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person. * * * The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master's business...