Cannon v. Goodyear Tire & Rubber Co. of California

• Decision Date: 21 April 1922
• Docket Number: 3739
• Citation: 60 Utah 346,208 P. 519
• Parties: CANNON v. GOODYEAR TIRE & RUBBER CO. OF CALIFORNIA
• Court: Utah Supreme Court

208 P. 519

60 Utah 346

CANNON v. GOODYEAR TIRE & RUBBER CO. OF CALIFORNIA

No. 3739

Supreme Court of Utah

April 21, 1922

Rehearing denied July 1, 1922.

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by William Karl Cannon against the Goodyear Tire & Rubber Company of California. From a judgment for defendant plaintiff appeals.

AFFIRMED.

Hurd & Hurd, of Salt Lake City, for appellant.

Frank J. Gustin and Rich, Rich & Roberts, all of Salt Lake City, for respondent.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

Plaintiff brought this action to recover damages for personal injuries sustained by him in an automobile accident occurring on one of the streets of Salt Lake City December 27, 1919. It is alleged in the complaint that on the day last mentioned plaintiff was driving a Ford truck and stopped at a point on South Temple and Second West streets in said city for the purpose of making certain repairs; that he stopped a distance of about two feet from the south curb of said South Temple street, and while so stopped for the purpose aforesaid defendant, by its servant, Henry Kratzer, negligently, carelessly, and recklessly drove a large, heavy, and powerful automobile truck belonging to defendant against plaintiff's Ford truck with such force and violence as to cause the same to be knocked, pushed, and driven against, upon, and over the plaintiff, thereby inflicting upon him serious injury to his damage in the sum of $ 20,000.

Defendant, answering the complaint, among other defenses, alleges that the accident did not occur at a time when the said Henry Kratzer was acting within the scope of his employment with the defendant, but at a time when he was engaged in his own business.

The case was tried to a court and jury. At the conclusion of the evidence defendant moved for a directed verdict chiefly upon the ground that Henry Kratzer, the driver, was not acting within the scope of his employment with the defendant at the time of the accident. The court granted the motion. A verdict was rendered for defendant, and judgment entered accordingly.

The order of the court directing a verdict for defendant is assigned as error, and is the only question presented for our determination.

The evidence is without substantial conflict to the effect that on the day of the accident which resulted in the injuries complained of by plaintiff Henry Kratzer was, and for some months previous thereto had been, in the employment of the defendant; that on the day in question his employment was that of truck driver for the delivery of express matter, parcel post packages, and freight, and for that purpose some weeks before the accident he had been furnished by the defendant with the truck driven by him at the time the accident occurred. The hours of his employment during every day of the week except Saturday and Sunday were from 8:30 a. m. to 5:30 p. m., and on Saturday from 8:30 a. m. to 1 o'clock p. m. from which hour until 8:30 a. m. on the Monday next following his time was his own. The closing hours above mentioned were subject to a slight variation in order to finish the last trip of the day. The driver, Kratzer, was under general instructions to not use the truck except on business for the defendant company. On two or three occasions previously he had been given permission to use the truck for his own accommodation, but on the day of the accident no such permission had been given. There was also a standing instruction, of which Kratzer was cognizant, that at the conclusion of the last trip for the day the truck was to be immediately returned to the garage. The garage was situated between Main and West Temple streets on Second South street, while defendant's office and place of business was between Third and Fourth West on Second South, about four blocks west of the garage.

On Saturday, December 27, 1919, at 12:15 p. m. Kratzer started on his last trip for the day. The trip included the delivery of an express package at the Oregon Short Line depot on Third West and South Temple streets, and it is estimated by the stock clerk who kept the books and records for defendant that Kratzer would finish the trip about 1:10 p. m., and entry was made accordingly. Kratzer made the delivery of the express package at the depot as contemplated, but, instead of returning the truck to the garage immediately, pursuant to instructions, he drove from the depot to North Temple street; thence across the viaduct to Ninth West street; thence north to Fourth North street; thence west to Eleventh West street and spent the afternoon until about a quarter to 6 p. m. on business of his own, during which time he used the truck moving furniture for himself and spent the remainder of the time at his home assisting his wife in their household affairs. At a quarter to 6 he started with the truck in the direction of the garage and returned by way of the Oregon Short Line depot; thence east on South Temple street to a point just east of Second West street where the accident occurred.

Kratzer testified that his final duty on each day was to return the truck to the garage. He also testified that on the day of the accident he quit the company's business at 1:30 p. m., and that the time from that hour until 8:30 a. m. the following Monday was his own.

The foregoing facts are clearly deducible from appellant's abstract of the evidence, and the abstract truthfully reflects the record.

It is conceded by appellant that Kratzer's time was his own on the day of the accident from the time of making his last delivery down to the hour when he started to return the truck to the garage, and especially down to the time when the passed the Short Line depot on the return trip, but it is earnestly contended that from that point on to the garage he was in the service of defendant, because his final duty to the defendant was to return the truck to the garage. In support of this contention many automobile accident cases involving the doctrine of respondeat superior are called to our attention. Whimster v. Holmes, 177 Mo.App. 130, 164 S.W. 236; Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 197 P. 24; Dale v. Armstrong, 107 Kan. 101, 190 P. 598; Snyder v. Eriksen, 109 Kan. 314, 198 P. 1080; Ferguson v. Reynolds, 52 Utah 583, 176 P. 267; McKiernan v. Lehmaier, 85 Conn. 111, 81 A. 969; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040; 26 Cyc. 1529-1535.

In Whimster v. Holmes, supra, it does not appear but that the accident occurred within the hours of the servant's employment. The defendant was held liable.

In Samuels v. Hiawatha Holstein Dairy Co., supra, the evidence was conflicting, and consequently was a case for the jury. Besides this, the decision was controlled by a positive statute.

In Dale v. Armstrong, supra, the chauffeur of defendant deviated somewhat from his employment to do an errand for a third person. In answer to special interrogatories the jury found that at the time of the accident he was engaged in performing a special service required by his employer. Like the Whimster Case, the time of the accident appears to have been within the hours of his employment. A judgment for plaintiff was affirmed.

In Snyder v. Eriksen, supra, the servant of defendant was directed by his superior to take a motor truck and drive it home to get his dinner in order that he might sooner return and resume his regular employment. On his way to dinner, through his negligent driving, an accident occurred. Defendant held liable.

Furguson v. Reynolds, supra, has no application.

In McKiernam v. Lehmaier, supra, the first headnote reflects the opinion of the court as far as it concerns the question here:

"A chauffeur who, having taken his employer to the...