Central Truckaway System, Inc. v. Moore

• Decision Date: 22 April 1947
• Citation: 201 S.W.2d 725,304 Ky. 533
• Parties: CENTRAL TRUCKAWAY SYSTEM, Inc., v. MOORE.
• Court: Kentucky Court of Appeals

201 S.W.2d 725

304 Ky. 533

CENTRAL TRUCKAWAY SYSTEM, Inc., v. MOORE.

Court of Appeals of Kentucky

April 22, 1947

Appeal from Circuit Court, Common Pleas Branch, Third Division Jefferson County; William H. Field, Judge.

Action by William Moore against Central Truckaway System Incorporated, for injuries sustained in an automobile collision. From an adverse judgment, defendant appeals.

Judgment affirmed.

See also 201 S.W.2d 731. was not excessive.

Robert L. Page and Albert F. Reutlinger, both of Louisville, for appellant.

Doolan Helm, Stites & Wood, of Louisville, for appellee.

VAN SANT, Commissioner.

The action was instituted by William Moore to recover damages for injuries sustained to his person, medical expenses incurred for his wife, and for destruction of his automobile resulting from a collision with one of appellant's trucks on U.S. Highway 31-W near Shively, a suburb of Louisville. At the point of collision the highway is constructed of concrete and consists of two northbound and two southbound lanes of traffic. Appellee, accompanied by his wife, was proceeding northerly in one of the northbound lanes. Robert Derrett, driving one of appellant's trucks, proceeding in a southerly direction, struck an automobile parked on the berm to the west of the lane provided for southbound vehicles; the truck then veered to the east across the lanes provided for northbound traffic and collided with appellant's car with such force that when it stopped its chassis was resting on top of the automobile. At the conclusion of the evidence the Trial Court overruled appellant's motion for a peremptory instruction and directed the jury to find for appellee, and under proper instructions permitted them to determine whether the personal injuries were temporary or permanent, and to fix the damages accordingly. The jury awarded damages in the sum of $9,000 for personal injuries, and $690 for medical expenses incurred by appellee in behalf of his wife and for the damage to the truck.

It is conceded that the accident was caused solely by Derrett's inability to control the truck because of his drunken condition; but reversal is urged upon the grounds (1) that the Court erred in overruling appellant's motion for a peremptory instruction, because (a) the driver of appellant's truck was not acting within the scope of his employment at the time of the accident, and (b) proof that it had exercised reasonable care in selecting its servant, that it did not know he used intoxicating liquors, and could not have anticipated that he would be intoxicated at the time of the accident, exonerated the master from liability; and (2) the damages for personal injuries are excessive.

The accident occurred at a point approximately 200 yards south of the intersection of 31-W with Sanders' Lane and approximately 300 yards north of the intersection of 31-W with Sadie's Lane. Both Sanders' Lane and Sadie's Lane run in general easterly directions from 31-W, and converge at a point approximately one quarter of a mile therefrom. From that point easterly the road is known as Sadie's Lane, and Derrett lives approximately one quarter of a mile east of the point of convergence. Moore, at that time a Corporal in the United States Army, was proceeding from Camp Breckinridge, Kentucky, to his home in Hartfield, Ohio, where he intended to spend a five-day furlough preceding embarkation for overseas duty. The evidence in respect to Derrett's movements previous to the accident is not very clear. We first find him at appellant's plant located at 1401 Southwestern Parkway in the City of Louisville. From there he was instructed by appellant's dispatcher to drive the truck to Greenwood, Mississippi, a distance of 521 miles, via U.S. 31-W through Bowling Green, Kentucky, Clarksville and Memphis, Tennessee, and Clarksdale, Mississippi. He left the plant between 5 and 5:30 o'clock p. m. on the evening the accident occurred. We next find him at his residence on Sadie's Lane, but his route thereto is not shown in the evidence. He arrived at his home between 5:30 and 6 o'clock in a drunken condition. He drove from his home while still intoxicated, the time of his departure not being fixed by the evidence. No one testified as to his movements from the time he left home until he struck the car on the west berm of 31-W and crashed into appellee's automobile at approximately 8 o'clock p. m.

Appellant argues that the mere showing that its servant stopped at his home at the commencement of a thousand mile journey is indisputable proof that he departed from the business of his master. It would then have us infer, from the mere fact that he stopped at his home, that he proceeded therefrom to 31-W by way of Sadie's Lane instead of Sanders' Lane; that he turned north on 31-W in pursuit of a purpose of his own, that he then reversed his course but did not, in law, resume his master's business until he again reached the intersection of Sadie's Lane with 31-W. The conclusion called for would require us to enter into a realm of unreasonable speculation. He arrived at his residence at the usual hour for dinner; it may have been that he stopped there for the purpose of eating dinner; had he done so, he would have saved his master an item of expense and his deviation from 31-W would have been in his master's interest, not a departure from his scope of employment. Or he may have detoured by way of his residence for some other purpose in furtherance of his master's business. But if it should be conceded that in stopping at his home he did so purely for his own convenience, we would not be justified in speculating that he traversed Sadie's Lane instead of Sanders' Lane to 31-W, or that he turned north on 31-W in further pursuit of his own pleasure and later reversed his course and turned south. But conceding, arguendo, that he did all of these things, he certainly returned to the scope of his employment when he again headed south on 31-W, because he was then on the road he was directed to take to his ultimate destination and solely, so far as this record shows, in pursuit of his master's business. The rule is best stated in the American Law Institute's Restatement of the Law of Agency, Section 237, as follows: 'If, having in mind either his master's business and his own, or only his master's business, the servant departs too far from the space or time limits, he no longer acts within the scope of employment. The same rule applies to re-entering the employment. He cannot re-enter it, however much he desires it, until he is within the flexible limits of employment. This does not necessarily mean that he must return to the point from which he diverged when beginning to act for a purpose of his own. As he may make a detour for his own purposes without ceasing to be in the scope of employment, so in returning to the service he may re-enter the employment before reaching the limits fixed in his authorization.' (Emphasis ours.)

Certainly Derrett was within the flexible limits of his employment when he arrived at the place of the collision, even if he had departed from and re-entered 31-W at Sadie's Lane instead of Sanders' Lane.

Neither are we impressed with the argument that, since he was not employed to get drunk, he departed from the scope of his employment in doing so. If we should uphold this theory, the master would be exonerated in virtually every case of a servant's negligence, because generally a servant is not employed to commit an act of negligence. Some of the language employed in the opinion in Bray-Robinson Clothing Co. v. Higgins, 210 Ky. 432, 276 S.W. 129, seems to support appellant's theory. In that case the Trial Court had given a specific instruction calling the jury's attention to the evidence concerning the intoxication of the defendant's agent, and instructed them that, if the agent was drunk at the time of the accident and such drunkenness was the proximate cause of the accident, they should find for the plaintiff. The instruction was given under the provisions of Section 466, Carroll's Kentucky Statutes, now KRS 446.070, which provides: 'A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.'

In criticizing the instruction, this Court said that the Statute applied only in an action against the person committing the crime, and that the agent's criminal act was not imputable to the...