Eakin's Adm'r v. Anderson

• Decision Date: 07 March 1916
• Citation: 169 Ky. 1,183 S.W. 217
• Parties: EAKIN'S ADM'R v. ANDERSON.
• Court: Kentucky Court of Appeals

183 S.W. 217

169 Ky. 1

EAKIN'S ADM'R v. ANDERSON.

Court of Appeals of Kentucky.

March 7, 1916

Appeal from Circuit Court, Fayette County.

Action by the administrator of Frederick Eakin against R. T Anderson and Allen Hicks. From a verdict for the defendant R T. Anderson, the plaintiff appeals. Affirmed.

Gordan & Lourent of Louisville, J. A. Edge, of Lexington, and Pitts & McConnice of Nashville, Tenn., for appellant.

Kimball & Hunter and Hunt & Bush, all of Lexington, for appellee.

CLARKE J.

This is an action by the administrator of Frederick Eakin against R T. Anderson and Allen Hicks to recover damages for the death of said Eakin, who, while riding a bicycle, was killed at the corner of Third and Walnut streets in the city of Lexington by being run over by an automobile owned by said Anderson while being operated by said Hicks. At the conclusion of plaintiffs' evidence, a peremptory instruction was given directing the jury to find for the defendant Anderson, and this appeal is prosecuted to reverse the judgment dismissing the petition against Anderson; the peremptory having been refused and the case continued as to Hicks.

The facts are these: Hicks was Anderson's chauffeur, and upon the day of the accident had been relieved from duty for the day early in the afternoon, and after being released had made an engagement to call that evening upon a young lady who lived at 155 Walton avenue in said city. About 6 o'clock that evening, and after Hicks had made the engagement to call upon the young lady, Mr. Anderson's wife called him over the phone and gave him instructions, her right to do which is conceded, to take Anderson's automobile and go to Second and Broadway at about five minutes to nine to get her brother, Baldwin Respass, and convey him and his guests to and from a reception at the Ph nix Hotel. At 8 o'clock that evening, Hicks went to the garage on Main street where the automobile was kept, got the automobile, and went to 155 Walton avenue to inform his young lady friend that he would have to work that night and would be unable to keep his engagement with her. To reach her home, he traveled east on Main street and north on Walton avenue, a distance of 7,385 feet. After remaining 20 or 30 minutes at the home of this young lady, Hicks started, by a different route from the one over which he came, to the home of Baldwin Respass, who resided at Second and Broadway, traveling north on Walton avenue and west on Third street to its intersection with Walnut street, a distance of 5,564 feet, when the accident resulting in the death of Eakin occurred. The distance from Third and Walnut, where the accident occurred, to Second and Broadway, Respass' home, is 2,363 feet, while the distance between the garage and Second and Broadway is 997 feet. The distance traveled by Hicks from the time he left the garage to the place of the accident is 12,949 feet, and the home of Respass is almost directly between the place of the accident and the garage. The accident occurred somewhere between 20 and 10 minutes before 9 o'clock.

The question involved upon this appeal is whether Hicks, at the time of the accident, was the servant of Anderson prosecuting his business, or whether at the time he was acting outside of his employment and engaged in an affair of his own. Appellant contends that, as Hicks at the time of the accident was on his way to the home of Baldwin Respass for the purpose of performing the service required of him by his master, the relation of master and servant existed, and that the doctrine of respondeat superior is applicable. Appellee contends that, since Hicks had taken the automobile for his own purpose, and without consent of appellee, and at the time of the accident was far beyond any reasonable route from the garage to the home of Respass, the relationship of master and servant did not then exist, and he is not liable for Hicks' acts.

In support of appellant's contention, we are cited to Jones v. Weigand, 134 A.D. 644, 119 N.Y.S. 441, and Geraty v. National Ice Co., 16 A.D. 174, 44 N.Y.S. 659, which cases are stated by counsel to be perhaps the leading cases in this country supporting their contention. In the Jones Case, supra, the defendant's driver was sent with defendant's coach to an undertaker for use at a funeral. According to directions, he called for some gentleman, took him to the house of mourning, to the cemetery, and then back home. Instead of returning the coach to defendant's stable in King's county, a distance of 16 blocks by the direct route, the driver took a circuitous route, driving back into Queen's county and going several blocks out of his way, and part of the time in opposite direction from the stable. He left the coach temporarily for an errand of his own, and upon returning started up the horses, taking no heed of a little child who was playing near the step of the coach, with the result that the child was drawn under the wheels and run over. Commenting upon this state of facts, the court said:

"The master is liable only for acts done by the servant in the course of his employment as such, but mere disregard of instructions or deviation from the line of his duty does not relieve the master of responsibility. Wrongful acts are usually in violation of orders, or in deviation from the strict line of duty. The test is whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions. If the servant, for purposes of his own, departs from the line of his duty, so that for the time being his acts constitute an abandonment of his service, the master is not liable; but, to constitute an abandonment of the service, the servant must be serving his own or some other person's purposes, wholly independent of his master's business. It seems to me that the making of the circuitous route to the stable was at most a deviation, not an abandonment, of the service. While the servant deviated from the direct route, he was nevertheless engaged in taking the coach back to the stable. He combined his own with his master's purposes, but did not wholly abandon his service, except during the time when he was absent from the coach to make his call.

But, if the foregoing be doubtful, it seems plain that, when the driver returned to the coach for the purpose of taking it back to the defendant's stable, he re-entered upon his master's service, and resumed the business which he had temporarily abandoned. It is no answer to this to say that the accident would not have happened if he had not made the call. His carelessness after he had resumed his master's business was the causa causans of the accident. The leading English cases (Joel v. Morrison, 6 Carr. & P. 501, and Sleath v. Wilson, 9 Carr. & P. 607) are illustrations of mere deviation from the line of duty, while Mitchell v. Crassweller, 13 C. B. 237, and Storey v. Ashton, L. R. & Q. B. 476, were held to be cases of a total abandonment of the service. The cases cited by the respondent are not in point, and it is necessary to note only one or two of them. In Cunningham v. Castle, 127 A.D. 580, 111 N.Y.S. 1057, the defendant's evidence tended to show that the defendant had loaned the automobile to his chauffeur, and that the accident happened while the latter was using it solely for his own purposes. * * * Mitchell v. Crassweller, supra. The evidence in that case tended to show, not deviation merely, but an entire abandonment or departure from the master's business. The coachman was not returning the horses and carriage to the stable, even by a circuitous route, but was using them for purposes of his own. The Massachusetts cases may seem to support the defendant's contention. See McCarthy v. Timmins, 178 Mass. 378, 59 N.E. 1038, 86 Am.St.Rep. 490; Perlstein v. American Express Co., 177 Mass. 530, 59 N.E. 194, 52 L.R.A. 959. This case, however, may be distinguished from those by the fact that, when the accident occurred, the servant had performed his own purposes and had resumed his duty to return the coach to the stable. I do not see how the case can be distinguished from Williams v. Koehler & Co., 41 A.D. 426, 58 N.Y.S. 863, a case in this department, decided on the authority of Quinn v. Power, 87 N.Y. 535, 41 Am.Rep. 392, except that that was a much stronger case for the defendant than this."

From the above it will be seen that, where the existence of the relationship of master and servant existed, a departure of a few blocks from a direct route of 16 blocks for the servant's own purpose was held to be a mere deviation, or at the most a temporary abandonment of the service, and that, if an abandonment, the service was resumed the moment the driver had performed his own service, and that at the time of the accident he had resumed the service of the master.

In the Geraty v. National Ice Company Case, the drivers of the company's ice wagon were sent with a load of ice to be delivered at the Grand Central Station in New York City. They did not take the direct route, but deviated considerably from it, stopping at Forty-Third street and Third avenue for their own purposes. When they came back to the wagon, a cake of ice slipped off and struck plaintiff. The court in that case said:

"It is the rule, no doubt, that a master is not necessarily relieved from responsibility for an injury resulting from the negligence of his servant simply because the servant is at the time acting in disobedience to the master's order. The question in every case is whether the act he was doing was one in prosecution of his

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