Fleichmann Company v. Howe
| Decision Date | 16 February 1926 |
| Citation | 213 Ky. 110 |
| Parties | Fleichmann Company v. Howe. |
| Court | United States State Supreme Court — District of Kentucky |
1. Automobiles — Injury to Pedestrian Held Result of Negligence of Truck Driver. — Injury to pedestrian, walking along edge of traveled way, at such point as not to interfere with passage of vehicles, held result of culpable negligence on part of driver of defendant's truck, which struck him.
2. Automobiles — Master Liable for Injuries by Chauffeur, where Departure from Master's Business was Temporary. — Master is liable for injuries inflicted by chauffeur, where departure from master's business was only temporary, amounting to deviation, and, to exonerate master from liability, it is essential that deviation or departure should be for purposes entirely personal to servant.
3. Automobiles — Truck Driver Deviating from Route Held Not to have Abandoned Master's Business. — Where truck driver for yeast company, after making delivery, had deviated from return route a block or two to go by his father's home for some money he had left, he had not so completely abandoned his master's business as to defeat company's liability for injury inflicted on pedestrian by striking him with truck while on such detour.
Appeal from Jefferson Circuit Court
HUMPHREY, CRAWFORD & MIDDLETON for appellant.
DOOLAN & DOOLAN for appellee.
Affirming.
Appellee, Howe, was struck, knocked down and injured by the truck of appellant company while he was walking along one of the streets of the city of Louisville, and later instituted this action against the company to recover damages. From a verdict and judgment in his favor for $1,610.00 the company prosecutes this appeal. Howe, a workman, about sixty-eight years of age, was walking east along the right-hand side of the street when the truck came up behind him and struck him. According to the evidence it gave no signal of its approach. The traveled part of the street was about 28 to 30 feet wide at the point of the accident. There were no other vehicles upon the road except an automobile approaching in the opposite direction and at the time some 40 or 50 yards away. Just why the truck struck appellee, Howe, is not explained, for he was at a place where he had a right to be and there was plenty of room on the traveled part of the street for the passage of all vehicles such as the truck. Howe says he was off the driveway walking along a grassy path at the time he was struck, but other evidence tends to show he was walking along the edge of the traveled way but not at such point as to interfere with the passage of vehicles. It, therefore, appears that the accident was the result of culpable negligence on the part of the driver of the vehicle.
Appellant, Fleichmann Company, admits the accident and injury but by way of defense says that the driver of the truck had abandoned his employment to that company and was pursuing, for the moment, business of his own — the driver had temporarily abandoned the employment of the master. The facts with respect to the abandonment are about as follows: The truck was being driven by Johnson Scudder for appellant company. He was regularly in charge of the work and had been for some time before the accident. On the day of the accident he started to work at seven o'clock in the morning. The accident happened about 9:30 or 10 o'clock. It was his duty to make special deliveries of yeast to customers of the company and to do so he employed a Ford truck on the side of which was the name of appellant company in large letters. A few minutes before the accident a customer called appellant company on the phone and ordered yeast, which required a special delivery. Immediately Scudder was sent with the truck to deliver the yeast to the groceryman at a point not far from where the accident happened. After delivering the yeast Scudder, according to his evidence, drove around Brownsboro road, on which the accident happened, to the next corner and then turned in the direction of the company's office, intending, as he says, to go by the home of his father and get some money which he had left there, and then proceed to the office. He did go back to the office and continued work that day.
It is the contention of appellant company that Scudder had abandoned the employment of the company at the time of the accident and was engaged in a trip entirely for his own benefit, and in argument it says in brief of counsel that where the servant is engaged on business of his own and is acting wholly outside of the scope of his employment and on no business of his master, the master is not responsible for the torts of the servant. In substantiation of this proposition, which we conceive to be correct, the appellant cites the cases of Tyler v. Stephens, 163 Ky. 770; Eakins v. Anderson, 169 Ky. 1; Crady c. Greer, 183 Ky. 675; Mullins & Haynes Co. v. Crisp, 207 Ky. 31; Wyatt v. Hodson, 210 Ky. 47.
Appellee Howe insists that Scudder, the driver of the truck, had not abandoned the business of the master, but was only temporarily, if at all, pursuing a matter only slightly connected with the master's business, and in support of his position says that where the existence of the relationship of master and servant is established, a departure of a block from a route of approximately forty blocks for the servant's own purpose is a mere deviation, and the master is liable for the torts of the servant occurring at such time. Further arguing he says that in this case the servant had entered the service of the master and was to return to his master's place of employment, but deviated from the route of approximately forty blocks to the extent of only one block, such deviation being for the purpose "to get money that I left," and the employee being a special deliveryman for his employer, with presumed authority to collect for such deliveries, and there being no contradiction that this money left at home was other than collections for his...
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