Foote v. Huelster

• Court: Michigan Supreme Court
• Writing for the Court: WIEST
• Citation: Foote v. Huelster, 272 Mich. 194, 261 N.W. 296 (Mich. 1935)
• Decision Date: 03 June 1935
• Docket Number: No. 81.,81.
• Parties: FOOTE v. HUELSTER et al.

272 Mich. 194

261 N.W. 296

FOOTE

v.HUELSTER et al.

No. 81.

Supreme Court of Michigan.

June 3, 1935.

Action by Thomas E. Foote, administrator of the estate of Horace L. Foote, deceased, against Alice A. Huelster and Don King. Judgment for plaintiff, and defendants appeal.

Reversed without new trial as to defendant Alice A. Huelster; reversed and new trial granted as to defendant Don King.Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Dunham & Sherk, of Grand Rapids, for appellants.

McAllister & McAllister, of Grand Rapids, for appellee.

WIEST, Justice.

The afternoon of July 14, 1933, at the intersection of Morris avenue and Logan street in the city of Grand Rapids, an automobile, owned by defendant Alice A. Huelster, and driven by defendant Don King, a licensed driver employed by Mrs. Huelster, and an automobile driven by Horace L. Foote, plaintiff's decedent, came into collision and Mr. Foote received injuries, from which he died two days later without regaining consciousness.

This suit was brought to recover damages in behalf of Mr. Foote's estate and, upon trial by jury, resulted in a verdict for plaintiff against both defendants and judgment thereon. Defendants appeal, and we will first consider the errors assigned in behalf of Mrs. Huelster.

Mrs. Huelster employed King to drive her automobile and, on the day of the accident, he drove her to the home of her daughter, and there she directed him to go to another part of the city on an errand and return for her. King deviated from the direct route of his errand, and while off the route was accosted by a friend who requested King to drive him to a mentioned foundry in order that he might obtain a check. King acceded to the request and, while accommodating his friend, the accident happened.

At the close of the proofs, the facts mentioned appearing in evidence, counsel for Mrs. Huelster moved for a directed verdict in her favor. This was denied, and presents claimed error.

It appears that the driver not only deviated from the route of his directed employment but also departed from the scope of his employment. At the time of the accident King was using his employer's automobile for the accommodation of a friend. He was not then engaged upon his employer's business or on the course of her errand, but upon his own purpose. A servant may deviate somewhat from the direct route without releasing his employer from liability, but if he turns aside from the business or errand of his master to engage in some purpose of his own or, as in the case at bar, to accommodate a friend, it is more than a mere deviation and severs the relation essential to fasten liability upon his master for his negligence.

As said in Dunne v. Hely, 104 N. J. Law, 84, 140 A. 327, 328: ‘It is to be observed that it is not the circumstance of a deviation made from the direct route that determines the question of liability of a master for the tortious act of his servant, but, rather, whether the act of deviation per se was so disconnected from the master's service as to exonerate him from liability.’

The accident happened after King departed from his employer's business and while he was driving for the accommodation of his friend. King not being on his employer's business at the time and place of the accident and using the automobile for his own purpose to accommodate his friend, Mrs. Huelster was entitled to a directed verdict in her favor.

There was evidence from...