Fowkes v. J.I. Case Threshing Mach. Co.

• Decision Date: 30 July 1915
• Docket Number: 2719
• Court: Utah Supreme Court
• Parties: FOWKES v. J. I. CASE THRESHING MACH. CO., et al

151 P. 53

46 Utah 502

FOWKES v. J. I. CASE THRESHING MACH. CO., et al

No. 2719

Supreme Court of Utah

July 30, 1915

Appeal from District Court, Fifth District; Hon. Joshua Greenwood Judge.

Action by John Fowkes against the J. I. Case Threshing Machine Company and another.

Judgment for plaintiff. Defendants appeal.

REVERSED and remanded.

C. S Varian, for appellant.

APPELLANT'S POINTS.

The master is not liable for injuries occasioned to a third person by the negligence of his servant, while the latter is engaged in some act beyond the scope of his employment, for his own purpose, or for the purpose of another, although he may be using the instrumentalities furnished him by the master with which to perform the ordinary duties of his employment. (Slater v. Advance Thresher Co., 97 Minn. 305; 107 N.W. 133; Morier v. R. R. Co., 31 Minn. 351 17 N.W. 952.)

The phrase, "in the course (scope) of his employment," is not used synonymously with "during the period of his employment." If it were otherwise, the master would be liable for all of the tortuous acts of his servant during the period of service. (Cases last cited.) The test must always be, was the servant acting within the scope or course of the employment at the time of the acts complained of, and, therefore, it would seem to follow, as said by an English court, "that a servant can only be acting within the employment of the master so long as he is doing some act with his master's assent." (Storey v. Asnton, 38 L. J. Q. B. 223.)

A master has the right to select and choose his agents, and to determine himself, and to assign to the servants so selected, their respective duties, and no assumption by an employee of duties not assigned to him will bring those duties within the course or scope of his employment as defined by the master, and when an act is not within the scope of a servant's employment, it can not be within either the express or implied authorization of the master. (Lima Co. v. Little, 67 Oh. St. 91; 65 N.E. 861-864.)

J. H. McKnight, for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plantiff brought this action to recover damages for alleged personal injuries. He had judgment against both defendants. They separately appeal. The accident occurred near Mona, Juab County, Utah, on a highway, where the plaintiff was driving a team of horses and wagon, and where the defendant Roberts passed him in an automobile. The alleged negligence is that Roberts, before attempting to pass the plaintiff, failed to sound the horn of the automobile, traveled at an excessive and negligent speed, "about twenty miles an hour," passed the plaintiff on the wrong side, and, in passing, struck one of plaintiff's horses with the automobile, by reason of which the plaintiff's team became frightened and unmanageable, ran away, threw the plaintiff off the wagon and injured him. It further is alleged that Roberts was an agent and servant of the other defendant, the Case Company, and, as such, at the time of the injury, was in the course of his employment, driving the automobile for it. The contention made by Roberts is that the evidence is insufficient to establish the alleged negligence and that error was committed in the charge to the jury. The same contentions are made by the Case Company, and, in addition, that the proof fails to show that it was responsible for Roberts' acts in driving and operating the automobile.

The plaintiff had a small load of hay on the wagon and was traveling south. The highway was raised in the center and sloped on either side to a ditch. It was about 150 feet wide; the traveled portion of it about twenty feet wide. The plaintiff was seated on the hay on the front part of the wagon, and, as he testified, was driving along about the center of the road. He did not hear the automobile horn sounded, and had no knowledge of the presence of the automobile until in passing him on the right, or west, side it was about even with the horses. His team became frightened, the off horse lunging and crowding towards the other horse, and became unmanageable and ran away, throwing the plaintiff out and injuring him. Two other witnesses for the plaintiff, two boys, testified that they were loading brush in a field about seventy feet from the road and about seventy-five yards from the place of the accident. They saw the automobile approach, heard no "toot of the horn," saw it pass the plaintiff on the right, or west, side, and that it was driven by Roberts, with whom was a woman companion, saw the team frightened and run away, the plaintiff thrown out, and the automobile pass on without stopping. One of them testified that the speed of the automobile, as it passed the plaintiff was not slackened. When asked how fast it went, he answered, "About like they always go." Another witness for the plaintiff testified that he saw the automobile pass his place about a quarter of a mile south of the place of the accident. He was asked by plaintiff's counsel: "How fast was the auto traveling then as compared with the speed of a train?" He answered: "It was traveling much faster than a passenger train generally travels passing our place." On cross-examination he was asked and he answered:

"Q. And you say the auto was going faster than a railroad train? A. In my judgment. Q. How fast does the railroad train go that you measure by? A. I don't know. I don't know the time of the train. Q. Only you think it was faster than a railroad train? A. Yes, sir; it would be going faster. Q. Is there a station at Mona? A. Yes, sir. (About three miles by wagon road to his house, but the train passed his house within a half mile.) Q. Of course, you don't know how fast the automobile was traveling when it came up behind the wagon?. A. No, sir. Q. You don't know that? A. No, sir. Q. It was a quarter of a mile away when you think it was going faster than a railroad train, and you don't know how fast a railroad train runs, do you? A. I don't know.'

On redirect he was asked and he answered:

"Q. Now as to the speed the train travels--did you ever ride on a train from Mona here (Nephi), or here to Mona? A. Yes, sir. Q. How far is it from here to Mona? A. Seven and a half miles. Q. How long does it take a train to travel that? A. About ten or twelve minutes, I guess. Q. Not more than fifteen minutes? A. Not more than fifteen minutes. Q. When you were thinking about the speed of a train, that is the speed you were thinking? A. Yes, sir. Q. When the train travels between here and Mona? A. Yes, sir."

That is all the proof on the part of the plaintiff to show the speed of the automobile at the time of the injury. This witness also testified that as soon as the automobile had passed him he went back to the place of the accident and there saw where the automobile had passed the plaintiff's team and wagon; that the automobile tracks came back into the road about ten feet from where the wagon tracks had left the road; that the distance between the automobile track and the wagon track where the letter left the road was about three feet; that the nearest horse track at that place to the automobile track was about five inches; and that the fender of the automobile extended about five inches over the wheel of the automobile. That was all the evidence to show that the automobile struck one of plaintiff's horses.

The Case Company, a corporation of Racine, Wis., was engaged in manufacturing and selling threshing machines and automobiles. It had a local agent or dealer at Oasis, Millard County, a railroad station about ninety-two miles south of the place of the accident, and about 170 miles south of Salt Lake City. His name is Huff. Roberts was a salesman of the Case Company. He lived at Grantsville, Utah, a town about twenty miles west of Salt Lake City. The character of his employment was evidenced by a written contract between him and the Case Company. The material parts of it are: The Case Company "does hereby engage the services" of Roberts, "as a salesman, expert and collector," for a stated time and at a stated monthly salary, "and actual traveling expenses when absent from home"; Roberts "to devote his whole time and attention to the services of" the Case Company "as salesman, expert and collector or in any other capacity in which" the Case Company "might require his services." A Case automobile was sold to one Morgan, residing at Oasis. He purchased it from Huff, for $ 1,272. He, however, gave Huff his check for $ 1,625 and about $ 75 in cash for extras. Huff threw off his commission and paid back to Morgan the difference between $ 1,625 and $ 1,272. One of the Case Company's printed automobile "order blanks" was filled out. So far as material, the order is:

"Automobile Order Blank.

"Oasis, Utah, April 12, 1913.

"J. I. Case T. M. Company, Racine, Wisconsin: You will please ship or deliver on or before the 15 day of April, 1913 (or as soon thereafter as you can furnish for transportation or delivery), to Salt Lake (name of railway station), or other convenient station in the state of Utah, in care of J. I. Case T. M. Co. (dealer or company), one Case 30 H touring automobile to be equipped," etc., and "for which I agree to pay the sum of $ 1,272.00 and freight charges thereon from the factory. I hand you herewith $ 1,272." as the purchase price.

After further provisions, the order recites:

"We are not responsible to the purchaser of our goods for any undertakings, promises or warranties made by our representatives, beyond those expressed herein. * * * Our responsibility ceases when we deliver cars to a railroad company and have its receipt for them in good order."

The order contains further provisions not here material. It is signed, not by Morgan, but...