George v. Carstens Packing Co.

• Decision Date: 23 June 1916
• Docket Number: 13276.
• Citation: 91 Wash. 637,158 P. 529
• Court: Washington Supreme Court
• Parties: GEORGE et ux. v. CARSTENS PACKING CO.

158 P. 529

91 Wash. 637

GEORGE et ux. v. CARSTENS PACKING CO.

No. 13276.

Supreme Court of Washington

June 23, 1916

Department 2. Appeal from Superior Court, Thurston County; D. F. Wright Judge.

Action by Norman E. George and wife against the Carstens Packing Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

T. M Vance, of Olympia, for appellant.

Troy &amp Sturdevant, of Olympia, for respondents.

PARKER J.

The plaintiffs, George and wife, seek recovery for personal injuries and also injuries to their automobile, which they claim resulted from the negligent operation of an automobile delivery wagon of the defendant Carstens Packing Company while in charge of one of its employés. Trial in the superior court sitting with a jury resulted in verdict and judgment in favor of the plaintiffs for the sum of $900, from which the defendant has appealed to this court.

There seems to be almost no dispute as to the detail facts, though as we proceed we think it will appear that there is ample room for honest difference of opinion as to the ultimate fact as to whether or not appellant's employé in charge of its automobile was, at the time respondents were injured, acting within the scope of his employment so as to render appellant liable which is the only question of serious moment here. At the time in question, appellant owned and operated a market at the corner of Fourth and Washington streets in the city of Olympia. Its automobile delivery wagons were kept at the Knox garage at the corner of Third and Franklin streets, being one block east and north of the market. Appellant's employés having charge of its automobile delivery wagons were required to take and leave them at the Knox garage upon finishing the deliveries of each day. Fourth street runs east and west, Third street being parallel therewith and the next one to the north.

One of appellant's customers was the Fir Tree Lumber Company, having its place of business some 12 miles southeast of the city, to whom appellant made deliveries of goods once or twice a week in the evenings after business hours at the market. About 6 o'clock of the evening of October 22, 1914, one Husk, appellant's employé, in accordance with the usual custom and under instruction from his superiors, started with one of appellant's automobile delivery wagons to make delivery of goods to the Fir Tree Lumber Company. One Sheehan another employé of appellant, went along with Husk, evidently without being specially directed so to do, but merely for a ride and to keep Husk company. It was already dark when they started. They left and returned to the city by way of Main street, running directly south. Upon their return after a few hours' absence from the city, they stopped for a moment at the stable of appellant situated on the alley next south of Fourth street, about half a block distant from the rear of the market. Husk concluded that while taking the automobile to the Knox garage he would take Sheehan to his home near Fourth street, some eight blocks east of the market. Mentioning this fact to Sheehan, the latter mildly protested, or rather suggested that it might not be the proper thing to do. However, Husk concluded it would be all right to do so, so far as his duty as an employé of appellant was concerned. They then proceeded east on Fourth street passing Franklin street, on which the Knox garage is located, one block to the north. Arriving at Sheehan's home he was left there and Husk, returning west on Fourth street, came into collision with respondents' automobile, inflicting the injuries for which they seek recovery. This occurred on Fourth street, several blocks east of Franklin street, at which point Husk would ordinarily have turned off Fourth street to the Knox garage one block north.

It was one of the rules of appellant, known to all of its employés, that they were not permitted to use the automobile delivery wagons for any purpose personal to themselves or other than in the business of appellant. It was not, however, against the rules of appellant for the employé making deliveries to the Fir Tree Lumber Company at night to take with him another employé. Indeed, this seems to have been frequently done and apparently with the knowledge of appellant's manager. It is readily conceivable that the taking of another employé along, in view of the distance from the city and such delivery being made in the nighttime, that such a course might be desirable in the interest of appellant, though it was permissible only, and not required as a part of any employé's duty.

Counsel for appellant contends that Husk was acting independent of and outside of the scope of his employment in the taking of Sheehan to his home, and would be so outside the scope of his employment until he returned to the Knox garage, or at least until he returned to Franklin street, the point of departure from the ordinary route from the stable to the Knox garage, and that the trial court erred in declining to so rule, as a matter of law, upon appellant's motions and request for instructed verdict. Counsel for respondents contend that, under all the circumstances shown, Husk was not acting outside the scope of his employment and that in any event if he was so acting, from the time he left the stable until he left Sheehan at his home, he, Husk, upon starting to return from Sheehan's home resumed his duty as appellant's employé in that he was then taking the automobile delivery wagon in his charge to the Knox garage for appellant; it being argued that these questions were in any event questions of fact for the jury to decide.

The automobile delivery wagon, being the property of appellant and at the time of respondents' injuries in charge of Husk, appellant's employé, and no contention being here made but that respondents' damage resulted from Husk's negligence, it is plain under our decisions that appellant is rendered liable, unless it be shown that Husk was at that time acting outside the scope of his employment. Knust v. Bullock, 59 Wash. 141, 109 P. 329; Burger v. Taxicab Motor Co., 66 Wash. 676, 120 P. 519; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Switzer v. Sherwood, 80 Wash. 19, 141 P. 181.

The trial court declined to decide the case as a matter of law in appellant's favor, but by its instructions, in effect submitted to the jury the question of Husk having departed from the course of his employment in taking Sheehan to his home, and also the question of Husk having resumed his employment and acting within the scope thereof upon leaving Sheehan at his home and returning...