Gibson v. Dupree

• Decision Date: 14 December 1914
• Docket Number: 3833
• Citation: 26 Colo.App. 324,144 P. 1133
• Parties: GIBSON et al. v. DUPREE.
• Court: Colorado Court of Appeals

144 P. 1133

26 Colo.App. 324

GIBSON et al. v. DUPREE.

No. 3833

Court of Appeals of Colorado

December 14, 1914

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by John W. Dupree against W.E. Gibson, Carl A. Culver, and J.E. Nagel. From a judgment for plaintiff, defendants appeal. Affirmed on rehearing; original opinion withdrawn.

John T Bottom, of Denver (Milnor E. Gleaves, of Denver, of counsel) for appellants.

T.E Watters and Percy S. Morris, both of Denver, for appellee.

MORGAN J.

Dupree, plaintiff below, while riding on a bicycle in the streets of Denver was struck by an automobile, driven by defendant Nagel, and kept, subject to the call of the owner Evans, in the garage of the other two defendants; Gibson and Culver, employers of Nagel. Plaintiff had judgment for personal injuries for $500 against all three of the defendants, and they appealed. No point is made here as to Nagel's negligence and his liability, but it is contended that his employers are not liable for the reason that he took the Evans car and used it without right or authority, and without the knowledge of his employers or the owner and after being forbidden by his employers to take any car out of the garage for any purpose except upon the call or direction of the owner; and for the further reason that when the accident occurred he was not acting within the scope of his employment, but had departed therefrom on business of his own.

Gibson and Culver, as partners, were the proprietors of a public garage, where, as the principal part of their business, they kept automobiles for the owners, looked after them while in the garage, and sent them to the owners and sent after them, at the owners' request. Nagel was employed in the garage, and as part of his duties, he took automobiles to the owners and brought them back to the garage, and had batteries charged belonging to automobiles kept in the garage. The accident occurred while he was returning in the Evans automobile from the Carstarphen Electric Company's place of business with a battery, to which place he had taken it to have it charged. After obtaining the battery he drove the automobile to a supply house and there purchased a pair of pliers for his own use, and was on his way back to the place of his employment when the accident occurred. The evidence discloses that he took the automobile for his own convenience, because the battery was heavy and he did not want to walk and carry it, although he was supposed to walk, and that he had no authority to take it out on this occasion, or to use it, for such purpose, at any time.

The assignments of error will be disposed of under the three following questions, although the first actually includes the other two: (1) Was the servant within the scope of his employment and about his masters' business when the accident occurred? (2) Did the lower court err in excluding the evidence, offered by the employers, to the effect that they told the servant that he was not to take out of the garage any automobile without their order or the request of the owner? (3) Did the servant's deviation from the direct route back to the garage, separately, or coupled with his disobedience in using the automobile, dissolve, or suspend, the relationship of master and servant at the time of the accident, or prevent him from being, nevertheless, about his masters' business?

First. Apart from his driving the car to the supply house where he bought the pair of pliers, which will be referred to later, the facts disclose, and the jury so found, that he was about his masters' business, and within the scope of his employment, in going after the battery and in returning with it, although he was using a means of carrying it suggested and carried out by his own will and for his personal convenience, and contrary to the directions of his employers and without their consent or the consent of the owner. And as the accident occurred when he was so returning, his employers are liable for the tort committed. "This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another." Farwell v. Boston, etc., R., 4 Metc. (Mass.) 49, 38 Am.Dec. 339. Furthermore, "a master is answerable because the servant is about the master's business, and it is, on the whole, better that the master should suffer for defaults in the conduct of the business, than that innocent third persons should bear the losses that such defaults cast upon them." Huffcut's Agency (2d Ed.) p. 104, citing Pollock on Torts (5th Ed.) pp. 72, 74. It is stated in 26 Cyc. 1533, that the master is liable for the negligence of the servant if such negligence occurred "within the scope of the employment." And in the case of Phila., etc., R.R. Co. v. Derby, 14 How. 468, 14 L.Ed. 502, it is said by the United States Supreme Court that:

"The rule of 'respondent superior,' or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of, the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment. See Story on Agency, § 452; Smith on Master and Servant, 152."

It is also said, in 15 Cyc. 1534, that "the purpose of the act, rather than its method of performance, is the test of the scope of employment." It is said also in the case of Pittsburgh, etc., R.R. Co. v. Kirk, 102 Ind. 399, 1 N.E. 849, 52 Am.Rep. 675, that:

"Where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts means, reasonably intended and directed to the end, which result in injury to another, the master is answerable for the consequences, regardless of the motives which induced the adoption of the means; and this, too, even though the means employed were outside of his authority, and against the express orders of the master." Citing 2 Thomp.Neg. 889; Wood, Mast. and Ser. 593, 594.

A master is liable for the tort of his servant committed in disobedience of his master's orders, provided such disobedience does not carry the servant entirely outside the scope of his employment. For example, if the disobedience has relation merely to the manner in which an act, incident to the authorized functions of the servant, is performed. 6 Labatt's Mast. & Ser. (2d Ed.) 6894, citing Philadelphia, etc., R.R. Co. v. Derby, supra.

It is plain from these authorities that, if the accident occurred while the employé was engaged in performing one of the duties of his employment, it would make no difference that he used the forbidden means that he did use to perform such duty, so far as the plaintiff's rights are concerned, provided his employers placed him where he could, with their implied authority, by his mere disobedience, use the forbidden means. There can be no doubt that Nagel was engaged in his masters' business, and within the scope of his employment, in going after the battery and bringing it back to their place of business, and the fact that he used the automobile in the performance of such duty did not carry him outside of the scope of his employment, although the use of such means was without the authority and consent of his masters and of the owner, and against his employers' instructions. The relationship of master and servant was not thereby suspended or extinguished. This is the test: If he was about his masters' business, with possible exceptions not necessary to be discussed here. Such disobedience in using the automobile for such purpose has relation merely to the manner in which the act (going after and returning with the battery) was performed. The masters are liable for injury caused by the disobedience of the servant in so using the automobile. It is clear the employers would have been liable if the accident had occurred while the servant was taking the car to the owner, or bringing it back, and the only difference is his disobedience, which does not relieve his employers. See authorities, infra.

The many modifying circumstances, involved in a discussion of this principle, have led to some statements in the opinions specifically applicable to each particular case, not applicable to all, but, when critically examined, there is but little conflict of authority. There are cases where the instrumentality or means used by the servant did not belong to, or were not within the partial or entire control of the master, such as Goodman v. Kennell, 3 Car. & P. 167; Wilson v. Penn. R. Co., 63 N.J.Law, 385, 43 A. 894; Stretton v Toronto, 13 Ont. 139; which seem to afford an...