Gorman v. Jaffa

• Decision Date: 03 December 1929
• Docket Number: No. 159.,159.
• Citation: 227 N.W. 775,248 Mich. 557
• Parties: GORMAN v. JAFFA et al.
• Court: Michigan Supreme Court

248 Mich. 557

227 N.W. 775

GORMAN

v.JAFFA et al.

No. 159.

Supreme Court of Michigan.

Dec. 3, 1929.

Error from the Circuit Court, Oakland County; Glenn C. Gillespie, Judge.

Action by Ray Forman against Lewis A. Jaffa, doing business as the Huron Motor Sales Company, and another. Judgment for plaintiff, and defendant named brings error. Affirmed.

Argued before the Entire Bench.Beaumont, Smith & Harris, of Detroit (Albert E. Meder and Fred G. Cadwell, both of Detroit, of counsel), for appellant.

George Cram, of Pontiac, and Bresnahan & Groefsema, of Detroit, for appellee.

POTTER, J.

Plaintiff sued Lewis A. Jaffa, doing business as Huron Motor Sales Company, Frank Drouillard, William Jaffa, and Thomas H. Maynard for damages resulting from injuries caused by defendants' negligence. Proper service was not made upon William Jaffa. At the conclusion of the testimony judgment was directed in favor of Thomas H. Maynard, defendant. The case was submitted to the jury as to the liability of Lewis A. Jaffa doing business as Huron Motor Sales Company, and Frank Drouillard. Plaintiff had judgment for $15,000, and defendant Lewis A. Jaffa, doing business as Huron Motor Sales Company, alone brings error.

October 31, 1928, defendant Lewis A. Jaffa was operating a garage and salesroom for the sale of automobiles in the city of Pontiac under the name of Huron Motor Sales Company, which was then in charge of his manager, Thomas H. Maynard. Defendant Drouillard was the owner of the building and left his automobile in the garage to have service performed upon it, and was loaned by Maynard an automobile to use during the time his car was in the garage. At that time Maynard had some conversation with Drouillard about using his automobile during the time Drouillard was using the other car. Maynard claims Drouillard gave him permission to use the car generally if necessary. Drouillard claims he gave him permission only to use his car for the purpose of making a demonstration. Drouillard's car was placed on the wash rack in the service part of the garage and left in reverse gear by an employee of the Huron Motor Sales Company, and shortly thereafter plaintiff came to defendant's salesroom, but whether as a prospective purchaser of an automobile or for the purpose of visiting with the salesman West is in dispute. While plaintiff was sitting in the salesroom with his back toward large double doors leading from the garage into the salesroom, William Jaffa, a bookkeeper and general office clerk in the employ of the Huron Motor Sales Company, asked and received permission from Maynard to go to lunch and to use Drouillard's car, then setting on the wash rack, for that purpose. According to the testimony of William Jaffa, he examined the gear shift, and thinking the gear was in neutral stepped on the starter. The car moved rapidly backward and struck the doors behind plaintiff, causing them to bulge inward and a portion of the frame to be torn off. Plaintiff claims he was struck on the back of the head by the doors. Defendants deny this. Plaintiff walked outside the garage after the accident, complained of feeling dizzy, was subsequently removed to the hospital in a police ambulance, and was confined in the hospital for a long period of time. Since the alleged injury plaintiff has been partially paralyzed, confined to his bed, and under the care of a nurse and physician. Defendant claims plaintiff was not injured and is suffering with hysteria. Plaintiff claims his injuries are permanent.

[1] Defendant assigns many errors, most of which are based upon the proposition that William Jaffa was not acting within the scope of his employment at the time plaintiff was injured, and that a verdict should have been directed in favor of defendants. The error principally relied upon is that the proof shows that William Jaffa who operated the car at the time of plaintiff's injury, though an employee of the defendant at the time of the injury, was not engaged in the performance of any work for defendant, but was on his way to lunch; that his operation of the automobile was not in the course of his employment, and therefore defendant Huron Motor Sales Company is not liable to respond in damages to plaintiff. The question of whether plaintiff was a licensee or an invitee was properly submitted to the jury, and it found that plaintiff was there as an invitee and its finding on this record is conclusive.

Defendant relies upon Boner v. Eastern Michigan Power Company, 193 Mich. 629, 160 N. W. 453;Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316;Murphy v. Kuhartz, 244 Mich. 54, 221 N. W. 143, 144; and other cases.

In Boner v. Eastern Michigan Power Company, it was held that plaintiff was not, at the time of his injury, acting within the scope of his employment. The opinion suggests that if plaintiff had remained on defendant's premises and had been in charge of any of his employer's property or had been subject to the employer's orders, the holding might have been otherwise.

In Brinkman v. Zuckerman, defendant's chauffeur borrowed defendant's automobile, and while operating it in his own business, and not about defendant's business or near his place of business, negligently ran defendant's automobile against the front of plaintiff's store. The proof showed the chauffeur was acting entirely on his own initiative, away from defendant's premises, not on defendant's business, and defendant was held not liable.

In Murphy v. Kuhartz, plaintiff brought suit to recover damages claimed to have been caused by the negligence of defendant's employee. Defendant was engaged in the cartage business. One Metz was the driver of one of defendant's trucks. On the day of the accident Metz was engaged in delivering merchandise. Instead of returning from the last point of delivery to the warehouse, he proceeded a considerable distance in an opposite direction from the warehouse to his home where he had dinner, and then began his return to the warehouse. The defense was that Metz at the time of the injury was not acting within the scope of his employment. The trial court directed a verdict for defendant. It is said: ‘When the accident happened, he had accomplished his personal purpose and was well on his way by a direct route to the warehouse. So, assuming that in going to his dinner he temporarily abandoned his master's business, the question is: Had his service been resumed at the time of the accident? * * * There are cases which hold that where a servant in driving his master's truck so deviates from his regular route as to suspend the relation of master and servant, it is immediately restored when he starts to return. * * * But by better authority it is held that the relation of master and servant is not restored until he has returned to the place where the deviation occurred or to a corresponding place, some place where, in the performance of his duty, he should be.’

All of these cases are clearly distinguishable from the case at bar.

In Broderick v. Detroit Union Depot Co., 56 Mich. 261, 22 N. W. 802, 805,56 Am. Rep. 382, plaintiff, an employee, was injured during intermission for dinner. It was claimed the relation of master and servant did not exist between plaintiff and defendant at the time of the injury. It is said: ‘It does not follow that because plaintiff was given an intermission from work of an hour and a half for dinner, he ceased during that time to be the servant of defendant. If during that time he had in his care or custody any of his master's property requiring his attention and oversight, or if called upon to perform work by the master, or by one having authority to command his service, the relation would still exist, arising in the one case from the duty to properly care for the property of the master, and in the other from the duty to perform the service.’

In Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270, 274,18 Am. St. Rep. 441, one Root, an employee of the iron company employed at its iron furnace at Negaunee, was injured. It was claimed that Root was not in the employ of the company at the time he was injured. It is said: ‘Conceding that the deceased had started to go down town to attend to some private business of his own, which he was in the habit of doing every day, or nearly every day, still, when this accident occurred, he must be considered to have been in the employ of the defendant. There was no stated time in which he was authorized by his employment to leave the service of the defendant and go down town, and attend to his own business. It would appear that his duties at the furnace were not so exacting but that he could go about his private business at times without detriment to the defendant, and there is no doubt but he was permitted to do so. But his employment by the defendant was such that he was not authorized to subordinate its business to his own, and at any time during working hours when he was on defendant's premises his duty was to look after and perform his duties there. His duties were multifarious, and if, at any time, after he had started to go down town and while on defendant's premises, any need of his services had arisen, it would have been his duty, under his employment, to have at once stopped and given such services. He was not permitted at any time to say in his own mind, ‘I will now leave the employment of the company at once, and go about my own business,’ regardless of what might occur on the premises before he left them requiring his care and attention under his employment. He was not out of the employment of the defendant until he was off its premises. Broderick v. Depot Co., 56 Mich. 261, 268, 22 N. W. 802 .'

Brink v. J. W. Wells Lumber Co., 229 Mich. 35, 201 N. W. 222, arose under the Workmen's Compensation Act. The question was whether plaintiff was, when injured, within the scope of his employment. It is there said:

‘Plaintiff was on the premises of the employer, going from his work,...