Greenberg v. Lotz Asbestos Co.

• Decision Date: 10 July 1929
• Citation: 146 A. 834,109 Conn. 441
• Court: Connecticut Supreme Court
• Parties: GREENBERG v. LOTZ ASBESTOS CO.

146 A. 834

109 Conn. 441

GREENBERG v. LOTZ ASBESTOS CO.

Supreme Court of Errors of Connecticut.

July 10, 1929

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Action by Ida Greenberg against the Lotz Asbestos Company to recover for personal injuries alleged to have been caused by the negligence of defendant's employee, tried to the court. Judgment for defendant, and plaintiff appeals. No error.

Edwin M. Ryan, of Hartford, for appellant.

M Joseph Blumenfeld and David R. Woodhouse, both of Hartford for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

On August 13, 1927, at about 5:30 o'clock in the afternoon the plaintiff, while walking northerly on the west sidewalk of Windsor street in Hartford at a point about 5 blocks north of the intersection of Main, Morgan, and Windsor streets, was struck from behind by a motortruck owned by the defendant and operated by one William Griggs, and suffered serious personal injuries, caused solely by his negligence, for which she seeks to recover of the defendant damages. The vital question on the appeal is whether at the time of the accident Griggs was acting within the scope of his employment with the defendant. Errors predicated upon plaintiff's motion to correct are not well taken; if all of the claimed corrections were granted, they would be ineffective in changing the conclusion reached by the trial court.

A summary of the facts is essential to the determination of the vital, indeed, the only substantial, ground of this appeal. On July 31, 1927, Griggs had been employed by the defendant as a substitute for the regular driver of defendant's delivery truck for a definite period of two weeks, which by their contract of hire terminated at noon on August 13, 1927. Before noon of this day Griggs had been paid by defendant all wages owed him for his work for the period of his hiring. A few minutes before noon of this day, Griggs returned to the defendant's warehouse with the truck, and was ordered by the acting foreman of defendant to drive to the Y. D. garage on Windsor avenue in Hartford where defendant kept the truck when it was not in use, and to leave it there. Griggs was then told that he need not report further for duty, since the regular driver would return on Monday. The defendant was not doing any business on this afternoon, and its place of business was not open during this time. The shortest route from the defendant's warehouse to the Y. D. garage, and the customary route taken by Griggs when he drove the truck from the warehouse to the garage, was: Part of a block south on Windsor street to Canton street; thence westerly on Canton street 3 blocks to Windsor avenue, and thence southerly on Windsor avenue half a block. Upon receiving his orders, Griggs drove south on Windsor street to Canton street; thence westerly on Canton street one block to Bellevue street; and thence northerly on Bellevue street about half a block north of Canton street. where he lived. When Griggs turned into Bellevue street, he deviated from the shortest and customary route to the garage, and did so in violation of his express instructions, solely for purposes of his own, which had nothing to do with his employer's business. Griggs went into his house to change his clothes and have dinner, and then at about 1 o'clock in the afternoon, with three friends, drove his truck from his house to Windsor, for the purpose of getting his sister, whom he did not find there, and thence he drove to Windsor Locks, in all a distance of 12 or 13 miles. He then went down the east side of the Connecticut river to East Hartford and on to Hartford to the junction of Main and Morgan streets. When Griggs arrived in Hartford, he stopped at a point 3 1/2 blocks from the defendant's garage and on a direct route to his own home on Bellevue street. He was on his way at the time of the accident to the Y. D. garage, intending to leave the truck there. From the time Griggs turned into Bellevue street until the accident, he was not using the truck for any purpose of benefit to defendant, and was not its agent during this time.

The plaintiff claimed upon the trial, as matter of law, that, although Griggs had deviated from his employment, and while driving from his home, and, up to his return to Main and Morgan streets, had continued such deviation, at the time of the accident he had returned to the scope of his employment, since he was then proceeding with the intention of returning the truck to the Y. D. garage pursuant to the express orders of the defendant. The rule governing the responsibility of a master for the negligent acts of his servant has never been more accurately or comprehensively stated, at least by this court, than in Stone v. Hills, 45 Conn. 44, 47 (29 Am.Rep. 635): " The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions the servant alone is responsible."

" This law." we state in Loomis v. Hollister, 75 Conn. 718, at page 722, 55 A. 561, 563, " is based on a rule of public policy, which declares that substantial justice is, on the whole, best served by making a master responsible for the injuries caused by his servant acting in his service, when set to work by him for his own benefit." A deviation by the servant from the scope of his usual employment, when done by the express or implied direction of the master for his business, or another's will not relieve the master from liability for the negligent act of the servant, since he has extended the scope of the servant's employment to the new business. A deviation from the employment arising either through the negligence, heedlessness, or disobedience of the servant, or for his own business, purpose, or pleasure, which is slight and not unusual, while he is still engaged upon his master's employment, will not relieve the master from responsibility. Mechem on Agency (2d Ed.) § 1900; note, 22 A.L.R. 1404. In a deviation of this character, there is no abandonment of the employment, either temporary or permanent, merely a lapse from, or a cessation or suspension of, the employment, while the relation of master and servant continues during the slight interruption of its fulfillment. In a case where the deviation is clearly of this character, the court may, and should, determine as matter of law that the servant was within the scope of his employment. Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am.St.Rep. 361; Loomis v. Hollister, 75 Conn. 718, 722, 55 A. 561; Schrayer v. Bishop, 92 Conn. 677, 104 A. 349; Perry v. Haritos, 100 Conn. 476, 124 A. 44; Butler v. Hyperion Theatre Co., 100 Conn. 551, 560, 124 A. 220. " But in by far the greater number of cases * * * it has been" held to be a question " of fact * * * depending upon the degree of deviation and all the attendant circumstances." Ritchie v. Waller, supra, at page 161 of 63 Conn. (...