Healey v. Cockrill

• Decision Date: 25 March 1918
• Docket Number: 242
• Citation: 202 S.W. 229,133 Ark. 327
• Parties: HEALEY v. COCKRILL
• Court: Arkansas Supreme Court

202 S.W. 229

133 Ark. 327

HEALEY v. COCKRILL

No. 242

Supreme Court of Arkansas

March 25, 1918

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Price Shofner, J. I. Trawick and G. T. Owens, for appellants.

1. It was error to instruct a verdict for appellee. The employer is liable for the acts of his servant. A slight detour or deviation, even for a purpose of his own, does not relieve the master from liability. The servant was acting within the scope of his authority. 111 Ark. 212. Unless the deviation or detour is unusual, the master is liable. 27 L. R. A. 161; 27 Id. 161; 100 S.W. 511; 76 A. 219; 164 S.W. 236; 144 P. 1133; 61 So. 374; 9 L. R. A. (N. S.) 1033; 96 Ark. 365; 62 Id. 116; 153 P. 219.

2. Whether the servant was acting within the scope of his employment, or not, was a question for the jury. 75 N.J.L 240; 67 A. 188; 164 S.W. 236; 100 N.E. 1006.

3. There was error in refusing to permit counsel to interrogate the servant as to his using the car on previous occasions. 105 N.E. 1552; 100 Id. 1006.

4. The court erred in its refusal to instruct a jury as requested. 70 L. R. A. 627.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellee.

1. This case falls squarely within the rule in 111 Ark. 212; 93 Id. 398.

2. A verdict was properly instructed. 131 P. 1165; 93 Ark. 398; 82 A. 388; 124 N.W. 1016; 71 A. 535; 66 Id. 525; 111 N.E. 646; 183 S.W. 217; 153 N.W. 753; 108 N.E. 853; 88 A. 134; 60 Id. 506; 75 Id. 102; 88 Id. 973; 170 S.W. 403.

3. There was no prejudicial error. 73 Ark. 410; 97 Id. 567; 123 Id. 554; 126 Id. 617.

OPINION

McCULLOCH, C. J.

Appellants were plaintiffs below in two separate actions instituted against appellee to recover damages on account of injuries resulting from a collision between an automobile in which appellants were riding and another automobile owned by appellee and driven by her servant. The two actions were consolidated and tried together, and after all the testimony had been introduced the court gave a peremptory instruction in favor of appellee.

The liability of appellee turns on the question whether or not the driver of her car was, at the time of the collision, acting within the scope of his employment, or whether he had completely abandoned the business of the employer and was acting entirely for himself. There is no material conflict in the statements of the witnesses concerning that feature of the case. If, under the facts proved in the case, appellee was responsible for the acts of the driver of her car at the time the collision occurred, then the case should have gone to the jury, for the testimony was sufficient to establish negligence on the part of the driver. Appellant Grace was operating a jitney on Main Street in the city of Little Rock and was driving the car himself at the time of the collision under inquiry, and Mrs. Healey, the other appellant, was a passenger in the car. The evidence tended to show that appellant Grace was handling his car with care and was not responsible for the collision. As the jitney car came south on Main Street appellee's car, in charge of her driver, with no one else in it, came along Tenth Street at great speed approaching Main Street, and in crossing the street ran into the car occupied by appellants. Serious personal injuries were inflicted upon the occupants of the jitney car as well as damage to the car itself.

Appellee's residence was situated on the east side of Scott Street (the first street east of Main Street) about the middle of the block between Ninth and Tenth Streets. The garage on the premises was situated in the rear of the premises and opened out on the alley running north and south through the middle of the block. Louis Jordan, who was driving the car at the time appellant was injured, had been driving for appellee for some time, and whenever appellee needed the car she instructed the driver to bring it from the garage around to the front of the house on Scott Street. The customary route in obeying the orders to bring the car out was to drive into the alley from the garage and turn south to Tenth Street, thence west on Tenth to Scott, and thence north on Scott a half block to the front of the house. It is seen that in following this route in the observance of the traffic rules it was not necessary to cross the street at any point, and that it is just a block around from the garage to the front of the house. On the day the collision occurred appellee notified the driver to get the car ready for her use on a pleasure drive and when the hour arrived for the trip, appellee called from the back door or window to the driver, who was then in the garage, to bring the car around to the front. The driver, instead of obeying the directions of his employer, and without her knowledge, went on a trip to a drug store to buy cigarettes before placing the car in front of appellee's residence in accordance with her instructions. He turned the car north on the alley and drove out into Ninth Street, thence west a block to a drug store on the north-west corner of Ninth and Main streets where he got out of the car and purchased cigarettes, and when he returned to the car he drove west a block to Louisiana Street, thence south a block to Tenth Street and thence east a block to Main Street where the collision occurred. The driver was, when the collision occurred, returning from his trip to the drug store on his own business and he intended at the end of the trip to put the car in front of his employer's residence in accordance with her instructions. General principles of law applicable to the facts of this case have been repeatedly stated by this court. In the case of Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298, the court said: "The rule is firmly established that the master is civilly liable for the tortious acts of his servant, whether of omission or commission, and whether negligent, fraudulent or deceitful, when done in the line of his employment, even though the master did not authorize, or know of such acts, or may have disapproved of or forbidden them. But the act must be done not only while the servant is engaged in his master's service, but it must pertain to the particular duties of that employment." That language was quoted with approval by this court in the more recent case of Robinson v. St. Louis, Iron Mountain & Southern Ry. Co., 111 Ark. 208, 163 S.W. 500, where we said: "An act is within the scope of the servant's employment, where necessary to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master. The purpose of the act, rather than its method of performance, is the test of the scope of employment." And in Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439, we said: "The mere fact that he was in the service generally of the master or that the servant was in possession of facilities afforded by the master in the use of which the injury was done would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. And if the servant steps aside from the master's business to do an independent act of his own and not connected with his master's business, then the relation of master and servant is for such time, however short, suspended; and the servant, while thus acting for a purpose exclusively his own, is a stranger to his master for whose acts he is not liable."

According to the principles thus announced, appellee was not liable for the negligent act of her servant while pursuing...