Hickson v. W. W. Walker Co.

• Decision Date: 03 March 1930
• Citation: 149 A. 400,110 Conn. 604
• Court: Connecticut Supreme Court
• Parties: HICKSON v. W. W. WALKER CO. ET AL.

149 A. 400

110 Conn. 604

HICKSON v. W. W. WALKER CO. ET AL.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Action by Anna Hickson against the W. W. Walker Company and another for damages for personal injuries alleged to have been caused by the negligence of the defendants, brought to the superior court in Hartford county and tried to the court. Judgment for the defendant Ryan and for the plaintiff against the defendant the Walker Company, and appeal by the defendant company.

Error judgment reversed as against the Walker Company, and the superior court directed to render judgment for the defendant the W. W. Walker Company.

The court found the following facts: At the time of and prior to the accident the defendant the W. W. Walker Company operated two grocery stores--one on Farmington Avenue in West Hartford, the other, its main store, on Main street south of Pearl street in Hartford. The defendant operated a truck from its Hartford to its West Hartford branch store usually in carrying goods there and returning empty. Ahern had been in the employment of the defendant in driving this truck between the two stores about five months, and occasionally he made general deliveries. At the beginning of his employment, the defendant instructed him as to his duties, and specifically forbade him to use any of its trucks either for the purpose of his own errands, such as going to his home for lunch, or for the purpose of carrying or transporting any of the other employees of the company. The most direct route from the Hartford store of the Walker Company to the West Hartford branch is to pass west on Pearl street in Hartford to Ford street, north on Ford to Asylum street, west on Asylum street to Farmington Avenue to the branch store, in all a distance of 3 1/2 miles. The route is heavily traveled, and numerous traffic lights and traffic policemen slow up traffic upon it. There is also a comparatively direct route between the two stores by way of Pearl Street, then south to Capitol Avenue, west on Capitol Avenue to Prospect street and continuing west on the boulevard to South Main street in West Hartford. This route is south of the Farmington Avenue route. It is also possible to use the Asylum Avenue route which is north of Farmington Avenue for a considerable distance. Woodland street runs practically north and south, and from the intersection of Farmington Avenue and Woodland street to the intersection of Woodland street and Homestead Avenue the scene of the accident is approximately 4,100 feet, while from Asylum and Woodland to Woodland and Homestead streets is about 2,400 feet. From Woodland street and Farmington Avenue to the intersection of Tower and Blue Hills Avenues in the Bloomfield section of Hartford is about 2.6 miles. The defendant had never restricted Ahern as to the route he should use in going to or coming from the West Hartford store.

On the Friday preceding the accident, defendant's manager had discovered Ahern in the act of transporting two girls on one of its trucks, and he at once notified him that, if such a breach of orders was again committed, he would be discharged forthwith. At about noon on the day of the accident, October 4, 1928, one of defendant's employees, Mrs. Fournier, purposed going down town in Hartford, and at about 2 o'clock going from there to the corner of Tower and Blue Hills Avenue to keep an appointment concerning her own personal business. On the day of the accident, Ahern was required to go from the West Hartford to the Hartford store some time in the afternoon, at what hour does not appear in the finding. One of the girl employees requested Ahern to wait, as Mrs. Fournier was going down with him. Finally Mrs. Fournier consented to go with Ahern, and boarded the truck. Ahern asked her what time she was due down town, and she replied she had an appointment at Tower and Blue Hills Avenue at 2 o'clock. Nothing further was said, and they started on the trip. After Ahern left the West Hartford store, and before he turned from Farmington Avenue, he intended, before going to defendant's downtown store, to go to the corner of Tower and Blue Hills Avenues for the purpose of transporting Mrs. Fournier there, and some time later, but when does not appear, to report at the downtown store. In turning from Farmington Avenue with that intent and purpose, Ahern was violating the defendant's instructions, and he continued to do so up to the time of the accident. In transporting Mrs. Fournier from the West Hartford store to the place of the accident, Ahern was violating his employer's instructions. The truck was empty at the time of the accident, and Ahern was not engaged after leaving the branch store in making deliveries on behalf of his employer, nor did its business require him to turn onto Woodland street and proceed northward thereon. Ahern drove the truck from the branch store down Farmington Avenue, and at some intersecting street turned from the Avenue up this street to Asylum Avenue, and drove east on that street until he reached the corner of Woodland street, when he turned in a northerly direction up Woodland street. Mrs. Fournier then asked him where he was going; he replied, " Blue Hills Avenue." She replied, " he was not going to take her there." He answered, " it was his lunch hour." She then ordered him to leave her at the next corner. He made no reply to this. The truck continued on up Woodland street until it reached a point a short distance north of the intersection of Woodland street and Homestead Avenue, when the plaintiff, who was walking in a northerly direction on the sidewalk on the east side of Woodland street, was struck and injured by the truck of the defendant while being driven by Ahern, whose negligence was the proximate cause of the plaintiff's injuries.

James W. Carpenter, of Hartford, for appellant W. W. Walker Co.

David A. Wilson, of Hartford, for appellee Hickson.

John C. Blackall, of Hartford, for appellee Ryan.

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

WHEELER, C.J. (after stating the facts as above).

The defendant company, the only appellant, will herein be designated, as it has been in the statement, as the defendant. It assigns as error the refusal of the trial court to strike out paragraph 6 from the finding which recites that the defendant knew that it was the practice of its truck drivers to use the trucks for the purpose of going to lunch, and never discharged any of them for using the trucks for that purpose. The only evidence upon this point was that of the manager of defendant, who testified that he instructed Ahern not to use the truck except to go back and forth between the stores unless he had specific instructions from him. On cross-examination, the manager testified that he did not know of any of the defendant's trucks taking its employees home to lunch, and that this was against the rules. Subsequently to the question, " Can truck drivers take their trucks home to lunch?" he replied, " No, they are not supposed to but I guess they do." This was not a fact within the manager's personal knowledge or information; it was a mere guess or surmise on his part. It fell far short of being testimony as to the practice, and we find nothing in his testimony, or in the questions asked, as to the fact that he had never discharged any of its drivers for using its trucks for that purpose. This assignment of error is sustained.

The appellant also assigns as error the failure of the court to strike out paragraph 23 of the finding that: " Ahern the agent of the defendant company, at the time of the accident, was on his way from the West Hartford to the Hartford store on the business of the defendant company and in the course of the employment." We determine this claimed correction of the finding from the facts in evidence and the reasonable inferences therefrom. Up to the time one of the employees told Ahern to wait and take Mrs. Fournier down town he purposed going to the main store, or perhaps first to his lunch. After she had mounted the truck, and before it had started, Ahern asked her what time she was due down town, and then learned that she had an appointment at Tower and Blue Hills Avenue at 2 o'clock. After Ahern started from the store,...