Howard v. The Marshall Motor Company

• Citation: 106 Kan. 775,190 P. 11
• Decision Date: 08 May 1920
• Docket Number: 22,643
• Parties: FANNIE HOWARD, Appellee, v. THE MARSHALL MOTOR COMPANY, and THE PACKARD-WICHITA MOTOR COMPANY, Appellants
• Court: United States State Supreme Court of Kansas

190 P. 11

106 Kan. 775

FANNIE HOWARD, Appellee, v. THE MARSHALL MOTOR COMPANY, and THE PACKARD-WICHITA MOTOR COMPANY, Appellants

No. 22,643

Supreme Court of Kansas

May 8, 1920

Decided January, 1920.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Negligence of Servant in Driving Automobile--Injuries--Liability of Master. Where an employee is sent in an automobile upon an errand and during the return trip by a direct route inflicts injury in consequence of his reckless driving, the liability of his employer to the injured person is not affected by the fact that he had taken a friend in the car with him and was speeding for their common enjoyment.

2. TRIAL--Voir Dire Examination of Juror. The decision of the trial court as to the good faith of questions asked of a juror on his voir dire held to be final.

Fred Stanley, Claude C. Stanley, Benjamin F. Hegler, and George Siefkin, all of Wichita, for the appellants.

Robert C. Foulston, and George H. Beach, both of Wichita, for the appellee.

Mason J. West, J. concurring specially.

OPINION

MASON, J.:

Lemuel Miller, a porter in the employ of two motor companies at their garage and salesroom, was driving an automobile along the street at a speed estimated at from thirty-five to fifty miles an hour, when he ran into another car on a cross street with such violence as to drive it upon the sidewalk, injuring Fannie Howard, who was standing there. She brought action against the companies and obtained a judgment against them, from which they appeal.

1. They contend that the evidence did not warrant a finding that at the time of the injury Miller was engaged in the services of his employers, but on the other hand showed conclusively that he was driving for his own pleasure. Miller as a witness for the plaintiff gave evidence tending to show these facts:

He was called the head porter. His duties included washing and cleaning cars, delivering them, and demonstrating cars--doing the driving. When the general manager of the companies wanted a man for work around the garage Miller would bring one to him. On the day of the accident Miller backed a car out of the garage to let another one through, and while he was still in the car (which belonged to a customer) the manager told him to go and find a suitable porter and put him to work washing a car which was then on the rack. Without getting out of the car he drove several blocks to a barber shop where he thought he could find two men that he had in view for the purpose.

He was not asked whether he found either of the men for whom he was looking, and his testimony did not specifically cover that point. It might be inferred, however, that they were not there, for he testified that after going to the barber shop he started back to the garage and was on the way there when the collision took place.

Much of this evidence was contradicted, but that of course is not now material. If the jury credited it, and that must be assumed, the conclusion was justified that Miller at the time of the accident was driving the car while upon an errand for his employers--while returning to the garage after having made the trip upon which he had gone in their behalf. In that situation there can be no doubt of the liability of the defendants for the consequences of his negligent driving.

The defendants introduced evidence, which the jury by their special findings showed that they believed, that as Miller turned his car near the barber shop he saw a friend who, at his invitation to go on a spin with him, got into the car and accompanied him on the remainder of the trip, the accident occurring on a direct route to the defendant's place of business.

In returning with the car to the garage Miller was as much in his employers' service as while he was on the outbound part of the journey. (Thompson v. Machinery Co., 96 Kan. 259, 150 P. 587.) And the fact that he took a friend on board to enjoy with him the pleasure of a run in violation of the speed limit...