Kidd v. Witt

• Decision Date: 18 November 1920
• Citation: 105 S.E. 124
• Parties: KIDD. v. DE WITT.
• Court: Virginia Supreme Court

105 S.E. 124

KIDD.

v.DE WITT.

Supreme Court of Appeals of Virginia.

Nov. 18, 1920.

Error to Circuit Court, Amherst County.

Action by Harvey F. Kidd against Clinton De Witt, Jr. Judgment for defendant, and plaintiff brings error. Affirmed.

J. T. Coleman, Jr., of Lynchburg, for plaintiff in error.

Caskie & Caskie, of Lynchburg, for defendant in error.

SAUNDERS, J. This is an action of trespass on the case by Harvey F. Kidd (plaintiff below) against Clinton De Witt, Jr. (defendant below) for damages inflicted upon the automobile of the said Kidd by the automobile of said De Witt, while the same was in charge of and being driven by the chauffeur of the latter. The pertinent facts necessary for the proper understanding and disposition of this case may be briefly stated.

De Witt, the defendant, lives in Lynchburg. Some time in April, 1919, Piney Coles, the cook of Mr. De Witt, wrote a note to Mrs. De Witt, asking permission for William Scott, De Witt's chauffeur, to take her and her husband in the defendant's Cadillac car to visit her husband's mother in Amherst. Mrs. De Witt acceded to this request, and told William, the chauffeur, that he could carry Piney over to Amherst, as requested, and bring her back. Pursuant to this authority, the chauffeur took the cook to Amherst county and delivered her at her destination. He was invited to come in and wait until the cook was ready to return, but declined to do so, and went off, returning about 5 o'clock with one Walter Mason, a friend. Having taken up the cook, the chauffeur returned to Mr. De Witt's home in Lynchburg without mishap. It does not appear precisely where William Scott took the car when he left the cook at 3 o'clock, but apparently he returned to Lynchburg, or to the outskirts of the city, for it appears from the testimony of his friend, Walter Mason, that he "got in the De Witt car about 3 o'clock, or 3:15, and that they rode over into Amherst county about the colored church, staying there about 20 minutes; that they rode up the road a little to the main road, and William asked him if he wanted to go to town; that he said he did not care; and that they came down the Amherst hill towards Lynchburg." While descending this hill at a very rapid rate, Scott ran into the automobile of the plaintiff, damaging it very seriously. Scott did not tarry to see what mischief had been done, but, proceeding on down the hill, entered upon a road that took him back through Madison, and "thence into the main road at the top of the hill." At this point he stopped, and the witness, Mason, went over to the scene of the accident. Returning to the car, the witness and Scott drove out for Piney Coles, and, taking her and husband on board, the return trip to Lynchburg, as stated supra, was made without mishap. There is no question that the defendant De Witt owned the car which inflicted the injury, or that William Scott was his regularly employed chauffeur.

The defendant demurred to the same, and, the court sustaining the demurrer, the plaintiff applied for and secured a writ of error from one of the judges of this court.

The plaintiff in error insists that the evidence discloses that at the time of the accident the chauffeur was engaged in and about the business of the defendant, and was within the scope of his employment. The action of the court holding otherwise is assigned as error. The defendant in error submits two main contentions: First, that the automobile was loaned to Piney Coles to make the trip to Amherst; second, that at the time of the accident William Scott, the chauffeur, was not engaged in and about the business of the defendant in error, the defendant, nor within the scope of his employment as chauffeur, but was acting contrary thereto, and for his own purposes or pleasure.

With respect to the first contention, it suffices to say that the evidence very clearly and sufficiently shows that the defendant's wife, who acted for her husband, the ownerof the car, did not loan the same to Piney Coles, but did authorize William Scott, in his capacity of chauffeur of the husband, to take Piney over to Amherst and bring her back. This is the clear and natural import of the evidence on this subject, fairly and reasonably construed.

Before taking up the second contention of the defendant we will dispose of the contention of the plaintiff in error that Piney Coles was in the defendant's car at the time of the accident. Of course, if this was the case, if Scott, the chauffeur, was returning to Lynchburg with defendant's cook when the negligent injury was inflicted, that fact Would be a most material and determining circumstance to establish the liability of the defendant. It was the plain direction of Mrs. De Witt to William Scott to take Piney Coles to Amherst and bring her back, and the master, or owner of the car, was clearly responsible for negligent injuries inflicted upon others by Scott, his chauffeur, in carrying out this direction.

But after the most careful and painstaking scrutiny of the evidence, we are unable to find any support for the contention that Piney Coles was in the car when the accident occurred. A finding of the trial court fixing liability upon the defendant upon a conclusion to that effect would have been manifest and palpable error.

The main facts in this case stand out in clear relief in the testimony, and one of these outstanding facts is that, after William Scott discharged Piney Coles and her husband at their point of destination, he went off on a trip of his own, and while on that trip, or joy-riding adventure, picked up Waiter Mason, and after riding him for a while the two started back to Lynchburg. The accident occurred on the return to Lynchburg. "Going down the Amherst hill to Lynchburg, " on this return, Scott practically had his back turned upon the house where he had left Piney Coles and her husband. He was not going after her, but was taking Mason to Lynchburg. Scott was joy-riding for about an hour and a half or two hours. He left Piney Coles about 3 o'clock p. m., and returned for her about 5 p. m.

Having in mind the established facts, (1) that Scott was the defendant's chauffeur, and (2) that the car that he was driving was the property of the defendant, the liability or nonliability of the latter depends upon the answer to the following inquiry: Was the chauffeur, at the time of the accident, acting within the scope of his employment and in the discharge of the master's business?

The principles of liability of motor car owners in this state are the established principles that fix the liability of the master to third persons, for torts committed by his servant resulting in injury to such persons. The advent of the automobile has introduced no new principle in this branch of the law of agency. If the liability of the owners of automobiles for torts committed by their servants is to be extended and enlarged, so as to include injuries inflicted when the servant is engaged about his own, and not the master's, business, that extension should be afforded by the legislative department in the exercise of its own proper authority.

This court has said in Blair v. Broadwater, 121 Va. 301, 93 S. E. 632, L. R. A. 1918A, 1011, that—

"The only safe course to pursue is to revert to first principles, and adhere to ancient landmarks, rather than to yield a too ready allegiance to an admittedly new principle sought to be ingrafted upon the law of master and servant and principal and agent to meet supposed exigencies of new conditions incident to the advent of automobiles."

The doctrine of respondeat superior rests upon the relation of master and servant. That relation exists in this case. But the plaintiff seeking recovery for alleged injuries must not only establish this relationship, but further: (1) That the servant, at the time of the commission of the tort, was about his master's business; and (2) that the servant was acting within the scope of his employment. This brings us to the query stated supra.

The rule or condition of liability is simple enough, and readily stated, but it is often a vexatious and perplexing question to determine whether upon some particular state of facts the master is charged with liability. The basis of liability is that one who...