Kohlman v. Hyland
| Decision Date | 16 October 1926 |
| Citation | 210 N.W. 643,54 N.D. 710 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Cass County, Cole, J.
Reversed and new trial ordered.
Judgment reversed and a new trial ordered.
P. M Paulson, for appellant.
"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." Stone v Hills, 45 Conn. 47, 29 Am. Rep. 635.
"And where the servant has made a temporary departure from the service of his master, and the object of that departure has been accomplished and the servant re-engaged in the discharge of his duty, the responsibility of the master for the servant's acts immediately attaches." 18 R. C. L. 797.
Francis Murphy and Shure & Murphy, for respondent.
"That if a servant by his negligence does any damage to a stranger, the master shall be answerable for his negligence, but the damage must be done while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehavior." Blackstone's Commentaries.
Plaintiff, a minor, brings this action to recover damages on account of personal injuries. The case was tried to a jury and, at the conclusion of the plaintiff's case, a motion to dismiss was made by the defendant and granted by the trial court on the ground, principally, that the plaintiff had failed to establish liability as a matter of law.
The plaintiff, a boy of thirteen, was, on July 21, 1923, injured in a collision with an automobile belonging to the defendant. The accident occurred near the city of New Rockford, this state. The defendant is an electrical contractor, engaged in the business of building and repairing telephone lines. At the time of the accident, one Ludwig was employed as foreman by the defendant, and, in the morning of July 21, left Hillsboro in a run-about en route to McKenzie county, to build some telephone lines for his employer. He was accompanied by one Sinner, also an employee of the defendant, and the defendant's son, Benny. They carried a box of tools, etc., in the car, to be used in connection with the proposed work. The defendant instructed Ludwig, before the latter left Hillsboro, to proceed to McKenzie county by way of Mayville, Finley, Cooperstown, and Carrington, and directed him to remain in Carrington over night. He followed the prescribed route as far as Finley, where he departed therefrom at the request of Sinner and proceeded to the city of McVille, in a northwesterly direction. They remained at McVille about one hour, and then left for Carrington by way of New Rockford. The Kohlmans lived east of New Rockford and, at the time of the accident, were driving in an easterly direction on the so-called Tiffany highway. About a mile east of New Rockford, they were struck by the car driven by Ludwig. The car was going west, towards New Rockford, en route to Carrington. As a result of the collision, plaintiff was injured.
The motion to dismiss made by the defendant at the close of the plaintiff's case was based principally upon the ground that the servant Ludwig had been instructed by the defendant to proceed along a certain route; that after he left Hillsboro and on his way to McKenzie county, he departed from the route, thus laid out for him, going upon a business of his own, or that of another, and that in doing so, he abandoned the business of his master and, consequently, the latter was not responsible for any tortious act committed by him during the time he was thus engaged and off the route laid out for him by the defendant.
The plaintiff called Ludwig to prove the employment. The defendant, over objection, elicited from Ludwig the information, under cross-examination, that he had specific instructions as to the route to be taken and that he departed therefrom. It is strenuously urged by the plaintiff that this was improper cross-examination. This question, however, does not become important unless it be held by this court that the testimony thus produced warranted a dismissal of the action upon the ground that it showed such a deviation from the employment as to amount to an abandonment thereof as a matter of law.
Hillsboro is in Traill county, in the eastern part of the state; McKenzie county is in the extreme Western part of the state, almost due west from Traill county; a part of McKenzie county extends north beyond a line due west from Hillsboro. The route prescribed for Ludwig by the defendant took the servant through Mayville, Finley, Cooperstown to Carrington, the latter being the destination to be reached the first day. Carrington is almost straight west from Hillsboro. The servant followed this route as far as Finley which is west and somewhat north of the city of Hillsboro; at Finley, Ludwig proceeded northwest to the city of McVille instead of going west and a little south, to the cities of Cooperstown and Carrington, as he had been instructed. McVille is 15 or 20 miles northwest from Finley. After the visit at McVille had ended, Ludwig and his associates proceeded to Carrington by way of New Rockford, the latter city being about 18 miles due north from Carrington. It was within 1 mile of New Rockford that the accident occurred. The deviation from the route prescribed for Ludwig took him about 18 miles north and altogether made the trip from Hillsboro to Carrington approximately 36 miles longer. Following the route prescribed, the distance from Hillsboro to Carrington is about one hundred miles. Of course, had the servant followed this prescribed route, it would not have been necessary to go through New Rockford and he would not have met the plaintiff and there would have been no collision.
No question was made in the trial court, nor is there here, respecting the power of the lower court to make the order dismissing the action. The plaintiff made no objection to the motion upon the ground that the issues of fact must be submitted to the jury; he argued the motion on the merits. There is, therefore, no occasion to consider chapter 335, Session Laws 1923, or any possible bearing it might have upon any procedural question.
In order to establish the liability of a master to a third person, to whom he owes no contractual duty, for the negligent act of his servant, this burden is on the plaintiff to prove, by a fair preponderance of the evidence, that the tort-feasor was a servant of the master, working under his control, when the injury was sustained, and that the negligent act was done within the course of the employment.
The contention of the defendant is that the deviation from the prescribed route which we have described amounted, as a matter of law, to an abandonment of the affairs of the defendant, as master, and that, consequently, the later was completely absolved from liability for any act of negligence of which Ludwig may have become guilty while he was thus pursuing his own business or pleasure. The court adopted the view of counsel for the defendant and dismissal the action.
The proposition stated appears to have the sanction of judicial precedent, both in the United States and in England; and rests upon the assumption that the relation of master and servant is suspended at the moment of time when the substantial deviation commences and that, as a logical consequence, the only question of fact for the consideration of the jury is the object of the departure from the appointed course. Hence, as in this case, when the deviation and its purpose are not in dispute and it appears beyond reasonable controversy that the purpose had no connection with the duties of the servant, there is no liability, according to this view, and it is the duty of the court to dismiss the action or direct a verdict, or, if a verdict has been rendered in favor of the plaintiff, to set it aside on motion. This rule has been adopted in the English courts and in some American Jurisdictions. See Hatch v. London & N.W. R. Co., 15 Times L. R. 246,--C. A.; McCarthy v. Timmins, 178 Mass. 378, 86 Am. St. Rep. 490, 59 N.E. 1038; Perlstein v. American Exp. Co., 177 Mass. 530, 52 L.R.A. 959, 59 N.E. 194; Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635; Patterson v. Kates (C. C.), 152 F. 481; Healey v. Cockrill, 133 Ark. 327, L.R.A. 1918D, 115, 202 S.W. 229; Labatt Mast. & S. 2d ed. § 2295.
In another line of cases the rationale of the decisions seems to be that the plaintiff is not precluded from recovering merely because the purpose of the deviation had to do with something which did not concern the master; and the effect of the testimony is primarily a question for the jury unless the circumstances be such that reasonable minds could draw a single inference therefrom. In this view, it has been said, the nature or quality of the deviation is one of "degree," and the principal question is whether the departure from the instructions indicates merely disobedience or want of faithful attention to duty, or shows a complete abandonment of the master's business. See Williams v. Koehler, 41 A.D. 426, 58 N.Y.S. 863; Jones v. Weigand, 134 A.D. 644, 119 N.Y.S. 441; Riordan v. Gas Consumers' Asso. 4 Cal.App. 639, 88 P. 809; Chicago Consol. Bottling Co. v. McGinnis, 86 Ill.App. 38; ...
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