Kohlman v. Hyland

• Decision Date: 16 October 1926
• Docket Number: No. 4992.,4992.
• Parties: KOHLMAN v. HYLAND.
• Court: North Dakota Supreme Court

54 N.D. 710

210 N.W. 643

KOHLMAN

v.HYLAND.

No. 4992.

Supreme Court of North Dakota.

Oct. 16, 1926.

Syllabus by the Court.

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, the 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.

For reasons stated in the opinion, it is held that the question whether the deviation of the servant, who was driving an automobile belonging to the defendant, from the prescribed route resulted in such an abandonment of the master's service as to exonerate the latter from liability on account of the servant's tortious acts, is one of fact to be determined by the jury, and not as a matter of law to be decided by the court.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Johnnie Kohlman, by L. J. Kohlman, his guardian ad litem, against M. S. Hyland. From a judgment for defendant, plaintiff appeals. Reversed, and a new trial ordered.

Burke, J., dissenting.

P. M. Paulsen, of Fargo, for appellant.

Francis Murphy and Shure & Murphy, all of Fargo, for respondent.

JOHNSON, J.

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 13, 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, on the morning of July 21st, left Hillsboro in a runabout, 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 one 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 100 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, S. L. 1923, or any possible bearing it might have upon any procedural question.

[1] 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.

[2] 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 latter was completely absolved from liabilityfor 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 dismissed 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, etc., 15 Times L. R. (C. A.) 246; McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490;Perlstein v. Am. Exp. Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959; Stone v. Hills, 45 Conn. 47, 29 Am. St. Rep. 635; Patterson v. Kates (C. C.) 152 F. 481;Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115; Labatt, Master and Servant (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 but 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. H. Koehler, 41 App. Div. 426, 58 N. Y. S. 863;Jones v. Weigand, 134 App. Div. 644, 119 N. Y. S. 441;Riordan v. Gas Cons. Ass'n, 4 Cal. App. 639, 88 P. 809;Chicago Consol. Co. v. McGinnis, 86 Ill. App. 38;Weber v. Lockman, 66 Neb. 469, 92 N. W. 591, 60 L. R. A. 313;Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361.

The undisputed testimony shows that the injury occurred after the visit at McVille had taken place, and while the servant was on his way back to Carrington, the designated destination for that day, and back to the route which his master had prescribed for him. The rule has been adopted in many American jurisdictions that the master may be held...