Leuthold v. Goodman

• Decision Date: 15 March 1945
• Docket Number: 29536.
• Parties: LEUTHOLD et al. v. GOODMAN.
• Court: Washington Supreme Court

157 P.2d 326

22 Wn.2d 583

LEUTHOLD et al. v. GOODMAN.

No. 29536.

Supreme Court of Washington

March 15, 1945

Department 1.

Action by W. M. Leuthold and others, a copartnership doing business as Deer Park Lumber Company, against Roy Goodman and another for personal injuries and property damage. Judgment for plaintiffs, and the named defendant appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Ralph E. Foley, judge.

Witherspoon Witherspoon & Kelley, of Spokane, for appellant.

Edge Davenport, Keith & dePender, of Spokane, for respondents.

STEINERT Justice.

This was an action for damages for personal injuries and property impairment resulting from a collision involving two motor vehicles, at a point within a street intersection. Plaintiff composing a copartnership, were the owners of a Lincoln Zephyr sedan which was struck by an International delivery truck owned by the defendant Roy Goodman and operated at the time of the accident by his employee, John Prater, who was also a defendant in the proceedings Before the superior court. The cause was tried to the court without a jury. Findings were made and judgment was entered in favor of the plaintiffs against both of the defendants. The defendant Goodman alone has appealed. We shall hereinafter refer to the plaintiff W. M. Leuthold as though he were the sole respondent; to the defendant Roy Goodman, as appellant; and to the driver, John Prater, by name or as defendant.

Two questions are presented upon the appeal: (1) whether Prater, the driver of appellant's delivery truck, was within the scope of his employment in driving the truck at all on the day of the accident; and (2) whether, in driving the truck on that day, Prater so far deviated from his necessary course of travel as to place him wholly outside the scope of his employment at the time of the collision.

Appellant is a piano dealer, having his place of business at 909 Riverside avenue, in the city of Spokane. Defendant, John Prater, is an experienced piano workman and truck body builder, and for a number of years prior to the time here involved had also been in the transfer business. From March, 1942, to the time of the accident he was employed by the appellant as a general handy man about the latter's store, particularly to work on piano cases, deliver pianos, and keep the delivery truck in repair. Prater's home, located at 1718 Maxwell avenue, was about twenty-two blocks northwesterly from appellant's place of business.

Sometime prior to the day of the accident, appellant had authorized and employed Prater to change the construction of the body on the delivery truck so as to make it more suitable for the loading and transportation of pianos. This work was to be done on Sundays at Prater's home, and for such employment he was to receive extra compensation. A part of this construction work was done by Prater on the Sunday preceding the day of the accident, and on the following Saturday, which was the day Before the occurrence of the collision, he was again authorized and directed by appellant to take the truck home that evening in order to work on it the next day.

The evidence discloses, without substantial dispute, that on that same Saturday appellant directed Prater to remove a quantity of rubbish from the basement of the store, load it on the truck, and haul it to a 'free public dump' located about seven miles east of the store, or about nine miles east of Prater's residence. Appellant did not give Prater any directions or impose upon him any limitations as to the time, manner, or route to be taken in hauling away the rubbish, except that it was to be removed from the basement on that day. Prater loaded the rubbish onto the truck that afternoon and at about six o'clock, which was his usual quitting time, left the store, with the loaded truck, and went to his home.

Early the next morning, Sunday, Prater at his place of residence loaded several of his own cans of garbage onto the truck, then drove to the public dump, where he deposited the rubbish and garbage, and thereupon started on the return trip toward his home, intending there to complete his work on the body of the truck. On the return trip, he drove along the usual course, westerly on Mission avenue, as far as Division street which runs north and south. Mission avenue extends several blocks westerly beyond Division street, then terminates, and does not appear again as a continuous open street until its projected course reaches Cedar street, at a point about three blocks east and one block north of Prater's residence located on Maxwell avenue near the corner of Ash street.

Had Prater, on arriving at the intersection of Mission avenue and Division street, proceeded toward his home by the usual, best, and shortest route, he would have turned south at that intersection, driven to Boone avenue, a distance of three blocks, then turned west on Boone avenue, driven as far as Ash street, a distance of approximately eighteen blocks, then turned north on Ash street and driven three blocks to his home, covering in all about twenty-four blocks, or approximately two miles, in that portion of the trip.

Instead of taking that course, however, Prater turned north at the intersection of Mission avenue and Division street and proceeded a distance of five blocks to Knox avenue, where he intended to turn west and go to the home of his daughter residing one block west of Division street. His purpose in taking that route was to pick up his daughter and grandchild and take them to his home for dinner on that day.

There are several through streets leading respectively west and south from the intersection of Knox avenue and Division street to Maxwell avenue and Ash street, where Prater lived, although, as appears from the evidence, that course would have been six blocks longer than the route by way of Boone avenue, as above described.

Arriving at the intersection of Division street and Knox avenue, Prater turned to his left to cross the avenue, and in doing so propelled the truck against the Lincoln Zephyr sedan which the respondent was then driving southwardly along Division street across the intersection. As a result of the collision respondent sustained serious personal injuries and his car was measurable damaged.

On this appeal there is no dispute as to the fact of Prater's negligence, nor is there any contention made here that respondent was contributorily negligent. The only questions which are presently raised relate to the scope of Prater's employment on the day and at the time of the collision.

The rule of law is well settled that the master is liable for the negligence of his servant when committed in the execution of the master's business, within the scope of the servant's employment. George v. Carstens Packing Co., 91 Wash. 637, 158 P. 529; Carlson v. P. F. Collier & Son Corp., 190 Wash. 301, 67 P.2d 842; Rice v. Garl, 2 Wash.2d 403, 98 P.2d 301; 5 Am.Jur. 709, Automobiles, § 373; 42 C.J. 1094, 1099, Motor Vehicles, §§ 855, 861. The foregoing authorities all relate to the operation of motor vehicles.

With reference to the first question here under consideration, it is clear from the evidence that Prater was acting within the scope of his employment in using the truck for the purpose of delivering the load of rubbish to the public dump and making a return trip to his home, where the intended work upon the truck body was to be performed on that same day. Appellant had authorized Prater to take possession of the truck on the evening Before , had instructed him to transport the load of rubbish to the dump, and had employed him to continue with the work of reconstructing the body of the vehicle while in his possession over the week end. The hours during which Prater was expected to make the fourteen or sixteen mile trip to the public dump were left entirely to his own convenience and discretion, and the mere fact that Prater added to the load of rubbish from the store a quantity of garbage at his home in no way legally changed the scope of his employment or lessened his authority with reference to making the Sunday trip.

The second question, which relates to Prater's alleged deviation from the scope of his employment shortly Before the happening of the accident, is the determinative question in this case.

It is the generally accepted rule that where a servant or employee in charge of his master's or employer's automobile engages upon a mission in furtherance of his master's business, but in the course of such engagement completely forsakes the purpose of his employment and enters upon a mission entirely his own, and while so engaged negligently injures the person or damages the property of another, the master or employer is not thereby rendered liable to the injured party or to the owner of the damaged property.

In 5 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., p. 175,§ 3029, it is stated: 'The general rule is that a servant in charge of his master's automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondeat superior.'

The general rule is similarly expressed in 4 Beery, Automobiles, 7th Ed., 617, § 4.369.

In Savage v. Donovan, 118 Wash. 692, 204 P. 805, 806 we followed that rule, and, after reciting the peculiar facts of that case, stated: 'In cases of this general kind a deviation in the line of travel is often troublesome in the determination of essential and ultimate facts, but never so if it be true, as here, that the deviation is marked and continuous and in no way called for in...