Loomis v. Hollister

• Decision Date: 24 July 1903
• Citation: 75 Conn. 718,55 A. 561
• Court: Connecticut Supreme Court
• Parties: LOOMIS v. HOLLISTER.

55 A. 561

75 Conn. 718

LOOMIS

v. HOLLISTER.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Appeal from Superior Court, Hartford County; Alberto T. Roraback, Judge.

Action by Clara A. Loomis against Wesley Hollister. From a judgment for plaintiff, defendant appeals. Affirmed.

On August 11, 1899, a heavy ice cart, drawn by a pair of horses, being the property of the defendant, collided with a wagon in which the plaintiff was seated, whereby she was thrown upon the ground and received the injuries complained of. The defendant's team was in charge of his servant, named Beebe. The following facts were claimed by the parties to have been proved: The defendant had employed Beebe the preceding May. His daily duties were, early in the morning, to take the defendant's team and deliver ice over a route covering several miles, and drive the horses back to the defendant's stables. Upon returning to the stables his duties ended for the day, until 6 o'clock, when he would ordinarily feed the horses. When Beebe was first employed, in May, the defendant went about with him in the peddling of ice, and showed him the specific route to take. On the day in question Beebe started with the team from the stables at an early hour in the morning, and was returning to the stables after making the last delivery of ice, on the natural route home, and the one specifically prescribed for him by the defendant; but instead of continuing on this route he took a roundabout and longer route for the purpose of stopping at the post office to get his paper. He went into the post office, leaving the horses mihitched and unattended. It was then about 1:30 p. m. The horses had not been fed for seven hours, and were left standing, headed towards the stables, which were about a quarter of a mile distant. While Beebe was in the post office the horses started for home, ran against the wagon of the plaintiff, and so caused her injury.

The defendant asked the court (Roraback, Judge) to charge the jury that, even if they should find that Beebe was negligent, the plaintiff could not recover against the defendant if they also find "that the driver bad departed from the route required by the service and business of the defendant for purposes of his own, and that but for such departure the injury complained of would not have happened." The court did not so charge, but did charge in respect to the deviation from the course prescribed as follows: "The defendant contends that upon the day and time in question that part of the street where the accident happened was not on Mr. Beebe's route, that he had no occasion or business to go there for the defendant, and that his being at this point was contrary to the instructions given him by the defendant in his business. Now, in treating tins question, gentlemen, I shall quote a little from our highest authority in this state on this subject The general rule relating to a question of this kind in this class of cases may be stated as follows: 'For all acts done by a servant in obedience to the express orders or directions of a master, or in the execution of the master's business within the scope of his employment, and for acts in any sense warranted by 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.' This rule tells us that the master's liability depends upon whether the acts were done within the scope of his employment. Whether, then, the alleged negligent act of the defendant in this case, for which it is now sought to make the defendant liable, was done in the execution of the defendant's business, within the scope of his employment, or not, is a question of fact, which you are to determine, like these other questions, gentlemen, from all of the evidence concerning this transaction. To repeat, the defendant contends that his servant, by going to the post office upon the day and time in question, so far deviated from ins authority—the course of his employment—as to relieve the defendant from all liability for negligence upon this occasion. In case of deviation from the scope of employment from the defendant's business, a mere departure by the servant from the strict course of duty, even for a purpose of his own, will not, in and of itself, be such a departure from the master's business as to relieve him from responsibility. Not every deviation of the servant from the strict execution of his duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely a deviation, but a total departure, from the course of the master's business, so that the servant may be said to be on a frolic of his own, the master is no longer liable for a servant's conduct. Now, gentlemen, was there such a total departure from the defendant's business when this accident occurred that the defendant is not answerable for this act of negligence, if you find that fact to exist? The plaintiff contends, gentlemen, that there has been no such deviation—no such total departure— from the business of the defendant as to permit him to escape responsibility. Well, gentlemen, that is a question of fact. And in that connection you will consider the instructions, if any, that this defendant gave to this man Reebe; you will examine the maps as to the location of these streets, if necessary, consider the defendant's business, with all of its bearings, the location of his stables, the distance by different routes, and all of the other facts and circumstances pertaining to this question; and in that way, gentlemen, you will...