Loux v. Harris

• Decision Date: 05 March 1924
• Docket Number: No. 125.,125.
• Citation: 197 N.W. 494,226 Mich. 315
• Parties: LOUX v. HARRIS.
• Court: Michigan Supreme Court

226 Mich. 315

197 N.W. 494

LOUX

v.HARRIS.

No. 125.

Supreme Court of Michigan.

March 5, 1924.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Pauline Loux against Claude Harris. Judgment for defendant, and plaintiff brings error. Reversed and new trial granted.

Argued before CLARK, C. J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. John M. Dunham, of Grand Rapids, for appellant.

Cornelius Hoffius and Dorr Kuizema, both of Grand Rapids, for appellee.

WIEST, J.

September 30, 1922, defendant owned and operated an automobile garage, in Grand Rapids, where, upon depositing meney, persons were rented automobiles to be driven by themselves. He also sold gasoline. His garage was open nights. Gerrit Wagner was in his employ in charge of the garage as night man, with instructions not to leave the garage, drive any automobile, or go to help any renter in trouble. About 11 o'clock that night a party, who had rented one of defendant's automobiles, telephoned the garage that he was out in the country near the Soldiers' Home and had run out of gasoline. Wagner asked an employee of defendant at another garage, who happened to be present, to see to the garage, and drove one of defendant's automobiles with gasoline to the stranded renter, and while returning to the garage struck and injured plaintiff.

We are not concerned with the particulars of the accident. At the trial plaintiff called defendant and Wagner as witnesses, and their testimony disclosed that Wagner's act was in violation of instructions to not leave the garage or use any automobile and to notify defendant if any renter was in trouble that defendant might attend personally to the matter. The learned circuit judge, finding no disputed question of fact, held defendant not liable for Wagner's act and directed the jury to render a verdict of not guilty.

Plaintiff assigns error, claiming the jury should have been allowed to pass upon the testimony and that, as a matter of law, defendant was liable under the facts. Disposition of the last point will render the first one of no consequence. The case seems to have been tried on the theory that the motor vehicle law relative to civil actions (C. L. 1915, § 4825) governed the question of defendant's liability. In directing the verdict, the trial judge said:

‘The statute relative to actions for damages for negligence provides, however, the in substance the owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of said motor vehicle whether such negligence consists in a violation of the provisions of the statute of this state or in the failure to observe such ordinary care in such operation as the common law requires; provided, that the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.’

Defendant insists, notwithstanding the relation of master and servant, the trial judge was right in directing a verdict under the undisputed evidence, because the servant was driving the automobile in disobedience of instructions.

The declaration charged defendant with liability as master of Wagner. Defendant admitted the relation, denied Wagner was acting within the scope of his employment, and had verdict in his favor, because Wagner disobeyed his instructions. Was the trial judge in error in directing a verdict for defendant? The motor vehicle law mentioned has no bearing on the case. That law expressly provides:

‘Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employee or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them.’

This suit is an action by a third person against the owner of an automobile for a tort committed by a servant while about his master's business. The motor venicle statute extends liability of an owner to cases other than master and servant where an injury is occasioned by the negligent operation of an automobile ‘being driven by the express or implied consent or knowledge of such owner.’ This, however, is a common-law action against a master for the negligence of his servant while about the master's business, and, in considering the legal questions, the statute relied upon in the court below must be laid entirely aside. An extended examination of text-books and case law upon the subject of liability of a master for torts of a servant discloses quite general agreement upon certain principles. Some of such principles will be mentioned, for we intend to apply them.

Selling gasoline was a part of defendant's business, and, therefore, within the scope of Wagner's employment. Wagner violated instructions in taking the gasoline to the stranded renter of one of defendant's cars. In doing this was he about the business of defendant, or was his act a severance in and of itself of his relation to his master's business? Was he driving on his master's business? Certainly he was not driving on his own affair. Disobedience of how to handle business placed in his charge did not relieve the master. The liability of defendant depends upon whether Wagner, in taking gasoline to the renter of one of defendant's cars was acting within the scope of his employment.

In Riley v. Roach, 168 Mich. 294, 307, 134 N. W. 14, 19 (37 L. R. A. [N. S.] 834), it was said:

‘The phrase ‘in the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master's business.'

See, also, Hartley v. Miller, 165 Mich. 115, 130 N. W. 336,35 L. R. A. (N. S.) 81;Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316;Hill v. Haynes, 204 Mich. 536, 170 N. W. 685.

Wagner was authorized to sell gasoline at the garage. He made a sale of what he was employed to sell, but delivered the article in disobedience of instructions given him by his master, and employed defendant's vehicle in doing so, contrary to the master's instructions. He was,...