Master Auto Serv. Corp. v. Bowden

• Citation: 19 S.E.2d 679
• Court: Virginia Supreme Court
• Decision Date: 13 April 1942
• Parties: MASTER AUTO SERVICE CORPORATION. v. BOWDEN.

19 S.E.2d 679

MASTER AUTO SERVICE CORPORATION.

v.BOWDEN.

Supreme Court of Appeals of Virginia.

April 13, 1942.

Error to Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Action by Cledious M. Bowden against Master Auto Service Corporation and another for personal injuries sustained in an automobile accident. To review a judgment for plaintiff, the named defendant alone brings error.

Reversed and final judgment entered for named defendant.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

R. M. Hughes, Jr., of Norfolk, for plaintiff in error.

Roland Thorp, of Norfolk, for defendant in error.

HUDGINS, Justice.

The Master Auto Service Corporation, defendant below, conducts an automobilesupply service and repair system in the city of Norfolk. On April 6, 1940, the corporation directed an employee, Levi Powell, to take one of its trucks to the plant of a customer, the Transit Mixed Concrete Corporation, to get a damaged tire from the customer, transport it to the defendant's plant, repair the tire and return it. Powell went to the customer's plant and removed the tire. After he had proceeded only one block on his return trip, a strange Negro, who claimed to be sick with a hemorrhage of the nose, asked Powell to carry him across town eighteen blocks to a drug store near the stranger's home. After discharging the stranger, Powell turned his truck around and started back to the garage of his employer. Within two blocks of the drug store on the return trip, Powell had an accident in which several people, including Cledious M. Bowden, were seriously injured. Bowden instituted this action against the Master Auto Service Corporation and Levi Powell to recover damages for personal injuries. The jury returned a verdict in the sum of $3,-500, on which judgment was entered against both defendants. This judgment is now final as to Powell. However, the Master Auto Service Corporation sought and obtained this writ of error.

The only question presented is whether Powell, at the time of the accident, was about his master's business and acting within the scope of his employment.

The Master Auto Service Corporation instructed its drivers, when sent on missions of this nature, to proceed over the most direct route to their destination, to return over the same route, and to pick up no riders going or returning. These rules and regulations were well known to Powell, who testified that, at the time he picked up the stranger and made the deviation from the direct route, he knew he was disobeying the orders of his master.

To fasten responsibility upon an employer for a tort committed by an employee under the doctrine of respondeat superior, a plaintiff must not only establish the relation of master and servant between the parties, but he must prove (1) that at the time of the commission of the tort the servant was about his master's business, and (2) that the servant was acting within the scope of his employment.

However, if it appears from the evidence that, at the time of the commission of the tort, the servant had temporarily abandoned the business of his master and was engaged in some activity of his own entirely disconnected with his master's business, then the master is not liable, although the servant was using the master's property and the injury could not have been caused without the facilities afforded to the servant by reason of his relation to the master.

Cases involving these principles are legion. The difficulty lies in determining the degree of deviation or departure from the master's business which will relieve the master of responsibility. "If the deviation is not too extensive, " the master will not be relieved. Kidd v. De Witt, Jr., 128 Va. 438, 105 S.E. 124, 126.

" * * * there is an area, beyond and around the place within which the strict terms of the employment require the servant to remain, into which common experience with, and observation of, human nature suggest that he will, as inclination dictates, probably go, this is a risk which properly belongs to the business, and injury to the public by the servant while within this area should ordinarily be accepted as a burden upon the industry itself. It is only where the employee has, for purposes of his own, departed so far from the line of his duty that for the time being his acts constitute an abandonment of his service, that the employer is not liable." 35 Am.Jur. 991.

If the deviation from the direct route or the departure from the master's business is slight, or if the deviation is marked and unusual, and there is no conflict in the evidence, the court should decide the issue. Between these two extremes, the facts and circumstances disclosed may be such as to carry the issue to the jury. The record before us reveals that there is no conflict in the evidence. The question is one of law and should have...